Exhibit 10.1


 


Published CUSIP Number: 855031AE0


 


 


CREDIT
AGREEMENT


 


 


dated as of November 4, 2010


 


 


STAPLES,
INC.,


as the
Borrower,


 


 


THE
LENDERS NAMED HEREIN,


 


 


BANK OF AMERICA, N.A.,


as Administrative Agent,


 


 


BARCLAYS CAPITAL and


HSBC BANK USA, NATIONAL
ASSOCIATION,


as Co-Syndication Agents,


 


and


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION and


JPMORGAN CHASE BANK, N.A.,


as Co-Documentation Agents


 


 


with


 


 


MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


BARCLAYS
CAPITAL and


HSBC
SECURITIES (USA) INC.


Having Acted as Joint Lead
Arrangers and Joint Bookrunners


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  §1.

  	
  DEFINITIONS AND RULES OF
  INTERPRETATION

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §1.1.

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
  §1.2.

  	
  Rules of Interpretation

  	
   

  	
  22

  
	
   

  	
  §1.3.

  	
  Exchange Rates; Currency
  Equivalents

  	
   

  	
  23

  
	
   

  	
  §1.4.

  	
  Additional Alternative Currencies

  	
   

  	
  23

  
	
   

  	
  §1.5.

  	
  Change of Currency

  	
   

  	
  24

  
	
   

  	
  §1.6.

  	
  Letter of Credit Amounts

  	
   

  	
  24

  
	
   

  	
  §1.7.

  	
  Accounting Terms

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §2.

  	
  THE REVOLVING CREDIT FACILITY

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §2.1.

  	
  Commitment to Lend Revolving
  Credit Loans

  	
   

  	
  25

  
	
   

  	
  §2.2.

  	
  Requests for Revolving Credit
  Loans

  	
   

  	
  26

  
	
   

  	
  §2.3.

  	
  Intentionally Omitted

  	
   

  	
  26

  
	
   

  	
  §2.4.

  	
  Funds for Revolving Credit Loans

  	
   

  	
  26

  
	
   

  	
  §2.4.1.

  	
  Funding Procedures

  	
   

  	
  26

  
	
   

  	
  §2.4.2.

  	
  Advances by Administrative Agent

  	
   

  	
  27

  
	
   

  	
  §2.5.

  	
  Reduction of Total Commitment

  	
   

  	
  28

  
	
   

  	
  §2.6.

  	
  Maturity and Other Mandatory
  Repayments of Revolving Credit Loans

  	
   

  	
  28

  
	
   

  	
  §2.7.

  	
  Optional Repayments of Revolving
  Credit Loans

  	
   

  	
  29

  
	
   

  	
  §2.8.

  	
  Interest on Revolving Credit Loans

  	
   

  	
  30

  
	
   

  	
  §2.9.

  	
  Conversion Options

  	
   

  	
  30

  
	
   

  	
  §2.9.1.

  	
  Conversion to Different Type of
  Revolving Credit Loan

  	
   

  	
  30

  
	
   

  	
  §2.9.2.

  	
  Continuation of Type of Revolving
  Credit Loan

  	
   

  	
  31

  
	
   

  	
  §2.9.3.

  	
  Eurocurrency Rate Loans

  	
   

  	
  31

  
	
   

  	
  §2.10.

  	
  The Swing Line

  	
   

  	
  31

  
	
   

  	
  §2.10.1.

  	
  The Swing Line Loans

  	
   

  	
  31

  
	
   

  	
  §2.10.2.

  	
  Notice of Borrowing

  	
   

  	
  32

  
	
   

  	
  §2.10.3.

  	
  Interest on Swing Line Loans

  	
   

  	
  32

  
	
   

  	
  §2.10.4.

  	
  Repayment of Swing Line Loans

  	
   

  	
  32

  
	
   

  	
  §2.11.

  	
  Evidence of Debt

  	
   

  	
  33

  
	
   

  	
  §2.12.

  	
  Increase in Commitments

  	
   

  	
  33

  
						



 


i

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  §3.

  	
  LETTERS OF CREDIT

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §3.1.

  	
  Letters of Credit

  	
   

  	
  35

  
	
   

  	
  §3.2.

  	
  Procedures for Issuance and
  Amendment of Letters of Credit; Auto-Extension of Letters of Credit

  	
   

  	
  37

  
	
   

  	
  §3.3.

  	
  Drawings and Reimbursements

  	
   

  	
  38

  
	
   

  	
  §3.4.

  	
  Repayment of Participations

  	
   

  	
  40

  
	
   

  	
  §3.5.

  	
  Obligations Absolute

  	
   

  	
  41

  
	
   

  	
  §3.6.

  	
  Role of Issuing Banks

  	
   

  	
  41

  
	
   

  	
  §3.7.

  	
  Applicability of ISP and UCP

  	
   

  	
  42

  
	
   

  	
  §3.8.

  	
  Transitional Letters of Credit

  	
   

  	
  42

  
	
   

  	
  §3.9.

  	
  Letter of Credit Fee

  	
   

  	
  43

  
	
   

  	
  §3.10.

  	
  Conflict with Issuer Documents

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §4.

  	
  CERTAIN GENERAL PROVISIONS; FEES

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §4.1.

  	
  Closing, Administrative Agent and
  Other Fees

  	
   

  	
  43

  
	
   

  	
  §4.2.

  	
  Facility Fee

  	
   

  	
  43

  
	
   

  	
  §4.3.

  	
  Funds for Payments

  	
   

  	
  44

  
	
   

  	
  §4.3.1.

  	
  Payments to Administrative Agent

  	
   

  	
  44

  
	
   

  	
  §4.3.2.

  	
  No Offset, Etc

  	
   

  	
  44

  
	
   

  	
  §4.3.3.

  	
  Taxes

  	
   

  	
  44

  
	
   

  	
  §4.4.

  	
  Computations

  	
   

  	
  48

  
	
   

  	
  §4.5.

  	
  Inability to Determine
  Eurocurrency Rate

  	
   

  	
  48

  
	
   

  	
  §4.6.

  	
  Illegality

  	
   

  	
  49

  
	
   

  	
  §4.7.

  	
  Additional Costs, Etc

  	
   

  	
  49

  
	
   

  	
  §4.8.

  	
  Capital Adequacy

  	
   

  	
  50

  
	
   

  	
  §4.9.

  	
  Certificate

  	
   

  	
  51

  
	
   

  	
  §4.10.

  	
  Compensation for Losses

  	
   

  	
  51

  
	
   

  	
  §4.11.

  	
  Interest After Default

  	
   

  	
  52

  
	
   

  	
  §4.12.

  	
  Replacement of Individual Lenders

  	
   

  	
  52

  
	
   

  	
  §4.13.

  	
  Additional Reserve Requirements

  	
   

  	
  52

  
	
   

  	
  §4.14.

  	
  Guaranties

  	
   

  	
  53

  
						



 


ii

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §4.15.

  	
  Cash Collateral

  	
   

  	
  54

  
	
   

  	
  §4.16.

  	
  Defaulting Lenders

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §5.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §5.1.

  	
  Corporate Authority

  	
   

  	
  57

  
	
   

  	
  §5.1.1.

  	
  Incorporation; Good Standing

  	
   

  	
  57

  
	
   

  	
  §5.1.2.

  	
  Authorization

  	
   

  	
  57

  
	
   

  	
  §5.1.3.

  	
  Enforceability

  	
   

  	
  57

  
	
   

  	
  §5.2.

  	
  Governmental Approvals

  	
   

  	
  57

  
	
   

  	
  §5.3.

  	
  Title to Properties; Leases

  	
   

  	
  58

  
	
   

  	
  §5.4.

  	
  Financial Statements; Fiscal Year

  	
   

  	
  58

  
	
   

  	
  §5.5.

  	
  No Material Changes, Etc

  	
   

  	
  58

  
	
   

  	
  §5.6.

  	
  Franchises, Patents, Copyrights,
  Etc

  	
   

  	
  59

  
	
   

  	
  §5.7.

  	
  Litigation

  	
   

  	
  59

  
	
   

  	
  §5.8.

  	
  Compliance with Other Instruments,
  Laws, Etc

  	
   

  	
  59

  
	
   

  	
  §5.9.

  	
  No Event of Default

  	
   

  	
  59

  
	
   

  	
  §5.10.

  	
  Investment Company Act

  	
   

  	
  59

  
	
   

  	
  §5.11.

  	
  Employee Benefit Plans

  	
   

  	
  59

  
	
   

  	
  §5.12.

  	
  Regulations U and X, Etc

  	
   

  	
  61

  
	
   

  	
  §5.13.

  	
  Environmental Compliance

  	
   

  	
  61

  
	
   

  	
  §5.14.

  	
  Foreign Assets Control
  Regulations, Etc

  	
   

  	
  62

  
	
   

  	
  §5.15.

  	
  Subsidiaries, Etc

  	
   

  	
  62

  
	
   

  	
  §5.16.

  	
  Taxpayer Identification Numbers

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §6.

  	
  AFFIRMATIVE COVENANTS OF THE
  BORROWER

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §6.1.

  	
  Punctual Payment

  	
   

  	
  62

  
	
   

  	
  §6.2.

  	
  Maintenance of Office

  	
   

  	
  62

  
	
   

  	
  §6.3.

  	
  Records and Accounts

  	
   

  	
  63

  
	
   

  	
  §6.4.

  	
  Financial Statements, Certificates
  and Information

  	
   

  	
  63

  
	
   

  	
  §6.5.

  	
  Notices

  	
   

  	
  65

  
	
   

  	
  §6.6.

  	
  Legal Existence; Maintenance of
  Properties

  	
   

  	
  66

  
	
   

  	
  §6.7.

  	
  Insurance

  	
   

  	
  66

  
						



 


iii

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §6.8.

  	
  Taxes

  	
   

  	
  67

  
	
   

  	
  §6.9.

  	
  Inspection of Properties and
  Books, Etc

  	
   

  	
  67

  
	
   

  	
  §6.10.

  	
  Compliance with Laws, Contracts,
  Licenses, and Permits

  	
   

  	
  68

  
	
   

  	
  §6.11.

  	
  Use of Proceeds

  	
   

  	
  68

  
	
   

  	
  §6.12.

  	
  Licenses and Permits

  	
   

  	
  68

  
	
   

  	
  §6.13.

  	
  Guaranties

  	
   

  	
  68

  
	
   

  	
  §6.14.

  	
  Further Assurances

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §7.

  	
  CERTAIN NEGATIVE COVENANTS OF THE
  BORROWER

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §7.1.

  	
  Restrictions on Indebtedness

  	
   

  	
  69

  
	
   

  	
  §7.2.

  	
  Restrictions on Liens

  	
   

  	
  71

  
	
   

  	
  §7.3.

  	
  Restrictions on Investments

  	
   

  	
  73

  
	
   

  	
  §7.4.

  	
  Distributions

  	
   

  	
  74

  
	
   

  	
  §7.5.

  	
  [Intentionally Omitted.]

  	
   

  	
  74

  
	
   

  	
  §7.6.

  	
  Merger and Consolidation;
  Acquisitions

  	
   

  	
  74

  
	
   

  	
  §7.7.

  	
  Disposition of Assets and
  Sale-Leaseback Transactions

  	
   

  	
  75

  
	
   

  	
  §7.8.

  	
  Subordinated Debt

  	
   

  	
  75

  
	
   

  	
  §7.9.

  	
  Transactions with Affiliates

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §8.

  	
  FINANCIAL COVENANTS OF THE
  BORROWER

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §8.1.

  	
  Fixed Charge Coverage Ratio

  	
   

  	
  76

  
	
   

  	
  §8.2.

  	
  Adjusted Funded Debt to Total
  Capitalization Ratio

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §9.

  	
  CLOSING CONDITIONS

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §9.1.

  	
  Loan Documents

  	
   

  	
  76

  
	
   

  	
  §9.2.

  	
  Certified Copies of Charter
  Documents

  	
   

  	
  76

  
	
   

  	
  §9.3.

  	
  Corporate Action

  	
   

  	
  76

  
	
   

  	
  §9.4.

  	
  Incumbency Certificate

  	
   

  	
  76

  
	
   

  	
  §9.5.

  	
  Opinion of Counsel

  	
   

  	
  77

  
	
   

  	
  §9.6.

  	
  Payment of Fees

  	
   

  	
  77

  
	
   

  	
  §9.7.

  	
  Existing Credit Agreement

  	
   

  	
  77

  
	
   

  	
  §9.8.

  	
  Compliance Certificate

  	
   

  	
  77

  
	
   

  	
  §9.9.

  	
  UCC Search Results

  	
   

  	
  77

  



 


iv

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §9.10.

  	
  Certificate of Insurance

  	
   

  	
  77

  
	
   

  	
  §9.11.

  	
  Closing Certificate

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §10.

  	
  CONDITIONS TO ALL BORROWINGS

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §10.1.

  	
  Representations True; No Event of
  Default

  	
   

  	
  78

  
	
   

  	
  §10.2.

  	
  No Legal Impediment

  	
   

  	
  78

  
	
   

  	
  §10.3.

  	
  Governmental Regulation

  	
   

  	
  78

  
	
   

  	
  §10.4.

  	
  Alternative Currency

  	
   

  	
  78

  
	
   

  	
  §10.5.

  	
  Borrowing Request

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §11.

  	
  EVENTS OF DEFAULT; ACCELERATION;
  ETC

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §11.1.

  	
  Events of Default and Acceleration

  	
   

  	
  79

  
	
   

  	
  §11.2.

  	
  Remedies Upon Event of Default

  	
   

  	
  82

  
	
   

  	
  §11.3.

  	
  Application of Funds

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §12.

  	
  SETOFF

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §13.

  	
  THE ADMINISTRATIVE AGENT

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §13.1.

  	
  Appointment and Authority

  	
   

  	
  84

  
	
   

  	
  §13.2.

  	
  Rights as a Lender

  	
   

  	
  84

  
	
   

  	
  §13.3.

  	
  Exculpatory Provisions

  	
   

  	
  84

  
	
   

  	
  §13.4.

  	
  Reliance by Administrative Agent

  	
   

  	
  85

  
	
   

  	
  §13.5.

  	
  Delegation of Duties

  	
   

  	
  86

  
	
   

  	
  §13.6.

  	
  Resignation of Administrative
  Agent

  	
   

  	
  86

  
	
   

  	
  §13.7.

  	
  Non-Reliance on Administrative
  Agent and Other Lenders

  	
   

  	
  87

  
	
   

  	
  §13.8.

  	
  No Other Duties, Etc

  	
   

  	
  87

  
	
   

  	
  §13.9.

  	
  Administrative Agent May File
  Proofs of Claim

  	
   

  	
  87

  
	
   

  	
  §13.10.

  	
  Guaranty Matters

  	
   

  	
  88

  
	
   

  	
  §13.11.

  	
  Indemnity

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §14.

  	
  EXPENSES

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §15.

  	
  INDEMNIFICATION

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §16.

  	
  SURVIVAL OF COVENANTS, ETC

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §17.

  	
  SUCCESSORS AND ASSIGNS

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §17.1.

  	
  Successors and Assigns Generally

  	
   

  	
  90

  



 


v

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §17.2.

  	
  Assignments by Lenders

  	
   

  	
  90

  
	
   

  	
  §17.3.

  	
  Register

  	
   

  	
  92

  
	
   

  	
  §17.4.

  	
  Participations

  	
   

  	
  93

  
	
   

  	
  §17.5.

  	
  Limitations on Participant Rights

  	
   

  	
  93

  
	
   

  	
  §17.6.

  	
  Certain Pledges

  	
   

  	
  93

  
	
   

  	
  §17.7.

  	
  Resignation as Issuing Bank After
  Assignment

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §18.

  	
  NOTICES, ETC

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §19.

  	
  GOVERNING LAW

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §20.

  	
  HEADINGS

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §21.

  	
  COUNTERPARTS

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §22.

  	
  ENTIRE AGREEMENT, ETC

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §23.

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §24.

  	
  CONSENTS, AMENDMENTS, WAIVERS, ETC

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §25.

  	
  TREATMENT OF CERTAIN CONFIDENTIAL
  INFORMATION

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  §25.1.

  	
  Confidentiality

  	
   

  	
  98

  
	
   

  	
  §25.2.

  	
  Prior Notification

  	
   

  	
  98

  
	
   

  	
  §25.3.

  	
  Other

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §26.

  	
  SEVERABILITY

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §27.

  	
  JUDGMENT CURRENCY

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §28.

  	
  USA PATRIOT ACT NOTICE

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §29.

  	
  NO ADVISORY OR FIDUCIARY
  RESPONSIBILITY

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §30.

  	
  COLLATERAL

  	
   

  	
  101

  



 


vi

















 


EXHIBITS AND SCHEDULES


 


	
  Exhibit A

  	
   

  	
  Form of Loan Request

  
	
  Exhibit B

  	
   

  	
  Form of Guaranty

  
	
  Exhibit C

  	
   

  	
  Form of Compliance Certificate

  
	
  Exhibit D

  	
   

  	
  Form of Assignment and Acceptance

  
	
  Exhibit E

  	
   

  	
  Form of Swing Line Loan Request

  
	
  Exhibit F

  	
   

  	
  Form of Joinder Agreement

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Lenders

  
	
  Schedule 2

  	
   

  	
  Guarantors

  
	
  Schedule 3

  	
   

  	
  Mandatory Costs

  
	
  Schedule 3.8

  	
   

  	
  Transitional Letters of Credit

  
	
  Schedule 5.3

  	
   

  	
  Title to Properties, Leases

  
	
  Schedule 5.7

  	
   

  	
  Litigation

  
	
  Schedule 5.11

  	
   

  	
  Employee Benefit Plans

  
	
  Schedule 5.13

  	
   

  	
  Environmental Compliance

  
	
  Schedule 5.15(a)

  	
   

  	
  Subsidiaries

  
	
  Schedule 5.15(b)

  	
   

  	
  Joint Ventures and Partnerships

  
	
  Schedule 5.16

  	
   

  	
  Tax Payer Identification Numbers

  
	
  Schedule 7.1

  	
   

  	
  Existing Indebtedness

  
	
  Schedule 7.2

  	
   

  	
  Existing Liens

  
	
  Schedule 7.3

  	
   

  	
  Existing Investments

  
	
  Schedule 18

  	
   

  	
  Notices

  



 


vii
















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT,  dated as of November 4, 2010, is by and among (a) STAPLES, INC. (the “Borrower”),
a Delaware corporation having its principal place of business at 500 Staples
Drive, Framingham, MA 01701, (b) BANK OF AMERICA, N.A.
and the other lending institutions listed on Schedule  1 attached
hereto (collectively, the “Lenders”), (c) BANK OF AMERICA, N.A., as administrative agent (in such
capacity, the “Administrative  Agent”) for the Lenders, as the lender of
Swing Line Loans, and as an Issuing Bank, (d) BARCLAYS
CAPITAL and HSBC BANK USA, NATIONAL ASSOCIATION,  as  co-syndication agents for the Lenders (collectively, the “Co-Syndication  Agents”)
and as Issuing Banks, and (e)  WELLS FARGO BANK, NATIONAL ASSOCIATION and
JPMORGAN CHASE BANK, N.A., as co-documentation agents for the
Lenders (collectively, the “Co-Documentation
Agents”).


 


WHEREAS, the Borrower 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.


 


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


 


§1.          DEFINITIONS AND
RULES OF INTERPRETATION.


 


§1.1.       Definitions.  The following terms
shall have the meanings set forth in this §1 or elsewhere in the provisions of
this Credit Agreement referred to below:


 


Adjustment  Date.  The date which is three (3) Business Days
after each Compliance Certificate is delivered by the Borrower pursuant to
§§6.4(a) and (b) hereof.


 


Administrative  Agent.  As defined in the preamble hereto.


 


Administrative  Agent’s
Head  Office.  The
Administrative Agent’s address and, as appropriate, account as set forth on Schedule
18, or such other address or account as the Administrative Agent may
from time to time notify to the Borrower and the Lenders.


 


Administrative  Questionnaire.  An Administrative Questionnaire in a form
supplied by the Administrative Agent.


 


Administrative  Agent’s
Special  Counsel.  Bingham
McCutchen LLP or such other counsel as may be approved by the Administrative
Agent.


 


Affiliate.  Any Person that would be considered to be an
affiliate of a Person under Rule 144(a) of the Rules and Regulations of the
Securities and Exchange Commission, as in effect on the Closing Date, if such
Person were issuing securities.


 


Agents.  Collectively, (a) the
Administrative Agent, (b) the Co-Syndication Agents and (c) the
Co-Documentation Agents.


 


Agreement  Currency.  See §27 hereof.


 

















 


Alternative  Currency.
Each of the Euro, the Sterling, the Australian Dollar, the Canadian Dollar and
each other currency (other than Dollars) that is approved in accordance with
§1.4 hereof.


 


Alternative  Currency
Equivalent. At any time, with respect to any amount denominated in
Dollars, the equivalent amount thereof in the applicable Alternative Currency
as determined by the Administrative Agent or the applicable Issuing Bank, as
the case may be, at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date) for the purchase of such
Alternative Currency with Dollars.


 


Alternative  Currency
Sublimit. An amount equal to the lesser of the Total Commitment and
$500,000,000.  The Alternative Currency
Sublimit is part of, and not in addition to, the Total Commitments.


 


Applicable  Margin.  Initially, the Applicable Margin shall be the
applicable rate per annum, corresponding to
Level III set forth in the table below; thereafter, the Applicable Margin shall
be in effect for each period commencing on an Adjustment Date through the date
immediately preceding the next Adjustment Date (each a “Rate  Adjustment  Period”) based on a determination of the Fixed
Charge Coverage Ratio and the Senior Debt Rating by Moody’s and S&P.  The Fixed Charge Coverage Ratio shall be
determined as at the end of the fiscal period for which financial statements
and a Compliance Certificate have most recently been delivered to the
Administrative Agent pursuant to §6.4 hereof and the Senior Debt Rating shall
be determined as of the last day of the preceding Rate Adjustment Period.  The Applicable Margin shall be the applicable
rate per annum, corresponding to the higher
of the Levels set forth in the table below (with Level I being the highest
level and Level V being the lowest level) corresponding to the Fixed Charge
Coverage Ratio or the Senior Debt Rating. 
In the event that the Level derived from the Senior Debt Ratings and the
Level derived from the Fixed Charge Coverage Ratio are more than two Levels
apart, the applicable Level for the Applicable Margin shall be the Level that
is two Levels higher than the lower of the two Levels.  In the event that the Senior Debt Ratings
assigned by Moody’s and S&P are not equivalent, the following criteria
shall determine which Level shall be applicable to the Senior Debt Rating: (a)
if the Senior Debt Ratings are one Level apart, the Level applicable to the
Senior Debt Rating shall be the higher of the two Levels and (b) if the Senior
Debt Ratings are more than one Level apart, the Level applicable to the Senior
Debt Rating shall be one Level higher than the lower of the two Levels.


 


For purposes of clarity, the parties hereto
acknowledge that (i) the Applicable Margin with respect to Eurocurrency Rate
Loans shall be the rate per annum set forth in column D in the table below,
(ii) the Applicable Margin with respect to Base Rate Loans shall be the rate
per annum set forth in column E in the table below, (iii) the Facility Fee
shall be the rate per annum set forth in column F in the table below, (iv) the
Letter of Credit Fee with respect to standby Letters of Credit shall be the
rate per annum set forth in column G in the table below and (v) the Letter of
Credit Fee with respect to documentary Letters of Credit shall be the rate per
annum set forth in column H in the table below.


 


2

















 


	
  A

  	
   

  	
  B

  	
   

  	
  C

  	
   

  	
  D

  	
   

  	
  E

  	
   

  	
  F

  	
   

  	
  G

  	
   

  	
  H

  	
   

  
	
  Level

  	
   

  	
  Fixed

  Charge

  Coverage

  Ratio

  	
   

  	
  Senior

  Debt

  Rating

  	
   

  	
  Eurocurrency

  Rate Loans

  	
   

  	
  Base

  Rate

  Loans

  	
   

  	
  Facility

  Fee

  	
   

  	
  Standby

  Letter of

  Credit Fee

  	
   

  	
  Documentary

  Letter of

  Credit Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  >
  4.00:1

  	
   

  	
  S&P: A  Moody’s: A2 or better

  	
   

  	
  0.850

  	
  %

  	
  0.000

  	
  %

  	
  0.150

  	
  %

  	
  0.850

  	
  %

  	
  0.4250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  >
  2.75:1 and  <
  4.00:1

  	
   

  	
  S&P: A-  Moody’s: A3 or better

  	
   

  	
  1.075

  	
  %

  	
  0.075

  	
  %

  	
  0.175

  	
  %

  	
  1.075

  	
  %

  	
  0.5375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  >
  2.50:1 and  <
  2.75:1

  	
   

  	
  S&P: BBB+  Moody’s: Baa1 or better

  	
   

  	
  1.275

  	
  %

  	
  0.275

  	
  %

  	
  0.225 

  	
  %

  	
  1.275

  	
  %

  	
  0.6375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
   

  	
  >
  2.25:1 and  <
  2.50:1

  	
   

  	
  S&P: BBB  Moody’s: Baa2 or better

  	
   

  	
  1.475

  	
  %

  	
  0.475

  	
  %

  	
  0.275

  	
  %

  	
  1.475

  	
  %

  	
  0.7375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V

  	
   

  	
  < 2.25:1

  	
   

  	
  S&P: BBB- or lower  Moody’s: Baa3 or lower

  	
   

  	
  1.650

  	
  %

  	
  0.650

  	
  %

  	
  0.350

  	
  %

  	
  1.650

  	
  %

  	
  0.8250

  	
  %

  



 


Notwithstanding the foregoing, if the Borrower fails
to deliver any Compliance Certificate pursuant to §§6.4(a) or (b) hereof then,
for the period commencing on the date such Compliance Certificate was due
through the date immediately preceding the Adjustment Date that occurs
immediately following the date on which such Compliance Certificate is
delivered, the Applicable Margin shall be the Applicable Margin corresponding to
Level V above.


 


Applicable  Pension
Legislation.  At any time, any
pension or retirement benefits legislation (be it national, federal,
provincial, territorial or otherwise) to the extent then applicable to the
Borrower or any of its Subsidiaries.


 


3

















 


Applicable  Time.
With respect to any borrowings and payments in any Alternative Currency, the
local time in the place of settlement for such Alternative Currency as may be
determined by the Administrative Agent or the applicable Issuing Bank, as the
case may be, to be necessary for timely settlement on the relevant date in
accordance with normal banking procedures in the place of payment.


 


Approved  Fund. 
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.


 


Assignee  Group.  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
Acceptance.  An Assignment and
Acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by §17.2(c)), and accepted by the
Administrative Agent, in substantially the form of Exhibit  D or
any other form approved by the Administrative Agent.


 


Attributable  Indebtedness.  On any date, (a) in respect of any
Capitalized 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.


 


Australian  Dollars. 
Dollars in lawful currency of Australia.


 


Auto-Extension  Letter  of  Credit. See §3.2(c) hereof.


 


Balance  Sheet
Date.  January 30, 2010.


 


Bank  of
America. Bank of America, N.A., a national banking association, in its
individual capacity.


 


Base  Rate.  The highest of (a) the Federal Funds Rate
plus 1/2 of 1%, (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,” and (c) the
Eurocurrency Rate plus 1.00%.  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 prime rate announced by
Bank of America shall take effect at the opening of business on the day specified
in the public announcement of such change.


 


Base  Rate
Loans.  Any Revolving Credit Loans
bearing interest calculated by reference to the Base Rate. All Base Rate Loans
shall be denominated in Dollars.


 


Borrower.  As defined in the preamble hereto.


 


4

















 


Borrower  Materials.  See §6.4 hereof.


 


Business  Day.  Any day on which banking institutions in New
York, New York, are open for the transaction of banking business and:


 


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


 


(b)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in
Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in
Euro to be carried out pursuant to this Credit Agreement in respect of any such
Eurocurrency Rate Loan, means a TARGET Day;


 


(c)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on
which dealings in deposits in the relevant currency are conducted by and
between banks in the London or other applicable offshore interbank market for
such currency; and


 


(d)           if
such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, or any other dealings in
any currency other than Dollars or Euro to be carried out pursuant to this
Credit Agreement in respect of any such Eurocurrency Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country of such
currency.


 


Canadian  Dollars.  Dollars in lawful currency of Canada.


 


Capital  Stock.  With respect to any corporation, partnership,
trust, unincorporated association, joint venture, limited liability company, or
other legal or business entity, any and all shares, interests, participations
or other equivalent (however designated) of capital stock of such entity, any
and all limited or general partnership interests and equivalent ownership
interests in such entity, any and all warrants and options to purchase any of
the foregoing, and any securities convertible into any of the foregoing.


 


Capitalized  Leases.  Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.


 


Cash Collateralize.  To pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Banks and the Lenders, as collateral for Unpaid Reimbursement Obligations plus
the Maximum Drawing Amount, the Obligations in respect of Swing Line Loans, or
obligations of Lenders to fund participations in respect of either 


 


5

















 


thereof (as the context may require), cash or deposit
account balances or, if the applicable Issuing Bank or the Administrative
Agent, as the case may be, shall agree in its sole discretion, other credit
support, in each case pursuant to documentation in form and substance
satisfactory to the Administrative Agent and such Issuing Bank, as applicable. “Cash
Collateral” shall have a meaning correlative to the foregoing and shall include
the proceeds of such cash collateral and other credit support.


 


CERCLA.  The Comprehensive Environmental Response,
Compensation and Liability Act of 1980.


 


Closing  Date.  The first date on which the conditions set
forth in §9 hereof have been satisfied, which shall be no later than November
15, 2010.


 


Code.  The Internal Revenue Code of 1986.


 


Co-Documentation  Agents.  As defined in the preamble hereto.


 


Co-Lead  Arrangers.  Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Barclays Capital, the investment banking division of Barclays
Bank PLC and HSBC Securities (USA) Inc.


 


Commitment.  The agreement of each Lender, subject to the
terms and conditions of this Credit Agreement, to make Revolving Credit Loans
to, and to participate in Swing Line Loans and the issuance, extension and
renewal of Letters of Credit for the account of, the Borrower.


 


Commitment  Amount.  With respect to each Lender, the amount of
such Lender’s Commitment set forth on Schedule  1 attached hereto,
as the same may be increased or reduced from time to time in accordance with
the terms of this Credit Agreement; or if the Total Commitment is terminated
pursuant to the provisions hereof, zero.


 


Commitment  Percentage.  With respect to each Lender, the percentage
set forth on Schedule  1 attached hereto as such Lender’s
percentage of the Total Commitment, subject to adjustment as provided in §4.16.


 


Compliance  Certificate.  See §6.4(a) hereof.


 


Confidential  Information.  All information relating to the Borrower or
any of its Subsidiaries that is labeled by the Borrower or such Subsidiary as
confidential at the time such information is supplied by the Borrower or such
Subsidiary to a Lender, other than information which (a) is public knowledge or
generally available to the public, or (b) is obtained by any of the Lenders,
whether prior to or after disclosure to such Lender by the Borrower or any of
its Subsidiaries, from a source other than the Borrower or any of its
Subsidiaries, provided that such information is not known by such Lender to
have been disclosed by any party in violation of a confidentiality agreement
with the Borrower or any of its Subsidiaries, any other obligation of
nondisclosure with respect to the Borrower or any of its Subsidiaries or any
applicable statutory or regulatory limitation imposed on the disclosure of such
information.


 


6

















 


Consolidated or consolidated.  With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.


 


Consolidated  Adjusted
Funded  Debt.  With respect
to the Borrower and its Subsidiaries, as at any date of determination, on a
consolidated basis, the aggregate of (a) Consolidated Total Funded Debt as of
such date plus (b) (i) Rental Expense for the period of twelve
consecutive months then ended multiplied by (ii) eight (8).


 


Consolidated  EBIT.  For any period, consolidated net income (or
deficit) of the Borrower and its Subsidiaries, after deducting all expenses and
other proper charges other than interest expense, taxes and any noncash
nonrecurring charges, and excluding, without duplication, (a) all extraordinary
and nonrecurring items of (i) income or (ii) cash losses in an aggregate amount
not to exceed $100,000,000 on a cumulative basis from the Closing Date, as
determined in accordance with GAAP and (b) all income or loss from any
corporation, partnership, limited liability company, joint venture or other
entity in which the Borrower or any of its Subsidiaries holds not more than a
fifty percent (50%) ownership interest, as determined in accordance with GAAP; provided
that there shall be further excluded in calculating consolidated net income (or
deficit) for purposes of this definition, without duplication, any noncash (x)
losses attributable to the use of a fair value methodology for recognition and
measurement of impairment of goodwill not identified with impaired assets in
accordance with Accounting Principles Board Opinion No. 142, (y) SFAS 123R
expenses and (z) any net after-tax gains or losses attributable to the early
extinguishment of Indebtedness, including any write-off of debt issuance costs
incurred in connection with the closing of this Credit Agreement.


 


Consolidated  Total
Assets.  All assets of the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.


 


Consolidated  Total
Funded  Debt.  With respect
to the Borrower and its Subsidiaries, as at any date of determination, on a
consolidated basis, the aggregate (without duplication) of (a) all outstanding
Indebtedness of the Borrower and its Subsidiaries relating to or in respect of
(i) the borrowing of money or the obtaining of credit, including the issuance
of notes or bonds and standby letters of credit outstanding but excluding
documentary letters of credit, (ii) the deferred purchase price of assets
(other than trade payables incurred in the ordinary course of business), (iii)
any Synthetic Leases or any Capitalized Leases, and (iv) the Permitted
Securitization Transactions, plus (b) all Indebtedness of the type
referred to in clause (a) of another Person guaranteed by the Borrower or any
of its Subsidiaries.


 


Consolidated  Total
Interest  Expense.  For any
period, the aggregate amount of interest required to be paid or accrued by the
Borrower and its Subsidiaries during such period on all Indebtedness of the
Borrower and its Subsidiaries outstanding during all or any part of such
period, whether such interest was or is required to be reflected as an item of
expense or capitalized, including payments consisting of interest in respect of
Capitalized Leases and Synthetic Leases, and including facility fees,
commitment fees, usage fees, agency fees, balance deficiency fees, and similar
fees or expenses in connection with the borrowing of money, as determined in
accordance with GAAP.


 


7

















 


Conversion  Request.  A notice given by the Borrower to the
Administrative Agent of the Borrower’s election to convert or continue a
Revolving Credit Loan in accordance with §2.9 hereof.


 


Co-Syndication  Agents.  As defined in the preamble hereto.


 


Credit  Agreement.  This Revolving Credit Agreement, including
the Schedules and Exhibits hereto.


 


Default.  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.


 


Defaulting  Lender. 
Subject to §4.16(b), any Lender that, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder,  including in respect of its
Loans or participations in
respect of Letters of Credit or Swing
Line Loans, within three Business Days of the date required to be funded by it hereunder, unless such obligation is the subject of a
good faith dispute, (b) has notified the Borrower, the Administrative
Agent or any Lender that it does not intend to comply with its funding
obligations or has made a public statement to that effect with respect to its
funding obligations hereunder or under other agreements in which it commits to
extend credit, (c) has failed, within three Business Days after request by the
Administrative Agent, to confirm in a manner satisfactory to the Administrative
Agent that it will comply with its funding obligations (provided that such
Lender shall cease to be a Defaulting Lender upon receipt of such confirmation
by the Administrative Agent), or (d) has, or has a direct or indirect parent
company that has, (i) become the
subject of a proceeding under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or a custodian appointed for
it, or (iii) taken any action in furtherance of, or indicated its consent to,
approval of or acquiescence in any such proceeding or appointment; provided
that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a governmental authority.


 


Distribution.  The declaration or payment of any dividend on
or in respect of any shares of any class of Capital Stock of the Borrower,
other than dividends payable solely in shares of common stock of the Borrower;
the purchase, redemption, or other retirement of any shares of any class of
Capital Stock of the Borrower, directly or indirectly through a Subsidiary of
the Borrower or otherwise; the return of capital by the Borrower to its
shareholders as such; or any other distribution on or in respect of any shares
of any class of Capital Stock of the Borrower.


 


Dollars or $.  Dollars in lawful currency of the United
States of America.


 


Dollar  Equivalent.
At any time, (a) with respect to any amount denominated in Dollars, such
amount, and (b) with respect to any amount denominated in any Alternative
Currency, the equivalent amount thereof in Dollars as determined by the
Administrative Agent or the applicable Issuing Bank, as the case may be, at
such time on the basis of the Spot Rate 


 


8

















 


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


 


Domestic  Subsidiary.  Any Subsidiary that is organized under the
laws of the United States of America, any state or territory thereof or the
District of Columbia.


 


Drawdown  Date.  The date on which any Revolving Credit Loan
is made or is to be made, and the date on which any Revolving Credit Loan is
converted or continued in accordance with §2.9 hereof.


 


Eligible  Assignee.  Any of (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 the Issuing Banks, and
(ii) unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed, and in the case
of (ii), it being understood that it shall be reasonable for the Borrower to
withhold such approval if the proposed Person does not have an investment grade
rating).


 


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


 


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


 


Environmental Laws.  Any judgment, decree, order, law, license,
rule or regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act (“RCRA”),
CERCLA, the Superfund Amendments and Reauthorization Act of 1986 (“SARA”),
the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances
Control Act, or any state or local statute, regulation, ordinance, order or
decree relating to health, safety or the environment.


 


Environmental  Notice.  Any notice to the Borrower or any of its
Subsidiaries from any third party including, without limitation: any federal,
state or local governmental authority, (a) that it has been identified by the
United States Environmental Protection Agency as a potentially responsible
party under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part 300 Appendix B; (b) that any Hazardous Substances which it
has generated, transported or disposed of has been found at any site at which a
federal, state or local agency or other third party has conducted or has
ordered that the Borrower or any of its Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law; or (c) that it is or shall be a named party to any claim, action, cause of
action, complaint, or legal or administrative proceeding in connection with the
release of Hazardous Substances.


 


ERISA.  The Employee Retirement Income Security Act
of 1974.


 


ERISA  Affiliate.  Any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
§414(b) or (c) of the Code (and §§414(m) and (o) of the Code for purposes of
provisions relating to §412 of the Code).


 


9

















 


ERISA  Event.  Any of: (a) a Reportable Event with respect
to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate
from a Pension Plan subject to §4063 of ERISA during a plan year in which such
entity was a “substantial employer” as defined in §4001(a)(2) of ERISA or a
cessation of operations that is treated as such a withdrawal under §4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under §4041 or §4041A of
ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension
Plan; (f) any event or condition which constitutes grounds under §4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (g) the determination that any Pension Plan is considered an
at-risk plan or a plan in endangered or critical status within the meaning of
§§430, 431 and 432 of the Code or §§303, 304 and 305 of ERISA; or (h) the imposition
of any liability under Title IV of ERISA, other than for PBGC premiums due but
not delinquent under §4007 of ERISA, upon the Borrower or any ERISA Affiliate.


 


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


 


Eurocurrency  Rate.
(a) For any Interest Period with respect to a Eurocurrency Rate Loan, the rate
per annum equal to the British Bankers Association LIBOR Rate (“BBA  LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two (2) Business Days prior to
the commencement of such Interest Period, for deposits in the relevant currency
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period.  If such rate is
not available at such time for any reason, then the “Eurocurrency Rate” for
such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in the relevant currency
for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or
converted by 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 such currency at their request at approximately 11:00 a.m. (London
time) two (2) Business Days prior to the commencement of such Interest Period.


 


(b)           For any interest calculation
with respect to a Base Rate Loan on any date, the rate per annum equal to (i)
BBA LIBOR, at approximately 11:00 a.m., London time determined two Business
Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such
published rate is not available at such time for any reason, the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the date of determination in Same Day Funds in the
approximate amount of the Base Rate Loan being made or maintained and with a
term equal to one month would be offered by Bank of America’s London Branch to
major banks in the London interbank Eurodollar market at their request at the
date and time of determination.


 


10
















 


Eurocurrency  Rate
Loans.  Any Revolving Credit Loans
bearing interest calculated by reference to the Eurocurrency Rate. Eurocurrency
Rate Loans may be denominated in Dollars or in an Alternative Currency.  All Loans denominated in an Alternative
Currency must be Eurocurrency Rate Loans.


 


Event  of
Default.  See §11.1 hereof.


 


Event  of
Termination.  Any “Event of
Termination” or similar event under and as defined in any of the documents
relating to any Securitization Transaction.


 


Excluded  Taxes.  With respect to the Administrative Agent, any
Lender, the Issuing Banks or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable Lending Office is located, or
by any jurisdiction as a result of a present or former connection between such
recipient and the jurisdiction imposing such tax (or any political subdivision
thereof), other than any such connection arising solely from such recipient
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document, (b) any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which the Borrower is located, (c) any backup
withholding tax that is required by the Code to be withheld from amounts
payable to a Lender that has failed to comply with clause (A) of
§4.3.3(e)(ii), and (d) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under §4.12), any United States  withholding tax that (i) is required
to be imposed on amounts payable to such Foreign Lender pursuant to the laws in
force at the time such Foreign Lender becomes a party hereto (or designates a
new Lending Office), (ii) is attributable to such Foreign Lender’s failure
or inability (other than as a result of a change in law) to comply with clause (B) of
§4.3.3(e)(ii), 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 Borrower with respect to
such withholding tax pursuant to §4.3.3(a)(ii) or (c), or (iii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a change in law, except for a change in law relating to the
implementation of FATCA) to comply with clause (C) of §4.3.3(e)(ii) and
is imposed with respect to the requirements of FATCA.


 


Existing  Credit
Agreement.  The Amended and
Restated Revolving Credit Agreement dated as of October 13, 2006, as
amended, by and among the Borrower, the lending institutions party thereto and
Bank of America as administrative agent for such lending institutions.


 


Existing  Letters
of  Credit.  See §3.8
hereof.


 


Facility  Fee.  See §4.2.1 hereof.


 


FASB  ASC.  The Accounting Standards Codification of the
Financial Accounting Standards Board.


 


11

















 


FATCA.  Sections 1471 through 1474 of the Code and
any regulations (whether temporary or proposed) that are issued thereunder or
official governmental interpretations thereof.


 


Fee  Letter.  That certain fee letter dated as of October 8,
2010 by and among the Administrative Agent, Banc of America Securities LLC (now
known as Merrill Lynch, Pierce, Fenner & Smith Incorporated) and the
Borrower.


 


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


 


Financial  Affiliate.  A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary is engaging in any of the activities
permitted by §4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
§1843).


 


Fixed  Charge
Coverage  Ratio.  See §8.1
hereof.


 


Foreign  Lender.  Any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is resident for tax
purposes (including such a Lender when acting in the capacity of an Issuing
Bank) or any other Lender that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code.  For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.


 


Foreign  Plan.  See §5.11(e) hereof.


 


Fronting  Exposure.  At any time there is a Defaulting Lender, (a) with
respect to an Issuing Bank, such Defaulting Lender’s Commitment Percentage of
the outstanding Unpaid Reimbursement Obligations and the Maximum Drawing Amount
other than Unpaid Reimbursement Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect
to the Administrative Agent, such Defaulting Lender’s Commitment Percentage of
Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof.


 


Fund.  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.


 


12

















 


GAAP  or
generally  accepted  accounting  principles.  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.


 


Guaranties.  The Guaranty by each Guarantor in favor of
the Administrative Agent for the benefit of the Lenders and the Administrative
Agent, dated as of the date hereof, and each additional guaranty executed by a
Subsidiary of the Borrower acquired or formed after the date hereof.


 


Guarantors.  Those Subsidiaries of the Borrower listed on Schedule
2 attached hereto, as such schedule may be modified from time to time in
accordance with §4.14 hereof.


 


Hazardous  Substances.  Any hazardous waste, as defined by 42 U.S.C.
§6903(5), any hazardous substances as defined by 42 U.S.C. §9601(14), any
pollutant or contaminant as defined by 42 U.S.C. §9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws.


 


Honor  Date.
See §3.3(a) hereof.


 


Indebtedness.  All obligations, contingent and otherwise,
that in accordance with GAAP should be classified upon the obligor’s balance
sheet as liabilities, or to which reference should be made by footnotes
thereto, including in any event and whether or not so classified: (a) all
debt and similar monetary obligations, whether direct or indirect; (b) all
liabilities secured by any mortgage, pledge, security interest, lien, charge or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (c) net
obligations under any Swap Contract; (d) all guarantees, endorsements and
other contingent obligations whether direct or indirect in respect of
indebtedness of others, including any obligation to supply funds to or in any
manner to invest in, directly or indirectly, the debtor, to purchase
indebtedness, or to assure the owner of indebtedness against loss, through an
agreement to purchase goods, supplies, or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner or otherwise,
and the obligations to reimburse the issuer in respect of any letters of
credit; and (e) every obligation of such Person under any Synthetic Lease.


 


The amount of any net obligation under any Swap
Contract on any date shall be deemed to be the Swap Termination Value thereof
as of such date.  The amount of any
Capitalized Lease or obligation under any Synthetic Lease as of any date shall
be deemed to be the amount of Attributable Indebtedness in respect thereof as
of such date.


 


Indemnified  Taxes.  Taxes other than Excluded Taxes and Other
Taxes.


 


Interest  Payment
Date.  (a) As to any Base
Rate Loan, the last day of the calendar quarter which includes the Drawdown
Date thereof; (b) as to any Eurocurrency Rate Loan in respect of which the
Interest Period is (i) 3 months or less, the last day of such Interest
Period and (ii) more than 3 months, the date that is 3 months from the
first day of such Interest Period, the last day of 


 


13

















 


each 3 month period thereafter, and, in addition, the
last day of such Interest Period; and (c) as to any Swing Line Loan, the
day that such Swing Line Loan is required to be repaid.


 


Interest  Period.  With respect to each Loan (a) initially,
the period commencing on the Drawdown Date of such Loan and ending on the last
day of one of the periods set forth below, as selected by the Borrower in a
Loan Request (i) for any Base Rate Loan, the last day of the calendar
quarter, and (ii) for any Eurocurrency Rate Loan, 1, 2, 3 or 6 months; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Loan and ending on the last day of
one of the periods set forth above, as selected by the Borrower in a Conversion
Request; provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:


 


(a)           if
any Interest Period with respect to a Eurocurrency Rate Loan would otherwise
end on a day that is not a Business Day, that Interest Period shall be extended
to the next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business Day;


 


(b)           if
any Interest Period with respect to a Base Rate Loan would end on a day that is
not a Business Day, that Interest Period shall end on the next succeeding
Business Day;


 


(c)           if
the Borrower shall fail to give notice as provided in §2.9 hereof, the Borrower
shall be deemed to have requested a conversion of the affected Eurocurrency
Rate Loan to a Base Rate Loan and the continuance of all Base Rate Loans as
Base Rate Loans on the last day of the then current Interest Period with
respect thereto;


 


(d)           any
Interest Period relating to any 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 a calendar month; and


 


(e)           any
Interest Period relating to any Revolving Credit Loan that would otherwise
extend beyond the Maturity Date shall end on the Maturity Date.


 


Investments.  All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock or
Indebtedness of, or for loans, advances, capital contributions or transfers of property
to, or in respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. 
In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a
guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (b) there shall be included
as an Investment all interest accrued with respect to Indebtedness constituting
an Investment unless and until such interest is paid; (c) there shall be
deducted in respect of each such Investment any amount received as a return of
capital (but only by repurchase, redemption, retirement, repayment, liquidating
dividend or liquidating distribution); (d) there shall not be deducted in
respect of any Investment any amounts received as earnings on such Investment,
whether as dividends, interest or otherwise, except that accrued interest
included as provided in the foregoing clause (b) may be deducted 


 


14

















 


when paid; and (e) there shall not be deducted
from the aggregate amount of Investments any decrease in the value thereof.


 


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


 


Issuing  Bank.  Bank of America (or any subsidiary or
Affiliate of Bank of America designated by Bank of America), Barclays Bank PLC
(solely with respect to standby Letters of Credit) and HSBC Bank USA, National
Association or such other Lenders as may be selected by the Borrower, with the
consent of the Administrative Agent (such consent not to be unreasonably withheld)
and such other Lender, to issue Letters of Credit hereunder.  Nothing herein shall be deemed to restrict
the right of an Issuing Bank to issue letters of credit outside of this Credit
Agreement.


 


Joinder  Agreements.  Joinder agreements in substantially the form
of Exhibit F hereto pursuant to which Subsidiaries of the Borrower
become parties to and agree to be bound by the provisions of the Guaranty as a
Guarantor.


 


Judgment  Currency.  See §27 hereof.


 


Lender  Affiliate.  With respect to any Lender, (a) an
Affiliate of such Lender or (b) any Approved Fund.


 


Lenders.  As defined in the preamble hereto, which term
shall include any other Person who becomes an assignee of any rights and
obligations of a Lender pursuant to §17 hereof. Unless the context otherwise
requires, the term “Lenders” includes each Issuing Bank and the Administrative
Agent in its capacity as lender of the Swing Line Loans.


 


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


 


Letter(s) of  Credit.  Standby and documentary letters of credit
issued by any Issuing Bank from time to time for the account of the Borrower
hereunder. Letters of Credit may be issued in Dollars or in an Alternative
Currency.


 


Letter  of
Credit  Application.  An
application and agreement for the issuance or amendment of a Letter of Credit
in the form from time to time in use by the applicable Issuing Bank.


 


Letter  of
Credit  Fee.  See §3.9
hereof.


 


Letter  of
Credit  Sublimit.  The
lesser of $500,000,000 and the Total Commitment.


 


Loan  Documents.  This Credit Agreement, the Notes, the
Guaranties, the Joinder Agreements, the Fee Letter and any other documents
delivered pursuant to this Credit Agreement.


 


15

















 


Loan  Request.  See §2.2 hereof.


 


Loans.  Revolving Credit Loans made or to be made by
the Lenders to the Borrower pursuant to §2 hereof, including Swing Line Loans.


 


Mandatory  Cost.
With respect to any period, the percentage rate per annum determined in
accordance with Schedule  3.


 


Margin  Regulations.  See §5.12 hereof.


 


Material  Securitization
Transaction.  Any Securitization
Transaction in an amount in excess of $75,000,000.


 


Material  Subsidiary.  As of any date of determination, (a) any
Guarantor and (b) any other Subsidiary with respect to which the aggregate
book value of the assets of such Subsidiary equals or exceeds five percent (5%)
of the Consolidated Total Assets as of such date.  A Subsidiary that is a Material Subsidiary at
any date pursuant to clause (b) of this definition shall continue to be or
be deemed to be a Material Subsidiary at all times thereafter, without regard
to the results of any future re-determination pursuant to this definition.


 


Maturity  Date.  November 4, 2014.


 


Maximum  Drawing
Amount.  On the date as of which
the maximum drawing amount is to be determined, the Dollar Equivalent of the
aggregate maximum amount which the beneficiaries may draw from time to time
under Letters of Credit issued for the account of the Borrower pursuant to §3.1
hereof. For all purposes of this Credit Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the
ISP, the Maximum Drawing Amount of such Letter of Credit shall be the aggregate
maximum amount so remaining available to be drawn.


 


Measurement  Period.  See §8.1 hereof.


 


Moody’s.  Moody’s Investors Service, Inc.


 


Multiemployer  Plan.  Any employee benefit plan of the type
described in §4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions.


 


Multiple  Employer
Plan.  A Plan defined in §4064 of
ERISA which has two or more contributing sponsors (including the Borrower or
any ERISA Affiliate) at least two of whom are not under common control.


 


Non-Extension  Notice
Date. See §3.2(c) hereof.


 


Notes.  Notes issued pursuant to §2.11.


 


16

















 


Obligations.  All indebtedness, obligations and liabilities
of any of the Borrower and its Subsidiaries to any of the Lenders and the
Administrative Agent, individually or collectively, existing on the date of
this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Credit Agreement or any of the other
Loan Documents or in respect of any of the Loans made or Reimbursement
Obligations incurred, or any of the Letter of Credit Applications, Letters of
Credit or other instruments at any time evidencing any thereof.


 


Obligor  Group.  Collectively, the Borrower and the Guarantors
(including any Subsidiary of the Borrower which as of any date of determination
has become a Guarantor pursuant to the provisions of this Credit Agreement).


 


Other  Taxes.  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
Credit Agreement or any other Loan Document, except for any Excluded Taxes.


 


Outstanding or outstanding.  With respect to the Loans, the Dollar
Equivalent of the aggregate unpaid principal thereof as of any date of determination.


 


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


 


Participant.  See §17.4 hereof.


 


Participating  Member
State. Each state so described in any EMU Legislation.


 


Pension  Funding
Rules.  The rules of the Code
and ERISA regarding minimum required contributions (including any installment
payment thereof) to Pension Plans and set forth in, with respect to plan years
ending prior to the effective date of the Pension Act, §412 of the Code and
§302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
§§412, 430, 431, 432 and 436 of the Code and §§302, 303, 304 and 305 of ERISA.


 


Pension  Plan.  Any employee pension benefit plan (including
a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is
contributed to by the Borrower and any ERISA Affiliate and is either covered by
Title IV of ERISA or is subject to the minimum funding standards under §412 of
the Code.


 


Permitted  Liens.  Liens, security interests and other
encumbrances permitted under §7.2 hereof.


 


17

















 


Permitted  Securitization
Transaction.  Any Securitization
Transaction permitted by §7.1(s) hereof.


 


Person.  Any individual, corporation, limited
liability company, partnership, limited liability partnership, trust,
unincorporated association, business, or other legal entity, and any government
or any governmental agency or political subdivision thereof.


 


Plan.  Any employee benefit plan within the meaning
of §3(3) of ERISA (including a Pension Plan), maintained for employees of
the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or
any ERISA Affiliate is required to contribute on behalf of any of its employees
and not excluded under §4 of ERISA.


 


Platform.  See §6.4 hereof.


 


Rate  Adjustment
Period.  See definition of
Applicable Margin.


 


Real  Estate.  All real property at any time owned or leased
(as lessee or sublessee) by the Borrower or any of its Subsidiaries.


 


Reimbursement  Obligation.  The Borrower’s obligation to reimburse the
applicable Issuing Bank on account of any drawing under any Letter of Credit.


 


Rental  Expense.  All obligations of the Borrower or any of its
Subsidiaries under any rental agreements or leases of real property relating to
retail stores, other than obligations in respect of Capitalized Leases and
Synthetic Leases.


 


Related  Parties  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.


 


Replacement  Lender.  See §4.12 hereof.


 


Reportable  Event.  Any of the events set forth in §4043(c) of
ERISA, other than events for which the 30 day notice period has been waived
under regulations in effect on the Closing Date.


 


Required  Lenders.  As of any date, the Lenders holding more than
fifty percent (50%) of the sum of the outstanding principal amount of the
Revolving Credit Loans on such date plus the aggregate amount of risk
participation with respect to the Maximum Drawing Amount plus the Unpaid
Reimbursement Obligations on such date and the participation with respect to the
outstanding principal amount of Swing Line Loans on such date (collectively,
the “Total Outstandings”); and if no such principal and/or participation
is outstanding, the Lenders whose aggregate Commitment Amounts constitute more
than fifty percent (50%) of the Total Commitment; provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


Revaluation  Date.  With respect to (a) any Revolving Credit
Loan, each of the following: (i) each date of a borrowing of a
Eurocurrency Rate Loan denominated in an Alternative 


 


18

















 


Currency, (ii) each date of a continuation of a
Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to
§2.9.2 hereof, and (iii) such additional dates as the Administrative Agent
shall determine or the Required Lenders or the Borrower shall require and (b) any
Letter of Credit, each of the following: (i) each date of issuance of a
Letter of Credit denominated in an Alternative Currency, (ii) each date of
an amendment of any such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each
date of any payment by the applicable Issuing Bank under any Letter of Credit
denominated in an Alternative Currency and (iv) such additional dates as
the Administrative Agent or the applicable Issuing Bank shall determine or the
Required Lenders or the Borrower shall require.


 


Revolver  Period.  The period beginning on the Closing Date to
and including the day immediately preceding the Maturity Date.


 


Revolving  Credit
Loans.  One or more revolving
credit loans funded by the Lenders in accordance with their respective
Commitment Percentages.


 


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


 


S&P.  Standard & Poor’s Ratings Group, a
division of McGraw-Hill, Inc.


 


Securitization  Transaction.  Any receivables securitization transaction or
other financing of any special purpose receivables Subsidiary of the Borrower
entered into and/or guaranteed by the Borrower and/or any of its Subsidiaries
in effect from time to time.


 


Senior  Debt
Rating.  The rating issued by
S&P or Moody’s with respect to unsecured Indebtedness of the Borrower not
maturing within twelve months, issued without third-party credit enhancement,
and not subordinated by its term in right of payment to other Indebtedness of
the Borrower.  In the event that no such
ratings are available on such unsecured Indebtedness of the Borrower, the
Senior Debt Rating shall be the rating implied, in the reasonable discretion of
the Administrative Agent, to such unsecured Indebtedness by reference to such
other Indebtedness of the Borrower as shall be so rated.


 


Senior  Debt
Rating  Threshold.  “BBB-”
assigned by S&P and “Baa3” assigned by Moody’s, in each case, with a stable
outlook.


 


SFAS  123R.  Financial Accounting Standards Board
Statement No. 123 (revised 2004), Share Based Payment,
as amended or revised from time to time.


 


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


 


19

















 


Spot  Rate.
For a currency means the rate determined by the Administrative Agent or the
applicable Issuing Bank, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of
such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m. (New York time) on the date two
(2) Business Days prior to the date as of which the foreign exchange
computation is made; provided that the Administrative Agent or the
applicable Issuing Bank may obtain such spot rate from another financial
institution designated by the Administrative Agent or such Issuing Bank if the
Person acting in such capacity does not have as of the date of determination a
spot buying rate for any such currency; and provided  further that
such Issuing Bank may use such spot rate quoted on the date as of which the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.


 


Sterling and
£. The lawful currency of the United Kingdom.


 


Stockholders’  Equity.  As at any date of determination, the sum of (a) the
capital accounts including common stock and preferred stock, but excluding
treasury stock of the Borrower plus (b) the earned surplus and capital
surplus of the Borrower (excluding adjustments to translate foreign assets and
liabilities for changes in foreign exchange rates made in accordance with
Financial Accounting Standards Board Statement No. 52), as determined in
accordance with GAAP.


 


Subordinated  Debt.  Unsecured Indebtedness of the Borrower or any
of its Subsidiaries that is expressly subordinated and made junior to the
payment and performance of the Obligations, and evidenced as such by a written
instrument containing subordination provisions in form and substance approved
by the Required Lenders in writing.


 


Subsidiary.  Any corporation, association, trust, or other
business entity of which the designated parent shall at any time own directly
or indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock and the accounts of which are
consolidated with such designated parent in accordance with GAAP.


 


Substituted  Lender.  See §4.12 hereof.


 


Swap  Contract.
Any and all (a) 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) 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.


 


20
















 


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


 


Swing  Line
Loan  Maturity  Date. 
With respect to any Swing Line Loan, the date specified by the Borrower
in the Swing Line Loan Request relating thereto as the maturity date of such
Swing Line Loan, which in no event shall be later than the earlier to occur of (a) ten
(10) days after the Drawdown Date of such Swing Line Loan and (b) the
Maturity Date.


 


Swing  Line
Loan  Request.  See §2.10.1
hereof.


 


Swing  Line
Loans.  See §2.10.1 hereof.


 


Swing  Line
Sublimit.  $100,000,000.


 


Synthetic  Lease.  Any lease of goods or other property, whether
real or personal, which is treated as an operating lease under GAAP and as a
loan or financing for U.S. income tax purposes.


 


TARGET  Day.
Any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) payment system (or, if such payment system ceases to
be operative, such other payment system (if any) determined by the
Administrative Agent to be a suitable replacement) is open for the settlement
of payments in Euro.


 


Taxes.  All present or future taxes, levies, imposts,
duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges in the nature of a tax imposed by any governmental
authority, including any interest, additions to tax or penalties applicable
thereto.


 


Total  Commitment.  The sum of the Commitment Amounts of the
Lenders (including any Defaulting Lender), as in effect from time to time.  The Total Commitment as of the Closing Date
is $1,000,000,000.


 


Type.  As to any Revolving Credit Loan, its nature
as a Base Rate Loan or a Eurocurrency Rate Loan.


 


Unpaid  Reimbursement
Obligation.  The Dollar Equivalent
of any Reimbursement Obligation for which the Borrower has not reimbursed the
applicable Issuing Bank.


 


Unreimbursed  Amount.
See §3.3(a) hereof.


 


Voting  Stock.  Stock or similar interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, to vote for the election of a majority of 


 


21

















 


the directors (or persons performing similar
functions) of the corporation, association, trust or other business entity
involved, whether or not the right so to vote exists by reason of the happening
of a contingency.


 


§1.2.       Rules of
Interpretation


 


(a)           A reference to any document or
agreement shall include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Credit Agreement.


 


(b)           The singular includes the plural and
the plural includes the singular.


 


(c)           A reference to any law includes any
amendment or modification to such law.


 


(d)           A reference to any Person includes
its permitted successors and permitted assigns.


 


(e)           The words “include”, “includes” and “including” are not limiting.


 


(f)            All terms not specifically defined
herein or by GAAP, which terms are defined in the Uniform Commercial Code as in
effect in the Commonwealth of Massachusetts, have the meanings assigned to them
therein, with the term “instrument” being that defined under Article 9 of
the Uniform Commercial Code.


 


(g)           Reference to a particular “§” refers
to that section of this Credit Agreement unless otherwise indicated.


 


(h)           The words “herein”, “hereof”, “hereunder” and words of like import shall
refer to this Credit Agreement as a whole and not to any particular section or
subdivision of this Credit Agreement.


 


(i)            Unless otherwise expressly
indicated, 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.”


 


(j)            This Credit Agreement and the other
Loan Documents may use several different limitations, tests or measurements to
regulate the same or similar matters. 
All such limitations, tests and measurements are, however, additive and
are to be performed in accordance with the terms thereof.


 


(k)           This Credit Agreement and the other
Loan Documents are the result of negotiation among, and have been reviewed by
counsel to, among others, the Administrative Agent and the Borrower and are the
product of discussions and negotiations among all parties.  Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the Administrative
Agent or any of the Lenders merely on account of the Administrative Agent’s or
any Lender’s involvement in the preparation of such documents.


 


22

















 


§1.3.       Exchange Rates;
Currency Equivalents.


 


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


 


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


 


§1.4.       Additional Alternative
Currencies.


 


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


 


(b)           Any such request shall be made to the
Administrative Agent not later than 11:00 a.m. (New York time), twenty
(20) Business Days prior to the date of the desired Loan or issuance of Letter
of Credit (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the
applicable Issuing Bank, in its or their sole discretion). In the case of any
such request pertaining to Eurocurrency Rate Loans, the Administrative Agent
shall promptly notify each Lender thereof; and in the case of any such request
pertaining to Letters of Credit, the Administrative Agent shall promptly notify
the applicable Issuing Bank thereof. 
Each Lender (in the case of a request pertaining to Eurocurrency Rate
Loans) or the applicable Issuing Bank (in the case of a request pertaining to
Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m.
(New York time), ten (10) Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of Eurocurrency Rate
Loans or the issuance of Letters of Credit, as the case may be, in such
requested currency.


 


23

















 


(c)           Any failure by a Lender or the
applicable Issuing Bank, as the case may be, to respond to such request within
the time period specified in the preceding sentence shall be deemed to be a
refusal by such Lender or such Issuing Bank, as the case may be, to permit
Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such
requested currency.  If the
Administrative Agent and all the Lenders consent to making Eurocurrency Rate
Loans in such requested currency, the Administrative Agent shall so notify the Borrower
and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Eurocurrency Rate Loans; and
if the Administrative Agent and the applicable Issuing Bank consent to the
issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify the Borrower and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder for purposes of any
Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this §1.4, the
Administrative Agent shall promptly so notify the Borrower.


 


§1.5.       Change of Currency.


 


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


 


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


 


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


 


§1.6.       Letter of Credit
Amounts.  Unless otherwise specified herein, the
Maximum Drawing Amount of a Letter of Credit at any time shall be deemed to be
the Dollar Equivalent of the stated amount of such Letter of Credit in effect
at such time; provided, however, that with respect to any Letter
of Credit that, by its terms or the terms of any document related thereto,
provides for one or more automatic increases in the stated amount thereof, the
Maximum Drawing Amount of such Letter of Credit shall be deemed to be the
Dollar Equivalent of the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time.


 


24

















 


§1.7.       Accounting Terms.  Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
consolidated financial statements of the Borrower delivered to the Lenders; provided
that, if the Borrower shall notify the Administrative Agent that it wishes to
amend the definitions of Consolidated Adjusted Funded Debt, Consolidated EBIT,
Consolidated Total Funded Debt, Consolidated Total Interest Expense or
Indebtedness or any provision in §8 (including the components of the
calculations in these definitions and provisions and the thresholds required by
such provisions) to eliminate the effect of any change in GAAP on the operation
of any such definition or provision (or if the Administrative Agent notifies
the Borrower that the Required Lenders wish to amend any such definition or
provision for such purpose), then the Borrower’s compliance with such
provisions shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice
is withdrawn or such definition or provision is amended in a manner
satisfactory to the Borrower and the Required Lenders and, provided  further
that (and notwithstanding anything to the contrary contained herein), unless
the Borrower gives notice to the Administrative Agent that the Borrower has
elected to proceed in accordance with the immediately prior proviso, the
definitions of Consolidated Adjusted Funded Debt, Consolidated EBIT,
Consolidated Total Funded Debt, Consolidated Interest Expense and Indebtedness
and all provisions of §8, to the extent in each case that they relate to the
accounting for leases, shall be calculated and the Borrower’s compliance with
such provisions shall be determined on the basis of GAAP in effect as of the
date of this Credit Agreement, without giving effect to any subsequent
change.  Notwithstanding the foregoing,
for purposes of determining compliance with any covenant (including the
computation of any financial covenant) contained herein, Indebtedness of
the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the
outstanding principal amount thereof, and the effects of FASB ASC 825 on
financial liabilities shall be disregarded.


 


§2.          THE REVOLVING
CREDIT FACILITY.


 


§2.1.       Commitment to Lend
Revolving Credit Loans.  Subject to the terms and conditions set forth
in this Credit Agreement, each of the Lenders severally agrees from time to
time during the Revolver Period to make Revolving Credit Loans to the Borrower
in Dollars or in one or more Alternative Currencies and in such amounts as are
requested by the Borrower; provided, that the sum of the aggregate
principal amount of Revolving Credit Loans made by each Lender (after giving
effect to all amounts requested) shall not at any time exceed such Lender’s
Commitment Amount; and provided, further, that (a) at no
time shall the sum of, without duplication, (i) the Dollar Equivalent of
the outstanding Revolving Credit Loans, plus (ii) the outstanding Swing
Line Loans, plus (iii) the Maximum Drawing Amount, plus (iv) all
Unpaid Reimbursement Obligations exceed the Total Commitment, (b) at no
time shall the sum of, without duplication, (i) the Dollar Equivalent of
the aggregate outstanding Loans denominated in Alternative Currencies plus (ii) the
Maximum Drawing Amount of all Letters of Credit denominated in Alternative
Currencies plus (iii) all Unpaid Reimbursement Obligations with respect to
Letters of Credit denominated in Alternative Currencies exceed the Alternative
Currency Sublimit and (c) subject to §2.4.1, at all times the Dollar
Equivalent of the outstanding aggregate principal amount of all Revolving
Credit Loans made by each Lender shall equal such Lender’s Commitment
Percentage of the outstanding Revolving Credit Loans 


 


25

















 


made
by all Lenders pursuant to the terms of this Credit Agreement.  Subject to the terms and conditions set forth
in this Credit Agreement, the Borrower may borrow, repay and reborrow Revolving
Credit Loans from time to time during the Revolver Period upon notice by the
Borrower to the Administrative Agent given in accordance with §2.2 hereof.  Each request for a Revolving Credit Loan
hereunder shall constitute a representation and warranty by the Borrower that
the conditions set forth in §§9 and 10 hereof, in the case of the initial
Revolving Credit Loans to be made on the Closing Date, and §10 hereof, in the
case of all other Revolving Credit Loans, shall have been satisfied on the date
of such request.


 


§2.2.       Requests for
Revolving Credit Loans.  The Borrower shall give to the Administrative
Agent written notice in the form of Exhibit A attached hereto (or
telephonic notice confirmed in a writing in the form of Exhibit A
attached hereto) of each Revolving Credit Loan requested hereunder (a “Loan
Request”) not later than (a) 12:00 noon (New York time) on the
proposed Drawdown Date of any Base Rate Loan, (b) 12:00 noon (New York
time) three (3) Business Days prior to the proposed Drawdown Date of any
Eurocurrency Rate Loan that is denominated in Dollars and (c) 12:00 noon
(New York time) four (4) Business Days (or five (5) Business Days in
the case of Loans denominated in Australian Dollars or a Special Notice
Currency) prior to the proposed Drawdown Date of any Eurocurrency Rate Loan that
is denominated in Alternative Currencies. 
Each such notice shall specify (i) the principal amount of the
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Revolving Credit Loan, (iii) the Interest Period for such Revolving Credit
Loan, (iv) the Type of such Revolving Credit Loan and (v) the
currency of such Revolving Credit Loan. If the Borrower fails to specify a
currency in a Loan Request, then the Loan so requested shall be made in
Dollars.  Promptly upon receipt of any
such notice, the Administrative Agent shall notify each of the Lenders thereof.
Each Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loan requested from the
Lenders on the proposed Drawdown Date. 
Each Loan Request shall be (A) in a minimum aggregate amount of
$1,000,000 or any whole multiple of $1,000,000 in excess thereof with respect
to Base Rate Loans and (B) in a minimum aggregate amount of $5,000,000 or
an integral multiple of $l,000,000 with respect to Eurocurrency Rate Loans.


 


§2.3.       Intentionally
Omitted.


 


§2.4.       Funds for Revolving
Credit Loans.


 


§2.4.1.    Funding Procedures.  Each of the
relevant Lenders will make available to the Administrative Agent, at the
Administrative Agent’s Head Office, in Same Day Funds, the amount of such
Lender’s Commitment Percentage of the amount of the requested Revolving Credit
Loans not later than 1:30 p.m. (New York time) on the proposed Drawdown
Date of any Revolving Credit Loans denominated in Dollars and not later than
the Applicable Time specified by the Administrative Agent in the case of any
Revolving Credit Loans denominated in an Alternative Currency.  Upon receipt from each Lender of such amount,
and upon receipt of the documents required by §§9 and 10 hereof and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Administrative Agent will make available to the Borrower the
aggregate amount of such Revolving Credit Loans made available to the Administrative
Agent by the relevant Lenders.  The
failure or refusal of any Lender to make available to the Administrative Agent
its Commitment Percentage of the requested Revolving Credit Loans on 


 


26

















 


any
Drawdown Date shall not excuse any other Lender from making available to the
Administrative Agent the amount of such other Lender’s Commitment Percentage of
any requested Revolving Credit Loans.


 


§2.4.2.    Advances by
Administrative Agent.


 


(a)           The Administrative Agent may, unless
notified to the contrary by any Lender prior to a Drawdown Date, assume that
such Lender has made available to the Administrative Agent on such Drawdown
Date the amount of such Lender’s Commitment Percentage of the Revolving Credit
Loans to be made on such Drawdown Date, and the Administrative Agent may (but
it shall not be required to), in reliance upon such assumption, make available
to the Borrower a corresponding amount. 
If any Lender makes available to the Administrative Agent such amount on
a date after such Drawdown Date, such Lender shall pay to the Administrative
Agent on demand an amount equal to the product of (a) the average computed
for the period referred to in clause (c) below, of the Overnight Rate for
each day included in such period, times (b) the amount of such Lender’s
Commitment Percentage of such Revolving Credit Loans, times (c) a
fraction, the numerator of which is the number of days that elapse from and
including such Drawdown Date to the date on which the amount of such Lender’s
Revolving Credit Loans shall become immediately available to the Administrative
Agent, and the denominator of which is 360. 
A statement of the Administrative Agent submitted to such Lender with
respect to any amounts owing under this §2.4.2 shall be prima facie evidence of
the amount due and owing to the Administrative Agent by such Lender.  If the amount of such Lender’s Revolving
Credit Loans is not made available to the Administrative Agent by such Lender
within three (3) Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from the Borrower
on demand, with interest thereon at the rate per annum applicable to the
Revolving Credit Loans made on such Drawdown Date and the Borrower may take the
actions permitted under §4.12 hereof to replace such Lender.  Any payment by the Borrower to the
Administrative Agent of any Revolving Credit Loans pursuant to this §2.4.2
shall be deemed to be a payment to the Administrative Agent in respect of the advances
made by the Administrative Agent in respect of the Revolving Credit Loans that
were to be made by the Lender that failed to make such Revolving Credit Loans.


 


(b)           Unless the Borrower has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has timely made
such payment and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to such Lender.  If and to the extent that such payment was
not in fact made to the Administrative Agent by the Borrower in Same Day Funds,
then each Lender shall forthwith on demand repay to the Administrative Agent
the portion of such assumed payment that was made available to such Lender in
Same Day Funds, together with interest thereon in respect of each day from and
including the date such amount was made available by the Administrative Agent
to such Lender to the date such amount is repaid to the Administrative Agent in
Same Day Funds at the Overnight Rate from time to time in effect.


 


(c)           A notice of the Administrative Agent
to any Lender or the Borrower with respect to any amount owing under §§2.4.2(a) and
(b) shall be conclusive, absent manifest error.


 


27

















 


§2.5.       Reduction of Total Commitment.  The Borrower shall
have the right at any time and from time to time prior to the Maturity Date
upon three (3) Business Days’ prior written notice to the Administrative
Agent to reduce by $5,000,000 or any whole multiple of $1,000,000 in excess
thereof or terminate entirely the Total Commitment, whereupon the Commitment
Amount of each Lender shall be reduced pro rata in accordance with its
Commitment Percentage by the amount specified in such notice or, as the case
may be, terminated.  Promptly after
receiving any notice of the Borrower delivered pursuant to this §2.5, the
Administrative Agent will notify the Lenders of the substance thereof.  Upon the effective date of any such reduction
or termination, the Borrower shall pay to the Administrative Agent for the
respective accounts of the Lenders the full amount of the Facility Fee then
accrued on the amount of the reduction. 
No reduction or termination of the Total Commitment may be reinstated.


 


§2.6.       Maturity and Other
Mandatory Repayments of Revolving Credit Loans.


 


(a)           The Borrower promises to pay on the
Maturity Date, and there shall become absolutely due and payable on the
Maturity Date, all of the Revolving Credit Loans outstanding to the Borrower on
such date, together with any and all accrued and unpaid interest thereon.


 


(b)           If at any time the Administrative
Agent notifies the Borrower that the sum, without duplication, of (i) the
Dollar Equivalent of the outstanding aggregate principal amount of the
Revolving Credit Loans plus (ii) the outstanding aggregate principal
amount of Swing Line Loans plus (iii) the Maximum Drawing Amount plus (iv) all
Unpaid Reimbursement Obligations is equal to or exceeds an amount equal to 102%
of the Total Commitment, then the Borrower shall, within two (2) Business
Days after receipt of such notice, pay to the Administrative Agent an amount
sufficient to reduce the sum of clauses (i)-(iv) as of such date of
payment to an amount not to exceed 100% of the Total Commitment then in effect,
such payment to be applied to the Revolving Credit Loans or Unpaid
Reimbursement Obligations for the respective accounts of the Lenders.


 


(c)           If at any time the Administrative
Agent notifies the Borrower that the sum, without duplication, of (i) the
Dollar Equivalent of the outstanding aggregate principal amount of the
Revolving Credit Loans plus (ii) the outstanding aggregate principal
amount of Swing Line Loans plus (iii) the Maximum Drawing Amount plus (iv) all
Unpaid Reimbursement Obligations exceeds an amount equal to 100% of the Total
Commitment, but is less than 102%, then the Borrower shall, within five (5) Business
Days after receipt of such notice, pay to the Administrative Agent an amount
sufficient to reduce the sum of clauses (i)-(iv) as of such date of
payment to an amount not to exceed 100% of the Total Commitment then in effect,
such payment to be applied to the Revolving Credit Loans or Unpaid
Reimbursement Obligations for the respective accounts of the Lenders.


 


(d)           If at any time the Administrative
Agent notifies the Borrower that the sum, without duplication, of (i) the
Dollar Equivalent of the outstanding aggregate principal amount of the
Revolving Credit Loans denominated in Alternative Currencies plus (ii) the
Maximum Drawing Amount of all Letters of Credit denominated in Alternative
Currencies plus (iii) all Unpaid Reimbursement Obligations with respect to
Letters of Credit denominated in Alternative 


 


28

















 


Currencies
exceeds an amount equal to 102% of the Alternative Currency Sublimit, then the
Borrower shall, within two (2) Business Days after receipt of such notice,
pay to the Administrative Agent an amount sufficient to reduce the sum of
clauses (i)-(iii) as of such date of payment to an amount not to exceed
100% of the Alternative Currency Sublimit then in effect, such payment to be
applied to such Revolving Credit Loans or Unpaid Reimbursement Obligations for
the respective accounts of the Lenders.


 


(e)           If at any time the Administrative
Agent notifies the Borrower that the sum, without duplication, of (i) the
Dollar Equivalent of the outstanding aggregate principal amount of the Revolving
Credit Loans denominated in Alternative Currencies plus (ii) the Maximum
Drawing Amount of all Letters of Credit denominated in Alternative Currencies
plus (iii) all Unpaid Reimbursement Obligations with respect to Letters of
Credit denominated in Alternative Currencies exceeds an amount equal to 100% of
the Alternative Currency Sublimit, but is less than 102%, then the Borrower
shall, within five (5) Business Days after receipt of such notice, pay to
the Administrative Agent an amount sufficient to reduce the sum of clauses (i)-(iii) as
of such date of payment to an amount not to exceed 100% of the Alternative
Currency Sublimit then in effect, such payment to be applied to such Revolving
Credit Loans or Unpaid Reimbursement Obligations for the respective accounts of
the Lenders.


 


(f)            So long as no Event of Default has
occurred and is continuing, each prepayment of Revolving Credit Loans shall,
subject to §4.16, be allocated among the Lenders, in proportion, as nearly as
practicable to the respective unpaid principal amount of the Revolving Credit
Loans made by each Lender, with adjustments to the extent practicable to
equalize any prior payments or repayments not exactly in proportion.


 


§2.7.       Optional Repayments
of Revolving Credit Loans.  The Borrower shall have the right, at its
election, to repay the outstanding amount of the Revolving Credit Loans, as a
whole or in part, at any time without penalty or premium, provided that any
full or partial repayment of the outstanding amount of any Eurocurrency Rate
Loans pursuant to this §2.7 may be made only on the last day of the Interest
Period relating thereto unless the Borrower pays each Lender in accordance with
§4.10, the costs and expenses incurred by such Lender as a result of the
repayment of such Eurocurrency Rate Loan on a day other than the last day of
the Interest Period relating thereto. 
The Borrower shall give the Administrative Agent prior written notice no
later than (a) 1:00 p.m. (New York time) on the date of any proposed
repayment pursuant to this §2.7 of Base Rate Loans, (b) 1:00 p.m.
(New York time), three (3) Business Days prior to any proposed repayment
pursuant to this §2.7 of Eurocurrency Rate Loans denominated in Dollars, and (c) 1:00 p.m.
(New York time), four (4) Business Days (or five (5), in the case of
prepayment of Eurocurrency Rate Loans denominated in Australian Dollars or
Special Notice Currencies) prior to any proposed repayment pursuant to this
§2.7 of Eurocurrency Rate Loans denominated in an Alternative Currency, in each
case specifying the proposed date of repayment of such Revolving Credit Loans
and the principal amount to be repaid. 
Each such partial repayment of the Revolving Credit Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall be applied, in the absence of instruction by the Borrower,
first to the principal of Base Rate Loans and then to the principal of
Eurocurrency Rate Loans.  Each partial
repayment of Revolving Credit Loans shall, subject to §4.16, be allocated among
the Lenders, in proportion, as nearly as practicable, to the respective unpaid
principal amount of the Revolving Credit Loans made by 


 


29

















 


each
Lender being repaid, with adjustments to the extent practicable to equalize any
prior repayments not exactly in proportion.


 


§2.8.       Interest on
Revolving Credit Loans.  (a) During the Revolver Period, except
as otherwise provided in §4.11 hereof,


 


(i)            each Base Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and ending on
the last day of the Interest Period with respect thereto at the rate per annum
equal to the Base Rate plus the Applicable Margin; and


 


(ii)           each Eurocurrency Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the rate
per annum equal to the Eurocurrency Rate determined for such Interest Period
plus the Applicable Margin plus (in the case of a Eurocurrency Rate Loan of any
Lender which is denominated in an Alternative Currency and is lent from a
Lending Office in the United Kingdom or a Participating Member State) the
Mandatory Cost.


 


(b)           The Borrower promises to pay interest
on each Revolving Credit Loan in arrears on each Interest Payment Date
applicable with respect thereto.


 


§2.9.       Conversion Options.


 


§2.9.1.    Conversion to
Different Type of Revolving Credit Loan.  The Borrower may elect from time to time to
convert any outstanding Revolving Credit Loan to a Revolving Credit Loan of
another Type, provided that (a) with respect to any such conversion of a
Eurocurrency Rate Loan denominated in Dollars to a Base Rate Loan, the Borrower
shall give the Administrative Agent at least one (1) Business Day’s prior
written notice of such election; (b) with respect to any such conversion
of a Eurocurrency Rate Loan denominated in an Alternative Currency to a Base
Rate Loan, the Borrower shall give the Administrative Agent at least four (4) Business
Days’ (or five (5) Business Days in the case of Loans denominated in
Australian Dollars or a Special Notice Currency) prior written notice of such
election; (c) with respect to any such conversion of a Base Rate Loan to a
Eurocurrency Rate Loan denominated in Dollars, the Borrower shall give the
Administrative Agent at least three (3) Business Days’ prior written
notice of such election; (d) with respect to any such conversion of a Base
Rate Loan to a Eurocurrency Rate Loan denominated in an Alternative Currency,
the Borrower shall give the Administrative Agent at least four (4) Business
Days’ (or five (5) Business Days in the case of Loans denominated in
Australian Dollars or a Special Notice Currency) prior written notice of such
election; (e) unless the Borrower complies with §4.10, with respect to any
such conversion of a Eurocurrency Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto; and (f) no Base Rate Loan may be converted into a
Eurocurrency Rate Loan when any Default or Event of Default has occurred and is
continuing, and during the continuance of any Default or Event of Default, the
Required Lenders may demand that any or all of the then outstanding
Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or
redenominated into Dollars in the amount of the Dollar Equivalent thereof, on
the last day of the then current Interest Period with respect thereto.  On the date on which such conversion is being
made each Lender shall take such action as is necessary to transfer its
Commitment Percentage of such Revolving Credit Loans to its Lending


 


30
















 


Office for
domestic loans or its Lending Office for Eurocurrency Rate Loans, as the case
may be.  All or any part of outstanding
Revolving Credit Loans of any Type may be converted into a Revolving Credit
Loan of another Type as provided herein, provided that any partial conversion
shall be in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof.  Each
Conversion Request relating to the conversion of a Revolving Credit Loan to a
Eurocurrency Rate Loan shall be irrevocable by the Borrower. Notwithstanding
the foregoing, no Loan may be converted into a Loan denominated in a different
currency, but instead must be prepaid in the original currency of such Loan and
reborrowed in the other currency.


 


§2.9.2.    Continuation of Type
of Revolving Credit Loan.  Any Revolving Credit Loan of any Type may be
continued as a Revolving Credit Loan of the same Type upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with the
notice provisions contained in §2.9.1 hereof; provided that no
Eurocurrency Rate Loan may be continued as such when any Default or Event of
Default has occurred and is continuing, but shall be automatically converted to
a Base Rate Loan on the last day of the first Interest Period relating thereto
ending during the continuance of any Default or Event of Default of which
officers of the Administrative Agent active upon the Borrower’s account have
actual knowledge.  In the event that the
Borrower fails to provide any such notice with respect to continuation of a
Eurocurrency Rate Loan as such, than such Eurocurrency Rate shall be
automatically converted to a Base Rate Loan on the last day of the Interest
Period relating thereto; provided, however, that in the case of a
failure to timely request a continuation of a Eurocurrency Rate Loan
denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of
one month.  The Administrative Agent
shall notify the Lenders and the Borrower promptly when any such automatic
conversion contemplated by this §2.9.2 is scheduled to occur.


 


§2.9.3.    Eurocurrency Rate
Loans.  Any conversion to or from Eurocurrency Rate
Loans shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of all Eurocurrency
Rate Loans having the same Interest Period shall not be less than $5,000,000 or
a whole multiple of $1,000,000 in excess thereof.  No more than six (6) Eurocurrency Rate
Loans having different Interest Periods may be outstanding at any time.


 


§2.10.     The Swing Line.


 


§2.10.1.         The Swing Line Loans.  Subject to the terms and
conditions hereinafter set forth, the Administrative Agent, in reliance upon
the agreements of the other Lenders set forth in this §2.10, may in its sole
discretion make loans in Dollars to the Borrower (the “Swing  Line
Loans”) on any Business Day prior to the Maturity Date in an aggregate
principal amount not to exceed the Swing Line Sublimit at any one time
outstanding.  Each Swing Line Loan shall
be in a minimum amount equal to $1,000,000 or an integral multiple
thereof.  Notwithstanding any other
provisions of this Credit Agreement and in addition to the limit set forth above,
at no time shall the aggregate principal amount of all outstanding Swing Line
Loans exceed the remainder of (a) the Total Commitment then in effect
minus (b) the sum of, without duplication, (i) the Dollar Equivalent
of the aggregate principal amount of all 


 


31

















 


Revolving
Credit Loans outstanding, plus (ii) the Maximum Drawing Amount, plus (iii) all
Unpaid Reimbursement Obligations.


 


§2.10.2.         Notice
of Borrowing.  When the Borrower desires the Administrative
Agent to make a Swing Line Loan, it shall send to the Administrative Agent
written notice in the form of Exhibit E hereto
(or telephonic notice confirmed in a writing in the form of Exhibit E hereto) of each Swing Line Loan
requested hereunder (a “Swing  Line  Loan  Request”)
not later than 2:00 p.m. (New York time) on the proposed Drawdown Date of
any Swing Line Loan.  Each such Swing
Line Loan Request shall set forth the principal amount of the proposed Swing
Line Loan and the Swing Line Loan Maturity Date relating to such Swing Line
Loan, which shall in no event be later than Maturity Date.  Each Swing Line Loan Request shall be
irrevocable and binding on the Borrower and shall obligate the Borrower to
borrow the Swing Line Loan from the Administrative Agent on the proposed
Drawdown Date thereof.  Upon satisfaction
of the applicable conditions set forth in this Credit Agreement, on the
proposed Drawdown Date the Administrative Agent shall, in its sole discretion,
make the Swing Line Loan available to the Borrower no later than 3:00 p.m.
(New York time) on the proposed Drawdown Date by crediting the amount of the
Swing Line Loan to the account specified by the Borrower; provided that the Administrative Agent shall not advance any Swing
Line Loans after it has received notice from any Lender that a Default or Event
of Default has occurred and stating that no new Swing Line Loans are to be made
until such Default or Event of Default has been cured or waived in accordance
with the provisions of this Credit Agreement.


 


§2.10.3.         Interest
on Swing Line Loans.  Each Swing Line Loan shall, except as
otherwise provided in §4.11 hereof, bear interest from the Drawdown Date
thereof until repaid in full at the rate per annum equal to the Base Rate plus
the Applicable Margin, which shall be paid on each Interest Payment Date for
Base Rate Loans.


 


§2.10.4.         Repayment
of Swing Line Loans.  The Borrower absolutely and unconditionally
promises to pay each outstanding Swing Line Loan on or prior to the Swing Line
Loan Maturity Date relating thereto. 
Upon notice by the Administrative Agent on any Business Day following
the Swing Line Loan Maturity Date relating to each Swing Line Loan, in the
event that the Borrower has not repaid such Swing Line Loan, each of the
Lenders hereby agrees to make Revolving Credit Loans to the Borrower
constituting Base Rate Loans, on the next succeeding Business Day following
such notice, in an amount equal to such Lender’s Commitment Percentage of the
aggregate amount of all Swing Line Loans outstanding and overdue.  The proceeds thereof shall be applied
directly by the Administrative Agent to repay outstanding Swing Line
Loans.  Each Lender hereby absolutely,
unconditionally and irrevocably agrees to make such Revolving Credit Loans upon
one Business Day’s notice as set forth above, notwithstanding (a) that the
amount of such Revolving Credit Loan may not comply with the applicable
minimums set forth herein, (b) the failure of the Borrower to meet the
applicable conditions set forth herein, (c) the occurrence or continuance
of a Default or an Event of Default hereunder, and (d) the Total
Commitment in effect at such time.  In
the event that it is impracticable for such Revolving Credit Loan to be made
for any reason on the date otherwise required above, then each Lender hereby
agrees that it shall forthwith purchase (as of the date such Revolving Credit
Loan would have been made, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the
Administrative Agent, and the Administrative Agent shall sell to each Lender,
such participations in the Swing 


 


32

















 


Line Loans
(including all accrued and unpaid interest thereon) outstanding as shall be
necessary to cause the Lender’s to share in such Swing Line Loans pro rata based on their respective Commitment
Percentages (without regard to any termination of the Total Commitment
hereunder) by making available to the Administrative Agent an amount equal to
such Lender’s participation in the Swing Line Loans; provided that (i) all interest payable on the Swing Line Loans
(other than interest received by the Administrative Agent pursuant to clause
(ii)) shall be for the account of the Administrative Agent as a funding and
administrative fee until the date as of which the respective participation is
purchased, and (ii) at the time any purchase of such participation is
actually made, the purchasing Lender shall be required to pay the Administrative
Agent interest on the principal amount of the participation so purchased for
each day from and including the date such Loan would otherwise have been made
until the date of payment for such participation at the rate of interest then
applicable to such Swing Line Loans during such period.  The Borrower shall have the right, at its
election, to repay the outstanding amount of a Swing Line Loan, as a whole or
in part, at any time without penalty or premium.


 


§2.11.     Evidence of Debt.


 


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


 


(b)           In addition to the accounts and
records referred to in subsection (a), each Lender and the Administrative Agent
shall maintain in accordance with its usual practice accounts or records
evidencing the purchases by such Lender of participations in Letters of Credit
and Swing Line Loans.  In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


 


§2.12.     Increase in
Commitments.


 


(a)           Request  for  Increase.  Provided there exists no Default or Event of
Default, upon notice to the Administrative Agent (which shall promptly notify
the Lenders), at any time after the Closing Date, the Borrower may from time to
time, request an increase in the 


 


33

















 


Total
Commitment by an amount (for all such requests) not exceeding $500,000,000; provided
that (i) any such request for an increase shall be in a minimum amount of
$20,000,000, and (ii) the Borrower may make a maximum of three such
requests.  At the time of sending such
notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).


 


(b)           Lender  Elections  to
Increase.  Each Lender shall
notify the Administrative Agent within such time period whether or not it
agrees to increase its Commitment Amount and, if so, whether by an amount equal
to, greater than, or less than its Commitment Percentage of such requested
increase.  Any Lender not responding
within such time period shall be deemed to have declined to increase its
Commitment Amount.


 


(c)           Notification  by  Administrative
Agent;  Additional  Lenders. 
The Administrative Agent shall notify the Borrower and each Lender of
the Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested
increase and subject to the approval of the Administrative Agent, the Issuing
Banks and the lender of the Swing Line Loans (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.


 


(d)           Effective  Date  and
Allocations.  If the Total
Commitment is increased in accordance with this Section, the Administrative
Agent and the Borrower shall determine the effective date (the “Increase
Effective  Date”) and the final allocation of such increase.  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase
and the Increase Effective Date.  An
increase in the Total Commitment pursuant to this §2.12 and any amendments to
this Credit Agreement made solely to evidence such increase shall not require
the consent of any Lender not participating in such increase.


 


(e)           Conditions  to  Effectiveness
of  Increase.  As a
condition precedent to such increase, the Borrower shall deliver to the Administrative
Agent a certificate of each member of the Obligor Group dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by an
authorized officer of such Person (i) certifying and attaching the
resolutions adopted by such Person approving or consenting to such increase,
and (ii) in the case of the Borrower, certifying that, no Default or Event
of Default exists.  The Borrower shall
prepay any Revolving Credit Loans outstanding on the Increase Effective Date
(and pay any additional amounts required pursuant to §4.10) to the extent
necessary to keep the outstanding Revolving Credit Loans ratable with any
revised Commitment Percentages arising from any nonratable increase in the
Commitment Amounts under this Section.


 


(f)            Conflicting  Provisions.  This Section shall supersede any
provisions in §24 to the contrary.


 


34

















 


§3.          LETTERS OF CREDIT.


 


§3.1.       Letters of Credit.


 


(a)           Subject to the terms and conditions
set forth herein, (i) each Issuing Bank agrees, in reliance upon the
agreements of the Lenders set forth in this §3, (A) from time to time on
any Business Day during the period from the Closing Date until the day that is
ten (10) days prior to the Maturity Date (or, if such day is not a
Business Day, the next preceding Business Day), to issue Letters of Credit
denominated in Dollars or in one or more Alternative Currencies for the account
of the Borrower, and to amend or extend Letters of Credit previously issued by
it, in accordance with §3.2 below, and (B) to honor drawings under the
Letters of Credit; and (ii) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower and any drawings
thereunder; provided that (w) at no time shall the Maximum Drawing
Amount of all Letters of Credit outstanding exceed the Letter of Credit
Sublimit or, if less, the Total Commitment, (x) at no time shall the sum
of (1) the Dollar Equivalent of the aggregate principal amount of all
Revolving Credit Loans outstanding, plus (2) the aggregate principal
amount of all Swing Line Loans outstanding, plus (3) the aggregate Maximum
Drawing Amount and all Unpaid Reimbursement Obligations exceed the Total
Commitment then in effect, (y) except to the extent otherwise agreed by an
Issuing Bank in its sole discretion and solely as to itself, at no time shall
the sum of the Maximum Drawing Amount of all Letters of Credit outstanding and
issued by any Issuing Bank plus all Unreimbursed Amounts owing to such Issuing
Bank exceed $250,000,000 in the aggregate, and (z) subject to §2.6 hereof,
at no time shall the sum of (I) the Dollar Equivalent of the aggregate
principal amount of all Revolving Credit Loans denominated in Alternative
Currencies outstanding plus (II) the aggregate Maximum Drawing Amount of
all Letters of Credit denominated in Alternative Currencies and all Unpaid
Reimbursement Obligations with respect to Letters of Credit denominated in
Alternative Currencies exceed the Alternative Currency Sublimit.  Each request by the Borrower for the issuance
or amendment of a Letter of Credit shall be deemed to be a representation by
the Borrower that the issuance or amendment so requested complies with the
conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or will expire or that have been drawn upon and reimbursed.


 


(b)           No Issuing Bank shall issue any
Letter of Credit, if:


 


(i)            subject to §3.2(c), the expiry date
of such requested Letter of Credit would occur more than twelve (12) months
after the date of issuance or last extension, unless the Required Lenders have
approved such expiry date; or


 


(ii)           the expiry date of such requested
Letter of Credit would occur after the date that is ten (10) days prior to
the Maturity Date, unless all the Lenders have approved such expiry date.


 


(c)           No Issuing Bank shall be under any
obligation to issue any Letter of Credit if:


 


35

















 


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


 


(ii)           the issuance of such Letter of Credit
would violate one or more policies of such Issuing Bank applicable to letters
of credit generally;


 


(iii)          except as otherwise agreed by the
Administrative Agent and such Issuing Bank, such Letter of Credit is in an
initial stated amount less than $10,000;


 


(iv)          except as otherwise agreed by the
Administrative Agent and such Issuing Bank, such Letter of Credit is to be
denominated in a currency other than Dollars or an Alternative Currency;


 


(v)           such Issuing Bank does not as of the
issuance date of such requested Letter of Credit issue Letters of Credit in the
requested currency;


 


(vi)          any Lender is at that time a
Defaulting Lender, unless such Issuing Bank has entered into arrangements,
including the delivery of Cash Collateral, satisfactory to such Issuing Bank
(in its sole discretion) with the Borrower or such Lender to eliminate such
Issuing Bank’s Fronting Exposure (after giving effect to §4.16(a)(iv)) with
respect to the Defaulting Lender arising from the Letter of Credit then
proposed to be issued, the Maximum Drawing Amount of all Letters of Credit then
outstanding and all other Unpaid Reimbursement Obligations as to which such
Issuing Bank has actual or potential Fronting Exposure, as it may elect in its
sole discretion.


 


(d)           No Issuing Bank shall amend any
Letter of Credit if such Issuing Bank would not be permitted at such time to
issue such Letter of Credit in its amended form under the terms hereof.


 


(e)           No Issuing Bank shall be under any
obligation to amend any Letter of Credit if such Issuing Bank would have no
obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof.


 


(f)            Each Issuing Bank shall act on
behalf of the Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and each Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in §13
with respect to any acts taken or omissions suffered by such Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the documents related thereto pertaining to such Letters of Credit as fully
as if the term “Administrative Agent” as used in §13 included 


 


36

















 


such
Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to such Issuing Bank.


 


§3.2.       Procedures for
Issuance and Amendment of Letters of Credit; Auto-Extension of Letters of
Credit.


 


(a)           Each Letter of Credit shall be issued
or amended, as the case may be, upon the request of the Borrower delivered to
the applicable Issuing Bank (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and signed by
an authorized officer of the Borrower. 
Such Letter of Credit Application must be received by the applicable
Issuing Bank and the Administrative Agent not later than (A) 11:00 a.m.
(New York time) at least five (5) Business Days (provided that such
Issuing Bank shall use its commercially reasonable efforts to issue such Letter
of Credit within two (2) Business Days following its receipt of any written
request therefor) prior to the proposed issuance date or date of amendment, as
the case may be, of any Letter of Credit denominated in Dollars and (B) 11:00 a.m.
(New York time) at least eight (8) Business Days (provided that
such Issuing Bank shall use its commercially reasonable efforts to issue such
Letter of Credit within five (5) Business Days following its receipt of
any written request therefor) prior to the proposed issuance date or date of
amendment, as the case may be, of any Letter of Credit denominated in an
Alternative Currency; or in each case, such later date and time as the
Administrative Agent and such Issuing Bank may agree in a particular instance
in their sole discretion.  In the case of
a request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the applicable
Issuing Bank: (i) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (ii) the amount and currency thereof;
(iii) the expiry date thereof; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by such beneficiary
in case of any drawing thereunder; (vi) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder; and (vii) such
other matters as such Issuing Bank may reasonably require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the applicable Issuing Bank (w) the
Letter of Credit to be amended; (x) the proposed date of amendment thereof
(which shall be a Business Day); (y) the nature of the proposed amendment;
and (z) such other matters as such Issuing Bank may reasonably
require.  Additionally, the Borrower
shall furnish to the applicable Issuing Bank and the Administrative
Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any documents relating thereto,
as such Issuing Bank or the Administrative Agent may reasonably require.


 


(b)           Promptly after receipt of any Letter
of Credit Application, the applicable Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Application from the Borrower and,
if not, such Issuing Bank will provide the Administrative Agent with a copy
thereof.  Unless the applicable Issuing Bank
has received written notice from any Lender, the Administrative Agent or the
Borrower, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in §10 shall not then be satisfied, then, subject to the
terms and conditions hereof, such Issuing Bank shall, on the requested date,
issue a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with such 


 


37

















 


Issuing
Bank’s usual and customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable Issuing Bank a risk participation in such Letter
of Credit in an amount equal to the product of such Lender’s Commitment
Percentage times the amount of such Letter of Credit.


 


(c)           If the Borrower so requests in any
applicable Letter of Credit Application, the applicable Issuing Bank may, in
its sole discretion, issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension  Letter  of  Credit”);
provided that any such Auto-Extension Letter of Credit must permit such
Issuing Bank to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension
Notice  Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. 
Unless otherwise directed by the applicable Issuing Bank, the Borrower
shall not be required to make a specific request to such Issuing Bank for any
such extension.  Once an Auto-Extension
Letter of Credit has been issued, the Lenders, except as provided below, shall
be deemed to have authorized (but may not require) the applicable Issuing Bank,
and such Issuing Bank, except as provided below, shall have agreed, to permit
the extension of such Letter of Credit at any time to an expiry date not later
than the date that is ten (10) days prior to the Maturity Date; provided,
however, that such Issuing Bank shall not permit such extension if (i) such
Issuing Bank has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause §3.1(b) or
otherwise), or (ii) it has received notice (which may be by telephone or
in writing) on or before the day that is seven (7) Business Days before
the Non-Extension Notice Date (A) from the Administrative Agent that the
Required Lenders have elected not to permit such extension (but only if such
election is consistent with the terms of the applicable Letter of Credit and
the Borrower would not be entitled to the issuance of such Letter of Credit in
its revised forms (as extended) under the terms thereof) or (B) from the
Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in §10 is not then satisfied, and in each such
case directing such Issuing Bank not to permit such extension.


 


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


 


§3.3.       Drawings and
Reimbursements.


 


(a)           Upon receipt from the beneficiary of
any Letter of Credit of any notice of a drawing under such Letter of Credit,
the applicable Issuing Bank shall notify the Borrower and the Administrative
Agent thereof.  In the case of a Letter
of Credit denominated in an Alternative Currency, the Borrower shall reimburse
the applicable Issuing Bank in such Alternative Currency, unless the Borrower
shall have notified such Issuing Bank promptly following receipt of the notice
of drawing that the Borrower will reimburse such Issuing Bank in Dollars.  In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the applicable Issuing Bank shall notify the Borrower of the Dollar 


 


38

















 


Equivalent
of the amount of the drawing promptly following the determination thereof. Not
later than 11:00 a.m. (New York time) (or in the event the Borrower has
not been notified of such drawing prior to such time, within two hours of
receipt of such notice) on the date of any payment by the applicable Issuing
Bank under a Letter of Credit to be reimbursed in Dollars, or the Applicable
Time on the date of any payment by such Issuing Bank to be reimbursed in an
Alternative Currency (each such date, an “Honor  Date”), the
Borrower shall reimburse such Issuing Bank through the Administrative Agent in
an amount equal to the amount of such drawing and in the applicable
currency.  If the Borrower fails to so
reimburse such Issuing Bank by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date and the amount of the
unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the “Unreimbursed  Amount”), and the amount
of such Lender’s Commitment Percentage thereof. 
In such event, the Borrower shall be deemed to have requested a Base
Rate Loan to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in
§2.2 for the principal amount of Base Rate Loans, but subject to the amount of
the unutilized portion of the Total Commitment and the conditions set forth in
§10 (other than the delivery of a Loan Request).  Any notice given by the applicable Issuing
Bank or the Administrative Agent pursuant to this §3.3(a) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.


 


(b)           Each Lender shall upon any notice
pursuant to §3.3(a) make funds available (and the Administrative Agent may
apply Cash Collateral provided for this purpose) for the account of the
applicable Issuing Bank, in Dollars, at the Administrative Agent’s Head Office
for Dollar-denominated payments, an amount equal to its Commitment Percentage times
the Unreimbursed Amount not later than 1:00 p.m. (New York time) on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of §3.3(c), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the applicable Issuing Bank in Dollars.


 


(c)           With respect to any Unreimbursed
Amount that is not fully refinanced by a Base Rate Loan on the Honor Date
because the conditions set forth in §10 cannot be satisfied or for any other
reason, such amount shall be an Unpaid Reimbursement Obligation, which Unpaid
Reimbursement Obligation shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the
Administrative Agent for the account of the applicable Issuing Bank pursuant to
§3.3(b) shall be deemed payment in respect of its reimbursement obligation
in satisfaction of its participation obligation under this §3.3.


 


(d)           Until each Lender funds its Loan or
reimbursement obligation pursuant to this §3.3 to reimburse the applicable
Issuing Bank for any amount drawn under any Letter of Credit, interest in
respect of such Lender’s Commitment Percentage of such amount shall be solely
for the account of such Issuing Bank.


 


(e)           Each Lender’s obligation to make
Loans or payments with respect to its reimbursement obligation under this §3.3
to reimburse the applicable Issuing Bank for amounts 


 


39

















 


drawn
under Letters of Credit, as contemplated by this §3.3, shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against such Issuing Bank, the Borrower, any Subsidiary of such Issuing
Bank or the Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default, or (iii) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation to make Loans pursuant to this
§3.3 is subject to the conditions set forth in §10 (other than delivery by the
Borrower of a Loan Request).  No such
payment of any Lender’s reimbursement obligations under this §3.3 shall relieve
or otherwise impair the obligation of the Borrower to reimburse the applicable
Issuing Bank for the amount of any payment made by such Issuing Bank under any
Letter of Credit issued by such Issuing Bank, together with interest as
provided herein.


 


(f)            If any Lender fails to make
available to the Administrative Agent for the account of the applicable Issuing
Bank any amount required to be paid by such Lender pursuant to the foregoing
provisions of this §3.3 by the time specified in §3.3(b), then, without
limiting the other provisions of this Credit Agreement, such Issuing Bank shall
be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately
available to such Issuing Bank at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, plus any administrative, processing,
or similar fees customarily charged by such Issuing Bank in connection with the
foregoing.  A certificate of the
applicable Issuing Bank submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (f) shall be
conclusive absent manifest error.


 


§3.4.       Repayment of Participations.  At any time after
the applicable Issuing Bank has made a payment under any Letter of Credit and
has received from any Lender such Lender’s payment in respect of its
reimbursement obligation under §3.3, if the Administrative Agent receives for
the account of such Issuing Bank any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender
its Commitment Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
reimbursement obligation under §3.3 was outstanding) in Dollars and in the same
funds as those received by the Administrative Agent. If any payment received by
the Administrative Agent for the account of the applicable Issuing Bank
pursuant to §3.3(a) is required to be returned in connection with any
bankruptcy or insolvency proceeding or otherwise (including pursuant to any
settlement entered into by such Issuing Bank in its discretion), each Lender
shall pay to the Administrative Agent for the account of such Issuing Bank its
Commitment Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the applicable Overnight
Rate from time to time in effect.  The
obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Credit Agreement.


 


40
















 


§3.5.       Obligations Absolute.  The obligation of the Borrower to reimburse the applicable
Issuing Bank for each drawing under each Letter of Credit such Issuing Bank has
issued shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Credit Agreement under all
circumstances, including the following:


 


(a)           any lack of validity or enforceability of such Letter of
Credit, this Credit Agreement, or any other Loan Document;


 


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


 


(c)           any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter of Credit;


 


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


 


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


 


(f)            any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary of the Borrower provided that nothing in this §3.5
shall impair the rights of the Borrower under §3.6.


 


The Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it and, in the
event of any claim of noncompliance with the Borrower’s instructions or other
irregularity, the Borrower will promptly notify the applicable Issuing
Bank.  The Borrower shall be conclusively
deemed to have waived any such claim against the applicable Issuing Bank and
its correspondents unless such notice is given as aforesaid.


 


§3.6.       Role of Issuing Banks.  Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, no Issuing Bank shall have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the 


 


41

















 


Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any
such document or the authority of the Person executing or delivering any such
document.  None of the Issuing Banks, the
Administrative Agent, any of their respective Affiliates, directors, officers,
employees, agents and advisors nor any correspondent, participant or assignee
of any Issuing Bank shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of the
Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of such Person’s gross negligence or willful misconduct;
or (iii) the due execution, effectiveness, validity or enforceability of
any document or instrument related to any Letter of Credit or any other
document relating thereto.  The Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. 
None of the Issuing Banks, the Administrative Agent, any of their
respective Affiliates, directors, officers, employees, agents and advisors nor
any correspondent, participant or assignee of any Issuing Bank shall be liable
or responsible for any of the matters described in clauses (a) through (f) of
§3.5; provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against an Issuing
Bank, and such Issuing Bank may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by such
Issuing Bank’s willful misconduct or gross negligence or such Issuing Bank’s
willful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying
with the terms and conditions of a Letter of Credit.   In furtherance and not in limitation of the
foregoing, each Issuing Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and no Issuing Bank shall be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason. The responsibility of each
Issuing Bank and its correspondents to the Borrower and the Lenders shall be
only to determine that the documents (including each draft) delivered under
each Letter of Credit in connection with such presentment shall be in
conformity on their face in all material respects with such Letter of Credit.


 


§3.7.       Applicability of ISP and UCP.  Unless otherwise
expressly agreed by the applicable Issuing Bank and the Borrower when a Letter
of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), (i) the rules of
the ISP shall apply to each standby Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance
shall apply to each commercial Letter of Credit.


 


§3.8.       Transitional Letters of Credit.  Schedule 3.8 contains a list of certain letters of credit issued
prior to the Closing Date for the account of the Borrower under the Existing
Credit Agreement (the “Existing Letters of
Credit”).  On the Closing Date, (a) the
Existing Letters of Credit shall be deemed to be Letters of Credit issued
pursuant to this §3 and shall be subject to all of the provisions applicable to
Letters of Credit under this Credit Agreement and (b) all liabilities of
the Borrower with respect to the Existing Letters of Credit shall constitute 


 


42

















 


Obligations
of such Borrower with respect to Letters of Credit in accordance with this
Credit Agreement and the Loan Documents as though such Borrower had delivered a
Letter of Credit Application under this Credit Agreement.  On the Closing Date, the letter of credit
fees owing with respect to the Existing Letters of Credit under §3.10 of the
Existing Credit Agreement shall be calculated and paid in full.  From and after the Closing Date, the Borrower
shall pay Letter of Credit Fees and such other fees as provided in §3.9, in
each case when due pursuant to §3.9, with respect to each of the Existing
Letters of Credit.


 


§3.9.       Letter of Credit Fee.  The Borrower shall, on the first day of each
calendar quarter for the immediately preceding calendar quarter, pay to the
Administrative Agent, in Dollars, a fee (the “Letter  of  Credit
Fee”) for each Letter of Credit issued, extended or renewed during such
calendar quarter by the applicable Issuing Bank at a rate per annum equal to (a) with
respect to each standby Letter of Credit, the Applicable Margin for standby
Letters of Credit in effect from time to time and (b) with respect to
documentary Letters of Credit, the Applicable Margin for documentary Letters of
Credit in effect from time to time, in each case, on the Maximum Drawing Amount
of such Letter of Credit for the period such Letter of Credit is
outstanding.  The Administrative Agent
shall, in turn, remit to each Lender (including Bank of America) such Lender’s
Commitment Percentage of the Letter of Credit Fee; provided, however,
that any Letter of Credit Fees otherwise payable for the account of a
Defaulting Lender with respect to any Letter of Credit as to which such
Defaulting Lender has not provided Cash Collateral satisfactory to the
applicable Issuing Bank pursuant to this §3 shall be payable, to the maximum
extent permitted by applicable law, to the other Lenders in accordance with the
upward adjustments in their respective Commitment Percentages allocable to such
Letter of Credit pursuant to §4.16(a)(iv), with the balance of such fee, if
any, payable to such Issuing Bank for its own account.  In addition, in respect of each Letter of
Credit, the Borrower shall pay the applicable Issuing Bank for its own account (i) quarterly
in arrears on the last day of each calendar quarter, a fronting fee as set
forth in the Fee Letter or as otherwise agreed between the Borrower and the
applicable Issuing Bank, and, (ii) at such other time or times as such
charges are customarily made by such Issuing Bank, such Issuing Bank’s
customary issuance, amendment, negotiation or document examination and other
administrative fees as in effect from time to time.


 


§3.10.     Conflict with Issuer Documents.  In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application or any other document related thereto, the terms hereof shall
control.


 


§4.          CERTAIN GENERAL PROVISIONS; FEES.


 


§4.1.       Closing, Administrative Agent and Other Fees.  The Borrower shall
pay (a) to the Administrative Agent for the accounts of the Lenders on the
Closing Date a closing fee as set forth in the Fee Letter, and (b) to the
Co-Lead Arrangers and the Lenders, in Dollars, such fees as shall have been
separately agreed upon in writing in the amounts and at the times so
specified.  All such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.


 


§4.2.       Facility Fee.  During the Revolver Period, the Borrower
agrees to pay to the Administrative Agent for the accounts of the Lenders in
accordance with their respective 


 


43

















 


Commitment
Percentages,  subject to adjustment
as provided in §4.16, a facility fee (the “Facility
Fee”), which shall be calculated for each day at a per annum rate as set
forth in the definition of Applicable Margin with respect to the Facility Fee
in effect at such time on the Total Commitment. 
The Facility Fee shall be payable quarterly in arrears on the last day
of each calendar quarter for the calendar quarter then ended commencing on the
first such date following the Closing Date, with a final payment on the
Maturity Date or any earlier date on which the Total Commitment shall
terminate.


 


§4.3.       Funds for Payments.


 


§4.3.1.    Payments to Administrative Agent.  All payments of principal, interest, Facility
Fees, Letter of Credit Fees and any other fees or amounts due hereunder or
under any of the other Loan Documents shall be made to the Administrative
Agent, for the respective accounts of the Lenders and the Administrative Agent,
not later than, except with respect to principal and interest on Loans
denominated in an Alternative Currency, 2:00 p.m. (New York time), at the
Administrative Agent’s Head Office or at such other location designated by the
Administrative Agent that the Administrative Agent may from time to time
designate, in each case in Same Day Funds. 
All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. 
If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.  Except as otherwise
expressly provided herein, all payments by the Borrower hereunder with respect
to principal and interest on Loans denominated in an Alternative Currency shall
be made to the Administrative Agent, for the account of the respective Lenders
to which such payment is owed, at the Administrative Agent’s Head Office, or at
such other location designated by the Administrative Agent that the
Administrative Agent may from time to time designate, in such Alternative
Currency and in Same Day Funds not later than the Applicable Time specified by
the Administrative Agent on the dates specified herein. Without limiting the
generality of the foregoing, the Administrative Agent may require that any
payments due under this Credit Agreement be made in the United States.


 


§4.3.2.    No Offset, Etc.  All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without condition or
deduction for any recoupment, defense, setoff or counterclaim.


 


§4.3.3.    Taxes.


 


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


 


44

















 


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


 


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


 


(c)           Tax Indemnifications.  (i) Without limiting the provisions of
subsection (a) or (b) above, the Borrower shall, and does hereby,
indemnify the Administrative Agent, each Lender and each Issuing Bank, and shall
make payment in respect thereof 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) withheld or deducted by the Borrower or the Administrative
Agent or paid by the Administrative Agent, such Lender or such Issuing Bank, as
the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
governmental authority.  The Borrower
shall also, and does hereby, indemnify the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, for any amount
which a Lender or an Issuing Bank for any reason fails to pay indefeasibly to
the Administrative Agent as required by clause (ii) of this
subsection.  A reasonably detailed
certificate as to the amount of any such payment or liability delivered to the
Borrower by a Lender or an Issuing Bank (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or an Issuing Bank, shall be conclusive absent manifest error.  Any such claim against the Borrower must be
made within 180 days of the payment by the Administrative Agent or the Lender
to which such claim relates.


 


(ii)           Without limiting the provisions of subsection (a) or (b) above,
each Lender and each Issuing Bank shall, and does hereby, indemnify the
Borrower and the Administrative Agent, and shall make payment in respect
thereof within 10 days after demand therefor, against any and all Taxes and any
and all related losses, claims, liabilities, penalties, interest and expenses
(including the fees, charges and disbursements of any counsel for the Borrower
or  the Administrative Agent)
incurred by or asserted against the Borrower or the Administrative Agent by any
governmental authority as a result of the failure by such Lender or such
Issuing Bank, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such
Lender or such Issuing Bank, as the case may be, to the Borrower or the
Administrative Agent pursuant to subsection (e).  


 


45

















 


Each
Lender and each Issuing Bank hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender or such
Issuing Bank, as the case may be, under this Credit Agreement or any other Loan
Document against any amount due to the Administrative Agent under this clause
(ii).  The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or an Issuing Bank,
the termination of the Total Commitment and the repayment, satisfaction or
discharge of all other Obligations.


 


(d)           Evidence of Payments.
 Upon
request by the Borrower or the Administrative Agent, as the case may be, after
any payment of Taxes by the Borrower or by the Administrative Agent to a
governmental authority as provided in this §4.3.3, the Borrower shall deliver
to the Administrative Agent or the Administrative Agent shall deliver to the
Borrower, as the case may be, the original or a certified copy of a receipt
issued by such governmental authority evidencing such payment, a copy of any
return required by laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as
the case may be.


 


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


 


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


 


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


 


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


 


46

















 


but only
if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:


 


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


 


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


 


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


 


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


 


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


 


(C)           each Foreign Lender shall provide, promptly upon the
reasonable demand of the Borrower or the Administrative Agent, any information,
form or document, accurately completed, that may be required in order to
demonstrate that such Foreign Lender is in compliance with the requirements of
FATCA, including §1471(b) of the Code, if such Foreign Lender is a foreign
financial institution (as such term is defined in §1471(d)(4) of the Code)
or §1472(b), if such Foreign Lender is a non-financial foreign entity (as such
term is defined in §1472(d) of the Code).


 


(iii)          Each Lender shall promptly (A) notify the Borrower and
the Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction, and (B) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation
of its Lending Office) to avoid any requirement of applicable laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding
or deduction for taxes from amounts payable to such Lender.


 


(f)            Treatment of Certain Refunds.  Unless required by applicable laws, at no
time shall the Administrative Agent have any obligation to file for or
otherwise pursue on behalf of a Lender or an Issuing Bank, or have any
obligation to pay to any Lender or any Issuing Bank, 


 


47

















 


any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or
such Issuing Bank, as the case may be. 
If the Administrative Agent, any Lender or any Issuing Bank determines,
in its good faith judgment, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section, it
shall pay to the Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses incurred by the Administrative
Agent, such Lender or such Issuing Bank, as the case may be, and without
interest (other than any interest paid by the relevant governmental authority
with respect to such refund), provided that the Borrower, upon the
request of the Administrative Agent, such Lender or such Issuing Bank, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant governmental authority) to the
Administrative Agent, such Lender or such Issuing Bank in the event the
Administrative Agent, such Lender or such Issuing Bank is required to repay
such refund to such governmental authority. 
This subsection shall not be construed to require the Administrative
Agent, any Lender or any Issuing Bank to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.


 


§4.4.       Computations.  All computations of interest for Base Rate
Loans (including Base Rate Loans determined by reference to the Eurocurrency
Rate) shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed.  All other
computations of fees and interest shall be based on a 360-day year, and, in
each case, paid for the actual number of days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year), or, in the case of interest in respect of Loans denominated in
Alternative Currencies as to which market practice differs from the foregoing,
in accordance with such market practice. Except as otherwise provided in the
definition of the term “Interest Period”
with respect to Eurocurrency Rate Loans, whenever a payment hereunder or under
any of the other Loan Documents becomes due on a day that is not a Business
Day, the due date for such payment shall be extended to the next succeeding
Business Day, and interest shall accrue during such extension.  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to §4.3.1, bear interest for one day. 
Each determination by the Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.


 


§4.5.       Inability to Determine Eurocurrency Rate.  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
(whether in Dollars or an Alternative Currency) are not being offered to banks
in the applicable offshore interbank market for such currency for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan or
in connection with an existing or proposed Base Rate Loan (whether denominated
in Dollars or an Alternative Currency), or (c) the Eurocurrency Rate for
any requested Interest Period with respect to a proposed Eurocurrency Rate Loan
does not adequately and fairly reflect the cost to such 


 


48

















 


Lenders
of funding such Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender.  Thereafter, (x) the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall be
suspended, and (y) in the event of a determination described in the
preceding sentence with respect to the Eurocurrency Rate component of the Base
Rate, the utilization of the Eurocurrency Rate component in determining the Base
Rate shall be suspended, in each case until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans in the affected currency or currencies or, failing
that, will be deemed to have converted such request into a request for Base
Rate Loans in the amount specified therein.


 


§4.6.       Illegality.  Notwithstanding any other provisions herein,
if any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurocurrency Rate Loans (whether denominated in Dollars or an
Alternative Currency), such Lender shall forthwith give notice of such
circumstances to the Borrower and the other Lenders and (a) thereupon the
commitment of such Lender to make Eurocurrency Rate Loans in the affected
currency or currencies or convert Loans of another Type to Eurocurrency Rate
Loans in the affected currency or currencies shall forthwith be suspended and
such Lender’s Loans then outstanding as Eurocurrency Rate Loans in the affected
currency or currencies, if any, shall be automatically, on the last day of the
then current Interest Period relating thereto or within such earlier period as
may be required by law, (i) in the case of Eurocurrency Rate Loans
denominated in an Alternative Currency, converted to a Loan denominated in
Dollars (or at the timely request of the Borrower, a Loan denominated in an
unaffected Alternative Currency) and (ii) in the case of a Eurocurrency
Rate Loan denominated in Dollars, converted to a Base Rate Loan or (b) if
such notice asserts the illegality of such Lender making or maintaining Base
Rate Loans the interest rate on which is determined by reference to the
Eurocurrency Rate component of the Base Rate, the interest rate on which Base
Rate Loans of such Lender shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Eurocurrency
Rate component of the Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist.  The
Borrower hereby agrees promptly to pay the Administrative Agent for the account
of such Lender, upon demand by such Lender, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making any
conversion in accordance with this §4.6, including any interest or fees payable
by such Lender to lenders of funds obtained by it in order to make or maintain
its Eurocurrency Rate Loans hereunder.


 


§4.7.       Additional Costs, Etc.  If any change after the Closing Date to any present
applicable law or if any future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at
any time or from time to time hereafter made upon or otherwise issued to any
Lender or the Administrative Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:


 


49

















 


(a)           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) or any Issuing
Bank;


 


(b)           subject any Lender or any Issuing Bank to any tax of any
kind whatsoever with respect to this Credit Agreement, any Letter of Credit,
any participation in a Letter of Credit or any Eurocurrency Rate Loan made by
it, or change the basis of taxation of payments to such Lender or such Issuing
Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered by
§4.3.3 and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or such Issuing Bank);


 


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


 


(d)           result in the Mandatory Cost, as calculated hereunder, not
representing the cost to any Lender of complying with the requirements of the
Bank of England and/or the Financial Services Authority or the European Central
Bank in relation to its making, funding or maintaining Eurocurrency Rate Loans
denominated in an Alternative Currency,


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Loan the interest on which is determined by reference to the Eurocurrency
Rate (or of maintaining its obligation to make any such Loan), or to increase
the cost to such Lender or such Issuing Bank of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount of
any sum received or receivable by such Lender or such Issuing Bank hereunder
(whether of principal, interest or any other amount) then, upon request of such
Lender or such Issuing Bank, the Borrower will pay to such Lender or such
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.  Notwithstanding the foregoing, the Borrower
shall not be liable to any Lender or the Administrative Agent for any such
costs incurred more than sixty (60) days prior to receipt by the Borrower of
such demand for payment from such Lender or (as the case may be) the
Administrative Agent unless such costs were incurred prior to such 60-day
period solely as a result of such present or future applicable law being
retroactive to a date which occurred prior to such 60-day period.


 


§4.8.       Capital Adequacy.  If any Lender or the Administrative Agent
determines that the adoption of or change, after the Closing Date, in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for banks or bank
holding companies or any change in the interpretation or application thereof by
a court or governmental authority with appropriate jurisdiction has the effect
of reducing the rate of return on such Lender’s or such Issuing Bank’s capital
or on the capital of such Lender’s or such Issuing Bank’s holding company, if
any, as a consequence of this Credit Agreement, the Commitments of such Lender
or the Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s or


 


50
















 


such
Issuing Bank’s holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or such Issuing
Bank’s then existing policies and the policies of such Lender’s or such Issuing
Bank’s holding company with respect to capital adequacy and assuming full
utilization of such entity’s capital) by any amount deemed by such Lender or
(as the case may be) the Administrative Agent to be material, then such Lender
or the Administrative Agent may notify the Borrower of such fact.  To the extent that the amount of such
reduction in the return on capital is not reflected in the Base Rate or the
Eurocurrency Rate then the Borrower agrees to pay such Lender or (as the case may
be) the Administrative Agent for the amount of such reduction in the return on
capital as and when such reduction is determined upon presentation by such
Lender or (as the case may be) the Administrative Agent of a certificate in
accordance with §4.9 hereof, provided that the Borrower shall not be
liable to any Lender or the Administrative Agent for costs incurred more than
sixty (60) days prior to receipt by the Borrower of the notice referred to in
the immediately preceding sentence from such Lender or (as the case may be) the
Administrative Agent.  Each Lender shall
allocate such cost increases among its customers in good faith and on an
equitable basis.


 


§4.9.       Certificate.  A certificate setting forth any additional
amounts payable pursuant to §§4.7 or 4.8 hereof and a brief explanation of such
amounts which are due, submitted by any Lender or the Administrative Agent to
the Borrower, shall be conclusive, absent manifest error, that such amounts are
due and owing.  If the Borrower is
required to pay any additional amounts pursuant to §§4.7 or 4.8 hereof with
respect to any Lender, the Borrower may, following payment in full of the
amount or amounts due set forth in such certificate, take the actions permitted
by §4.12 hereof to replace such Lender.


 


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


 


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


 


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


 


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


 


(d)           any assignment of a Eurocurrency Rate Loan on a day other
than the last day of the Interest Period therefor as a result of a request by
the Borrower pursuant to §4.12.


 


For purposes of calculating amounts
payable by the Borrower to the Lenders under this §4.10, each Lender shall be
deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the
offshore 


 


51

















 


interbank market for such currency
for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded.


 


§4.11.     Interest After Default.  Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents, if not
repaid on or before the fifth calendar day following the day such payment was
due, shall bear interest from the due date thereof, compounded monthly and
payable on demand at any time from and after the fifth calendar day following
the day such payment was due, at a rate per annum equal to two percent (2%)
above the rate of interest then applicable thereto (or, if no rate of interest
is then applicable thereto, the Base Rate) until such amount shall be paid in
full (after as well as before judgment).


 


§4.12.     Replacement of Individual Lenders.  Upon the happening of any of the events set
forth in §§2.4.2, 4.3.3, 4.6, 4.7, 4.8, 4.13 or the last sentence of §24, or in
the case of a Defaulting Lender, the Borrower may (provided that at the time no
Default or Event of Default exists or would result after giving effect to the
Borrower’s action) prepay in full all Loans and other obligations owing by the
Borrower to each affected Lender under §§2.4.2, 4.3.3, 4.6, 4.7, 4.8, 4.13 or
the last sentence of §24 and/or each Defaulting Lender (each such Lender being
called a “Substituted Lender”), together
with all amounts payable by the Borrower under §4.10 hereof with respect to
such prepayment, and terminate the Commitment(s) of such Lender(s) subject
to the following conditions:


 


(a)           the Borrower shall have delivered to the Administrative
Agent not less than five (5) Business Days prior to the exercise of its
rights under this §4.12 a written commitment in form and substance satisfactory
to the Administrative Agent and each of the Lenders from a banking institution
(the “Replacement  Lender”) reasonably acceptable to the
Administrative Agent and each of the remaining Lenders (other than the
Substituted Lender) in which such Replacement Lender agrees to become a “Lender”
under this Credit Agreement, having a Commitment Amount in the amount of the
Substituted Lender’s Commitment Amount;


 


(b)           the Borrower shall have given appropriate notice of any
prepayment under this §4.12 as required by §4.7 and subject to all other
provisions of this Credit Agreement; and


 


(c)           simultaneously with any prepayment of all Loans and other
obligations owing by the Borrower to a Substituted Lender under this §4.12, the
Substituted Lender shall have assigned, pursuant to §17 hereof of this Credit
Agreement the Commitment of such Substituted Lender to the Replacement Lender
and such Replacement Lender shall have become a Lender under this Credit
Agreement, having a Commitment Amount in the amount of such Substituted Lender’s
Commitment Amount and such Replacement Lender shall have simultaneously funded
all such Loans prepaid hereunder. Each of the Lenders agrees that in the event
that it becomes a Substituted Lender pursuant to this §4.12, it shall cooperate
and assign its Commitment pursuant to this §4.12(c).


 


§4.13.     Additional Reserve Requirements.  The Borrower
shall pay to each Lender,
without duplication, (i) as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal 


 


52

















 


amount
of each Eurocurrency Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), and (ii) as long as such Lender shall be required to comply
with any reserve ratio requirement or analogous requirement of any other central banking or financial
regulatory authority imposed in respect of the maintenance of the Commitments
or the funding of the Eurocurrency Rate Loans in an Alternative Currency, such
additional costs (expressed as a percentage per annum and rounded upwards, if
necessary, to the nearest five decimal places), to the extent not reflected in
the Mandatory Cost, equal to the actual costs allocated to such Commitment or
Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which in each case shall be due
and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least ten (10) days’ prior notice
(with a copy to the Administrative Agent) of such additional interest or costs from such Lender.  If a Lender fails to give notice ten (10) days
prior to the relevant Interest Payment Date, such additional interest or
costs shall be due and payable ten (10) days
from receipt of such notice.


 


§4.14.     Guaranties.  The payment and performance of the
Obligations shall be guaranteed by each Guarantor pursuant to the Guaranties,
each of which shall be in the form of Exhibit B
hereto.  The Borrower may, and in
accordance with §6.13, shall, cause additional Subsidiaries of the Borrower to
become Guarantors hereunder by causing such Subsidiary or Subsidiaries to agree
to be bound by the provisions of the Guaranty, to execute and deliver a Joinder
Agreement and to deliver such legal opinions and other documents and
instruments as the Administrative Agent may request.  The Administrative Agent shall, upon the
written request of the Borrower and at the cost and expense of the Borrower,
release any Guarantor from its obligations to the Administrative Agent and the
Lenders under the Guaranty to which such Guarantor is a party in connection
with (a) any sale of all the Capital Stock of such Guarantor to any Person
(other than the Borrower or a Subsidiary of the Borrower) or (b) the
conveyance or transfer of such Guarantor’s property and assets substantially as
an entirety or the merger of such Guarantor with or into any person that, after
giving effect to the transaction, is not a Subsidiary of the Borrower, in each
case, to the extent such transaction is permitted by the Credit Agreement.  In addition, each Guarantor shall be
automatically released from its obligations under the Guaranty if (i) such
Guarantor is not then a guarantor of any of the Borrower’s then outstanding
publicly issued debt securities having a principal amount in excess of
$100,000,000 (or its guarantee thereof is to be released substantially
concurrently with or, upon compliance with provisions of the instruments
governing such securities that shall be satisfied, promptly after, the release
of its obligations under the Guaranty), (ii) such Guarantor is not then a
guarantor of any other then existing credit facility of the Borrower having a
principal amount or committed amount in excess of $100,000,000 (or its
guarantee thereof is to be released substantially concurrently with or, upon
compliance with provisions of each such facility that shall be satisfied,
promptly after, the release of its obligations under the Guaranty), (iii) such
Guarantor is not then a guarantor of any then outstanding commercial paper
issued under any commercial paper program of the Borrower having a principal
amount in excess of $100,000,000 (or its guarantee thereof is to be released
substantially concurrently with or, upon compliance with provisions of such
program that shall be satisfied, promptly after, the release of its obligations
under the Guaranty), (iv) no Default or Event of Default shall have
occurred and be continuing, or would occur as a result thereof, on the date of
such release and (v) the Borrower shall have provided to the
Administrative Agent notice of such release. 
Upon the 


 


53

















 


written
request of the Borrower, the Administrative Agent shall execute any documents
reasonably required in order to acknowledge the release of such Guarantor from
its obligations under the Guaranty. The Borrower shall deliver to the Lenders
an updated Schedule  2 upon the release or addition of any
Guarantor as provided in this §4.14.


 


§4.15.     Cash Collateral.  (a) Certain Credit Support Events.  Upon the request of the Administrative Agent
or any Issuing Bank (i) if such Issuing Bank has honored any full or
partial drawing request under any Letter of Credit and such drawing has
resulted in an Unpaid Reimbursement Obligation, or (ii) if, as of the
Letter of Credit Expiration Date, any Unpaid Reimbursement Obligation for any
reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding amount of all Unpaid Reimbursement
Obligations plus the Maximum Drawing Amount. 
At any time that there shall exist a Defaulting Lender, within three (3) Business
Days after the request of the Administrative Agent or any Issuing Bank with
Fronting Exposure (or, to the extent such request is made by any such Issuing
Bank, within such greater number of Business Days as all the Issuing Banks with
Fronting Exposure and the Administrative Agent, to the extent it has Fronting
Exposure with respect to Swing Line Loans, at such time may agree in their sole
discretion), the Borrower shall deliver to the Administrative Agent Cash
Collateral in an amount sufficient to cover all Fronting Exposure (after giving
effect to §4.16(a)(iv) and any Cash Collateral provided by the Defaulting
Lender).


 


(b)           Grant of Security Interest.  All Cash Collateral (other than credit
support not constituting funds subject to deposit) shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.  The Borrower, and to the extent provided by
any Lender, such Lender, shall grant to (and subjects to the control of) the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Banks and the Lenders, and shall agree to maintain, a first priority security
interest in all such cash, deposit accounts and all balances therein, and all
other property so provided as collateral pursuant hereto, and in all proceeds
of the foregoing, all as security for the obligations to which such Cash
Collateral may be applied pursuant to §4.15(c). 
If at any time the Administrative Agent determines that Cash Collateral
is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is
less than the applicable Fronting Exposure and other obligations secured
thereby, the Borrower or the relevant Defaulting Lender will, promptly upon
demand by the Administrative Agent, pay or provide to the Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate such deficiency.


 


(c)           Application.  Notwithstanding
anything to the contrary contained in this Credit Agreement, Cash Collateral
provided under any of this §4.15 or §§3, 4.16 or 11.2 in respect of Letters of
Credit or Swing Line Loans shall be held and applied to the satisfaction of the
specific Unpaid Reimbursement Obligations, Swing Line Loans, obligations to
fund participations therein (including, as to Cash Collateral provided by a
Defaulting Lender, any interest accrued on such obligation) and other
obligations for which the Cash Collateral was so provided, prior to any other
application of such property as may be provided for herein.


 


(d)           Release.  Cash Collateral (or the appropriate portion
thereof) provided to reduce Fronting Exposure or other obligations shall be released
promptly following (i) the elimination of the applicable Fronting Exposure
or other obligations giving rise thereto 


 


54

















 


(including
by the termination of Defaulting Lender status of the applicable Lender, or, as
appropriate, its assignee following compliance with §17.2) or (ii) the
Administrative Agent’s good faith determination that there exists excess Cash
Collateral; provided, however, (x) that Cash Collateral
furnished by or on behalf of the Borrower or any Guarantor shall not be
released during the continuance of a Default or Event of Default, and (y) the
Person providing Cash Collateral and the applicable Issuing Bank or the
Administrative Agent, as applicable, may agree that Cash Collateral shall not
be released but instead held to support future anticipated Fronting Exposure or
other obligations.


 


§4.16.     Defaulting Lenders.  (a) Adjustments.  Notwithstanding anything to the contrary
contained in this Credit Agreement, if any Lender becomes a Defaulting Lender,
then, until such time as that Lender is no longer a Defaulting Lender, to the
extent permitted by applicable law:


 


(i)            Waivers and Amendments.  Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Credit
Agreement shall be restricted as set forth in §24.


 


(ii)           Reallocation of Payments.  Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to §11
or otherwise, and including any amounts made available to the Administrative
Agent by such Defaulting Lender pursuant to §12), shall be applied at such time
or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing
by such Defaulting Lender to the Administrative Agent, in its capacity as
Administrative Agent, hereunder; second,
to the payment on a pro rata basis of any amounts owing by such Defaulting Lender
to the applicable Issuing Bank or the Administrative Agent, in its capacity as
issuer of Swing Line Loans, hereunder; third,
if so determined by the Administrative Agent or requested by the applicable
Issuing Bank, to be held as Cash Collateral for future funding obligations of
such Defaulting Lender of any participation in any Swing Line Loan or Letter of
Credit; fourth, as the Borrower
may request (so long as no Default or Event of Default exists), to the funding
of any Loan in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Credit Agreement, as determined by the
Administrative Agent; fifth, if
so determined by the Administrative Agent and the Borrower, to be held in a
non-interest bearing deposit account and released in order to satisfy
obligations of such Defaulting Lender to fund Loans under this Credit
Agreement; sixth, to the payment
of any amounts owing to the Borrower, the Lenders, the Issuing Banks or the
Administrative Agent as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, any Issuing Bank or the Administrative
Agent against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Credit Agreement; and seventh, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that
if (x) such payment is a payment of the principal amount of any Loans or
Unpaid Reimbursement Obligation in respect of which such Defaulting Lender has
not fully funded its appropriate share and (y) such Loans or Unpaid
Reimbursement Obligations were made at a time when the conditions set forth in
§10 were satisfied or waived, such payment shall be applied solely to pay the
Loans of, and Unpaid Reimbursement Obligations owed to, all non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans
of, or Unpaid Reimbursement Obligations owed to, such Defaulting Lender.  Any payments, 


 


55

















 


prepayments
or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this §4.16(a)(ii) shall be deemed paid to and redirected by
such Defaulting Lender, and each Lender irrevocably consents hereto.


 


(iii)          Certain Fees.  Such Defaulting Lender (x) shall be
entitled to receive any Facility Fee pursuant to §4.2 for any period during
which such Lender is a Defaulting Lender only to extent allocable to the sum of
(1) the outstanding amount of the Loans funded by it and (2) its
Commitment Percentage of the stated amount of Letters of Credit and Swing Line
Loans for which it has provided Cash Collateral pursuant to §§2.10, 3, 4.15, or
4.16(a)(ii), as applicable (and the Borrower shall (A) be required to pay
to each of the applicable Issuing Bank and the Administrative Agent, as
applicable, the amount of such fee allocable to its Fronting Exposure arising
from such Defaulting Lender and (B) not be required to pay the remaining
amount of such fee that otherwise would have been required to have been paid to
such Defaulting Lender) and (y) shall be limited in its right to receive
Letter of Credit Fees as provided in §3.9.


 


(iv)          Reallocation of Commitment Percentages to Reduce Fronting
Exposure.  During any period in which there is a
Defaulting Lender, for purposes of computing the amount of the obligation of
each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit or Swing Line Loans pursuant to §§2.10 and 3, or to advance
Loans in respect of Unreimbursed Amounts under §3.3(b) or unreimbursed
Swing Line Loans under §2.10.5, the “Commitment Percentage” of each
non-Defaulting Lender shall be computed without giving effect to the Commitment
of such Defaulting Lender; provided, that, (i) each such
reallocation shall be given effect only if, at the date the applicable Lender
becomes a Defaulting Lender, no Default or Event of Default exists; provided
that, on any date thereafter during such period, to the extent such Default or
Event of Default has been cured or waived, such reallocation shall occur at
such later date; and (ii) the aggregate obligation of each non-Defaulting
Lender to acquire, refinance or fund participations in Letters of Credit and
Swing Line Loans, or to advance such Loans, as the case may be, shall not
exceed the positive difference, if any, of (1) the Commitment of such
non-Defaulting Lender minus (2) the aggregate outstanding amount of the
Loans of such Lender.


 


(b)           Defaulting Lender Cure.  If the Borrower, the Administrative Agent and
the Issuing Banks agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Administrative
Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any Cash Collateral), such Lender
will, to the extent applicable, purchase that portion of outstanding Loans of
the other Lenders or take such other actions as the Administrative Agent may
determine to be necessary to cause the Loans and funded and unfunded
participations in Letters of Credit and Swing Line Loans to be held on a pro rata
basis by the Lenders in accordance with their Commitment Percentages (without
giving effect to §4.16(a)(iv)), whereupon such Lender will cease to be a
Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of
the Borrower while such Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties,
no change hereunder from Defaulting Lender to Lender will constitute a waiver 


 


56

















 


or release
of any claim of any party hereunder arising from such Lender’s having been a
Defaulting Lender.


 


§5.          REPRESENTATIONS AND WARRANTIES.


 


The Borrower represents and warrants to the Lenders
and the Administrative Agent as follows:


 


§5.1.       Corporate Authority.


 


§5.1.1.    Incorporation; Good Standing.  The Borrower and each Guarantor (a) is a
corporation (or similar business entity) or, as the case may be, a
Massachusetts Business Trust duly organized, validly existing and in good
standing under the laws of its state of incorporation or organization, (b) has
all requisite corporate (or the equivalent company) or, as the case may be,
trust power to own its property and conduct its business as now conducted and
as presently contemplated, and (c) is in good standing as a foreign
corporation (or similar business entity) and is duly authorized to do business
in each jurisdiction where such qualification is necessary except where a
failure to be so qualified would not have a materially adverse effect on the
business, assets or financial condition of the Borrower.


 


§5.1.2.    Authorization.  The execution, delivery and performance of
this Credit Agreement and the other Loan Documents by the Borrower and each
Guarantor which is or is to become a party thereto, and the transactions
contemplated hereby and thereby (a) are within the corporate (or the
equivalent company) or, as the case may be, trust authority of such Person, (b) have
been duly authorized by all necessary corporate (or the equivalent company) or,
as the case may be, trust proceedings, (c) do not conflict with or result
in any breach or contravention of any provision of law, statute, rule or
regulation to which such Person is subject which would have a material adverse
effect on the Borrower and its Subsidiaries taken as a whole or on the ability
of such Person to fulfill its obligations under this Credit Agreement and the
other Loan Documents to which it is a party, (d) do not in any material
respect conflict with or result in any breach or contravention of any judgment,
order, writ, injunction, license or permit applicable to the Borrower or any
Guarantor and (e) do not conflict with any provision of the corporate
charter or bylaws (or similar constitutive documents) or, as the case may be,
the Agreement and Declaration of Trust of, or any agreement or other instrument
binding upon, the Borrower or any Guarantor.


 


§5.1.3.    Enforceability.  The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any Guarantor
is or is to become a party will result in valid and legally binding obligations
of such Person enforceable against it in accordance with the respective terms
and provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors’ rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.


 


§5.2.       Governmental Approvals.  The execution, delivery and performance by
the Borrower and the Guarantors of this Credit Agreement and the other Loan
Documents to which 


 


57

















 


the
Borrower or any Guarantor is or is to become a party and the transactions
contemplated hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained.


 


§5.3.       Title to Properties; Leases.  Except as indicated on Schedule  5.3
hereto, the Borrower and its Subsidiaries own all of the assets reflected in
the consolidated balance sheet of the Borrower as at the Balance Sheet Date or
acquired since that date (except property and assets sold or otherwise disposed
of in the ordinary course of business since that date), subject to no
mortgages, leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.


 


§5.4.       Financial Statements; Fiscal Year.  (a) There has been furnished to each of
the Lenders an audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and consolidated statements of
income and cash flow of the Borrower and its Subsidiaries for the fiscal year
then ended, certified by Ernst & Young LLP.  Such balance sheet and statements of income
and cash flows have been prepared in accordance with GAAP and fairly present
the financial condition of the Borrower and its Subsidiaries as at the close of
business on the date thereof and the results of operations for the fiscal year
then ended.  There are no contingent
liabilities of the Borrower or any of its Subsidiaries as of such date
involving material amounts, known to the officers of the Borrower, which were
not disclosed in such balance sheet and the notes related thereto.


 


(b)           There has been furnished to each of the Lenders an unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at July 31,
2010, and unaudited consolidated statements of income and cash flow of the
Borrower and its Subsidiaries for the fiscal quarter then ended.  Such balance sheet and statements of income
and cash flows have been prepared in accordance with GAAP and fairly present
the financial condition of the Borrower and its Subsidiaries as at the close of
business on the date thereof and the results of operations for the fiscal
quarter then ended (subject to year-end adjustments).  There are no contingent liabilities of the
Borrower or any of its Subsidiaries as of such date involving material amounts,
known to the officers of the Borrower, which were not disclosed in such balance
sheet and the notes related thereto.


 


(c)           The Borrower has a fiscal year which is the 52/53 week
period ending on the Saturday closest to January 31st of each year.


 


§5.5.       No Material Changes, Etc.  Since the Balance Sheet Date there has
occurred no change in the operations, business, properties, assets or financial
condition of the Borrower and its Subsidiaries as shown on or reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, or the consolidated statements of income and cash flows for
the fiscal year then ended, other than changes in the ordinary course of
business that have not had any materially adverse effect either individually or
in the aggregate on the business, assets or financial condition of the Borrower
and its Subsidiaries taken as a whole. 
Since the Balance Sheet Date, the Borrower has not made any
Distributions except Distributions made in compliance with §7.4 hereof.


 


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§5.6.       Franchises, Patents, Copyrights, Etc.  The
Borrower and each of its Subsidiaries possesses all franchises, patents,
copyrights, trademarks, trade names, licenses and permits, and has rights in
respect of the foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with any rights of
others, except to the extent such conflict would not materially adversely
affect the properties, assets, financial condition or business of the Borrower
and its Subsidiaries taken as a whole.


 


§5.7.       Litigation.  Except as set forth in Schedule  5.7
hereto, there are no actions, suits, proceedings or investigations of any kind
pending or, to the best of the Borrower’s knowledge, threatened against the
Borrower or any of its Subsidiaries before any court, tribunal or
administrative agency or board that, either in any case or in the aggregate,
would be reasonably likely to (i) materially adversely affect the
properties, assets, financial condition or business of the Borrower and its
Subsidiaries taken as a whole, (ii) materially impair the right of the
Borrower and each of its Subsidiaries to carry on business substantially as now
conducted by it, (iii) result in any substantial liability not adequately
covered by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower and its Subsidiaries or (iv) have
a reasonable likelihood of success in adversely impacting the validity of
material provisions of this Credit Agreement or any of the other Loan
Documents, or any material rights or remedies of the Administrative Agent or
Lenders hereunder or thereunder.


 


§5.8.       Compliance with Other Instruments, Laws, Etc.  Neither the
Borrower nor any of its Subsidiaries is in violation of any provision of its
charter documents, bylaws (or equivalent constitutive documents), or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that would reasonably be
expected to materially and adversely affect the financial condition, properties
or business of the Borrower and its Subsidiaries taken as a whole.


 


§5.9.       No Event of Default.  No Default or Event of Default has occurred
and is continuing.


 


§5.10.     Investment Company Act.  Neither the Borrower nor any of its
Subsidiaries is, or is required to be registered as, an “investment company”, as such term is defined in the Investment
Company Act of 1940.


 


§5.11.     Employee Benefit Plans.  (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, all Applicable
Pension Legislation, the Code and other Federal or state laws.  Each Pension Plan that is intended to be a qualified
plan under §401(a) of the Code has received a favorable determination
letter from the Internal Revenue Service to the effect that the form of such
Plan is qualified under §401(a) of the Code and the trust related thereto
has been determined by the Internal Revenue Service to be exempt from federal
income tax under §501(a) of the Code, or an application for such a letter
is currently being processed by the Internal Revenue Service.  To the knowledge of the Borrower, nothing has
occurred that would prevent or cause the loss of such tax-qualified status.


 


(b)           There are no pending or, to the knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any governmental
authority, with respect to any Plan that 


 


59

















 


could
reasonably be expected to have a material adverse effect on the business,
assets or financial condition of the Borrower and its Subsidiaries, taken as a
whole.  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 on the business, assets or financial condition of
the Borrower and its Subsidiaries, taken as a whole.


 


(c)           (i)            No
ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate has
knowledge of any fact, event or circumstance that could reasonably be expected
to constitute or result in an ERISA Event with respect to any Pension Plan
which would reasonably be expected to result in a material adverse effect on
the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole; (ii) the Borrower and each ERISA Affiliate
has met in material respects all applicable requirements under the Pension Funding
Rules in respect of each Pension Plan, and no waiver of the minimum
funding standards under the Pension Funding Rules has been applied for or
obtained; (iii) as of the most recent valuation date for any Pension Plan,
the funding target attainment percentage (as defined in §430(d)(2) of the
Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows
of any facts or circumstances that could reasonably be expected to cause the
funding target attainment percentage for any such plan to drop below 60% as of
the most recent valuation date; (iv) neither the Borrower nor any ERISA
Affiliate has incurred any liability to the PBGC other than for the payment of
premiums, and there are no premium payments which have become due that are
unpaid; and (v) neither the Borrower nor any ERISA Affiliate has engaged
in a transaction that could be subject to §4069 or §4212(c) of ERISA.


 


(d)           Neither the Borrower nor any ERISA Affiliate maintains or
contributes to, or has any unsatisfied obligation to contribute to, or
liability under, any active or terminated Pension Plan other than on the
Closing Date, those listed on Schedule  5.11 hereto.


 


(e)           With respect to each scheme or arrangement mandated by a
government other than the United States (a “Foreign  Government  Scheme
or  Arrangement”) and with respect to each employee defined
benefit pension plan maintained or contributed to by the Borrower or any if its
Subsidiaries that is not subject to United States (a “Foreign  Plan”):


 


(i)            any employer and employee contributions required by law or
by the terms of any Foreign Government Scheme or Arrangement or any Foreign
Plan have been made, or, if applicable, accrued, in accordance with normal
accounting practices except where the failure to do so could not reasonably be expected
to have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries, taken as a whole, or otherwise
create a Default or Event of Default hereunder;


 


(ii)           only to the extent required by Applicable Pension
Legislation, the fair market value of the assets of each funded Foreign Plan,
the liability of each insurer for any Foreign Plan funded through insurance or
the book reserve established for any Foreign Plan, together with any accrued
contributions, is sufficient to procure or provide for the accrued benefit
obligations, as of the date hereof, with respect to all current and former
participants in such Foreign Plan according to the actuarial assumptions and
valuations most recently used to account for such obligations in accordance
with applicable generally accepted accounting principles and in accordance with
applicable law except where any failure to do so could not


 


60
















 


reasonably
be expected to have a material adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries taken as a whole; and


 


(iii)          each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable regulatory
authorities except where the failure to do so could not reasonably be expected
to have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries, taken as a whole, or otherwise
create a Default or Event of Default hereunder.


 


§5.12.     Regulations U and X, Etc.  The proceeds of the Revolving Credit Loans
shall be used for the purposes described in §6.11 hereof.  No portion of any Revolving Credit Loan is to
be used for the purpose of purchasing or carrying any “margin security” or “margin stock”
(as such terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224 (the “Margin Regulations”)) in violation of the Margin Regulations.


 


§5.13.     Environmental Compliance.  The Borrower has taken all reasonably
necessary steps to investigate the past and present condition and usage of the
Real Estate and the operations conducted thereon and, based upon such diligent
investigation, has determined that:


 


(a)           none of the Borrower, its Subsidiaries nor any operator of
the Real Estate or any operations thereon is in violation, or alleged
violation, of any Environmental Laws, which violation would have a material
adverse effect on the business, assets or financial condition of the Borrower
and its Subsidiaries taken as a whole;


 


(b)           neither the Borrower nor any of its Subsidiaries has
received any Environmental Notice during the last five (5) years that has
the potential to materially affect the assets, liabilities, financial condition
or operations of the Borrower and its Subsidiaries taken as a whole, except as
set forth on Schedule 5.13 hereto;


 


(c)           except as set forth on Schedule  5.13 attached
hereto: (i) no portion of the Real Estate has been used for the handling,
processing, storage or disposal of Hazardous Substances; and no underground
tank or other underground storage receptacle for Hazardous Substances is
located on any portion of the Real Estate; in each case except in accordance
with applicable Environmental Laws the noncompliance with which would have a
material adverse effect on the business, assets or financial condition of the
Borrower and its Subsidiaries, taken as a whole; (ii) in the course of any
activities conducted by the Borrower or operators of its properties, no
Hazardous Substances have been generated or are being used on the Real Estate
except in accordance with applicable Environmental Laws the noncompliance with
which would have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries, taken as a whole; (iii) there
have been no releases or threatened releases of Hazardous Substances on, upon,
into or from the properties of the Borrower or any of its Subsidiaries, which
releases would have a material adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries, taken as a whole; (iv) to
the best of the Borrower’s knowledge, there have been no releases on, upon,
from or into any real property in the vicinity of any of the Real Estate which,
through soil or groundwater contamination, may have come to be located on the
Real Estate and which would have a material adverse effect on 


 


61

















 


the
Borrower and its Subsidiaries, taken as a whole; and (v) in addition, any
Hazardous Substances that have been generated on any of the Real Estate have,
to the best of the Borrower’s knowledge, been transported offsite only as required
under and in compliance with applicable Environmental Laws.


 


§5.14.     Foreign Assets Control Regulations, Etc.  None of the
requesting or borrowing of the Loans, the requesting or issuance, extension or
renewal of any Letters of Credit or the use of the proceeds of any thereof will
violate the Trading With the Enemy Act (50 U.S.C. §1 et seq., as amended) (the “Trading With the Enemy Act”) or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) (the “Foreign
Assets Control Regulations”) or any enabling legislation or executive order
relating thereto (which for the avoidance of doubt shall include, but shall not
be limited to (a) Executive Order 13224 of September 21, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the “Executive Order”) and (b) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Public Law 107-56)).  Furthermore, neither the Borrower nor any of
its Subsidiaries or, to Borrower’s knowledge, other Affiliates (a) is or
will become a “blocked person” as described in the Executive Order, the Trading
With the Enemy Act or the Foreign Assets Control Regulations or (b) engages
or will engage in any dealings or transactions, or be otherwise associated,
with any such “blocked person”.


 


§5.15.     Subsidiaries, Etc.  As of the Closing Date, other than those
Subsidiaries of the Borrower described on Schedule
5.15(a) attached hereto, the Borrower has no other Subsidiaries.  As of the Closing Date, except as set forth
on Schedule  5.15(b) attached hereto, neither the Borrower
nor any Subsidiary of the Borrower is engaged in any joint venture or
partnership with any other Person.


 


§5.16.     Taxpayer Identification Numbers.  The true and
correct U.S. taxpayer identification number of the Borrower and each Guarantor
is set forth on Schedule  5.16.


 


§6.          AFFIRMATIVE COVENANTS OF THE BORROWER.


 


The Borrower covenants and agrees that, so long as any
Loan or Letter of Credit is outstanding or any Lender has any obligation to
make any Loans or any Issuing Bank has any obligation to issue, extend or renew
any Letters of Credit:


 


§6.1.       Punctual Payment.  The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans, the Facility Fee, the
Letter of Credit Fees, the fees provided for in the Fee Letter, and all other
fees and other amounts provided for in this Credit Agreement and the other Loan
Documents to which the Borrower is a party, all in accordance with the terms of
this Credit Agreement and such other Loan Documents.


 


§6.2.       Maintenance of Office.  The Borrower will maintain its chief executive
office in Framingham, Massachusetts, or at such other place in the United
States of America as the Borrower shall designate upon written notice to the
Administrative Agent, where notices, 


 


62

















 


presentations
and demands to or upon the Borrower in respect of the Loan Documents to which
the Borrower is a party may be given or made.


 


§6.3.       Records and Accounts.  The Borrower will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of
account in which full, true and correct entries will be made in accordance with
GAAP and (b) maintain adequate accounts and reserves for all taxes,
depreciation, depletion, obsolescence and amortization of its properties and
the properties of its Subsidiaries, contingencies, and other reserves.


 


§6.4.       Financial Statements, Certificates and Information.  The Borrower will
deliver to the Administrative Agent (and the Administrative Agent will
promptly, after receipt thereof, deliver to the Lenders):


 


(a)           as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year (or, if earlier, within
fifteen (15) days after the date required to be filed with the Securities and
Exchange Commission without giving effect to extensions) of the Borrower, (i) the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such year, and the related consolidated statement of income and consolidated
statement of cash flow for such year, each setting forth in comparative form
the figures for the previous fiscal year and all such consolidated statements
to be in reasonable detail, prepared in accordance with GAAP, and certified
without qualification by Ernst & Young LLP, any nationally recognized
firm of independent certified public accountants or by other independent
certified public accountants reasonably satisfactory to the Administrative
Agent and (ii) a statement certified by the chief financial officer or the
treasurer of the Borrower in substantially the form of Exhibit C
attached hereto (a “Compliance Certificate”)
and setting forth in reasonable detail computations evidencing compliance with
the covenants contained in §8 hereof and (if applicable) reconciliations to
reflect changes in GAAP since the Balance Sheet Date;


 


(b)           as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal quarters
of each fiscal year (or, if earlier, within ten (10) days after the date
required to be filed with the Securities and Exchange Commission without giving
effect to extensions) of the Borrower, (i) copies of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such quarter, and the related consolidated statement of income and
consolidated statement of cash flow for the portion of the Borrower’s fiscal
year then elapsed, all in reasonable detail and prepared in accordance with
GAAP, together with a certification by the chief financial officer or the
treasurer of the Borrower that to the best of the Borrower’s knowledge, the
information contained in such financial statements fairly presents the
financial position of the Borrower and its Subsidiaries on the date thereof
(subject to year-end adjustments) and (ii) a Compliance Certificate as of
such fiscal quarter end;


 


(c)           from time to time such other financial data and information
as the Administrative Agent or any Lender may reasonably request;


 


(d)           (i) promptly upon becoming aware of the occurrence of
any actual or claimed Event of Termination under any Material Securitization
Transaction the result of which would permit (assuming the giving of
appropriate notice if required) the holder or holders thereof 


 


63

















 


or of any
obligations issued thereunder to accelerate the maturity thereof or require the
repurchase of the receivables sold thereunder, notice thereof, which notice
shall describe such Event of Termination and indicate what steps the Borrower
and its Subsidiaries are taking to remedy the same and (ii) promptly upon
request therefor, such other information with respect thereto as the
Administrative Agent shall reasonably request; and


 


(e)           promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Borrower, and copies of all annual, regular, periodic
and special reports and registration statements which the Borrower may file or
be required to file with the Securities Exchange Commission 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.


 


All Confidential Information concerning the Borrower
supplied by the Borrower to the Lenders pursuant to the terms hereof will be
held in confidence by the Lenders and the Lenders shall not disclose such
Confidential Information except as permitted by §25 of this Credit Agreement.


 


Documents required to be delivered pursuant to this
§6.4 (to the extent any such documents are included in materials otherwise
filed with the United States Securities and Exchange Commission) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at
staples.com; or (ii) on which such documents are posted on the Borrower’s
behalf on an Internet or intranet website, if any, to which each Lender, each
Issuing Bank and the Administrative Agent has access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent, any Issuing Bank or any Lender that requests in writing
that the Borrower deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent, such Issuing Bank
or such Lender and (ii) the Borrower shall notify the Administrative Agent
(by telecopier or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents.  The
Administrative Agent shall have no obligation to request the delivery or to
maintain paper copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery, and each Lender and each Issuing Bank shall be
solely responsible for requesting delivery to it or maintaining its copies of
such documents.


 


The Borrower hereby acknowledges that (i) the
Administrative Agent and/or the Co-Lead Arrangers will make available to the
Lenders and the Issuing Banks materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower  Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (ii) 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
Borrower or its securities) (each, a “Public  Lender”); provided,
however, that each Public Lender shall identify at least one employee
who may receive material non-public information with respect to the Borrower or
its securities.  The Borrower hereby
agrees that (A) all Borrower Materials that are to be made 


 


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available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean
that the word “PUBLIC” shall appear prominently on the first page thereof;
(B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed
to have authorized the Administrative Agent, the Co-Lead Arrangers, the Issuing
Banks and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Borrower or its securities
for purposes of United States Federal and state securities laws (provided,
however, (x) to the extent such Borrower Materials constitute Confidential
Information, they shall be treated as set forth in §25 and (y) to the
extent such Borrower Materials are not marked “PUBLIC” and posted on the
Platform, such Borrower Materials will also be subject to the additional
confidentiality provisions included on the Platform); (C) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (D) the Administrative
Agent and the Co-Lead Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Investor” and the Administrative
Agent, the Issuing Banks and the Lenders agree not to trade securities on the
basis of any Borrower Materials that are posted on the Platform and are not
marked “PUBLIC.”  Notwithstanding the
foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC.”


 


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


 


§6.5.       Notices.  The Borrower will
promptly notify the Administrative Agent for the benefit of the Lenders in
writing of the occurrence of any Default or Event of Default.  The Borrower will promptly give notice to the
Administrative Agent for the benefit of the Lenders (a) of any material
violation of any Environmental Law that the Borrower or any of its Subsidiaries
reports in writing or is reportable by such Person in writing (or for which any
written report supplemental to any oral report is made) to any federal, state
or local environmental agency, (b) upon becoming aware thereof, of any
inquiry, proceeding, 


 


65

















 


investigation,
or other action, including a notice from any agency of potential environmental
liability, or any federal, state or local environmental agency or board, that
has the potential to materially affect the assets, liabilities, financial
conditions or operations of the Borrower, (c) upon becoming aware thereof,
of the occurrence of any ERISA Event that could reasonably be expected to have
a material adverse effect on the business, assets or financial conditions of
the Borrower and its Subsidiaries, taken as a whole, (d) of any change in
any Senior Debt Rating, (e) of any material change in accounting policies
or financial reporting practices by the Borrower or any Subsidiary of the
Borrower other than a change in GAAP and (f) of the acquisition or
formation by the Borrower of any Material Subsidiary.  The Borrower will give notice to the
Administrative Agent for the benefit of the Lenders in writing within fifteen
(15) days of becoming aware of any litigation or proceedings threatened in
writing or any pending litigation and proceedings affecting the Borrower or any
of its Subsidiaries or to which the Borrower or any of its Subsidiaries is or
becomes a party involving an uninsured claim against the Borrower or any of its
Subsidiaries that could reasonably be expected to have a materially adverse
effect on the Borrower and its Subsidiaries taken as a whole and stating the
nature and status of such litigation or proceedings.  The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Administrative Agent for the benefit of the
Lenders, in writing, in form and detail satisfactory to the Administrative
Agent, within ten (10) days of any judgment not covered by insurance,
final or otherwise, against the Borrower or any of its Subsidiaries in an
amount in excess of $50,000,000.  The
Administrative Agent will promptly, after receipt thereof, deliver copies of
any notices provided by the Borrower pursuant to this §6.5 to the Lenders.


 


§6.6.       Legal Existence; Maintenance of Properties.  The Borrower will
do or cause to be done all things necessary to preserve and keep in full force
and effect its legal existence, rights and franchises and those of its
Subsidiaries and will not, and will not cause or permit any of the Guarantors
to, convert to a limited liability company or a limited liability partnership
unless simultaneously with such conversion the Borrower or such Guarantor shall
have executed and delivered to the Administrative Agent all documentation which
the Administrative Agent reasonably determines is necessary to continue the
Borrower’s or such Guarantor’s obligations in respect of this Credit Agreement
or the Guaranty, as applicable.  The
Borrower (a) will cause all of its properties and those of its
Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment, (b) will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be necessary
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times, and (c) will, and will cause each
of its Subsidiaries to, continue to engage primarily in the businesses now
conducted by them and in related businesses; provided that nothing in
this §6.6 shall prevent the Borrower from discontinuing the operation and
maintenance of any of its properties or any of those of its Subsidiaries if
such discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its or their business and does not in the aggregate materially
adversely affect the business of the Borrower and its Subsidiaries on a
consolidated basis.


 


§6.7.       Insurance.  The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
(including self-insurance) insurance with respect to its properties and
business against such casualties and contingencies as shall be in 


 


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accordance
with the general practices of businesses engaged in similar activities in
similar geographic areas and in amounts, containing such terms, in such forms
and for such periods as may be reasonable and prudent.  At the request of the Administrative Agent,
the Borrower shall deliver from time to time a summary schedule indicating all
insurance then in force with respect to the Borrower and its Subsidiaries.


 


§6.8.       Taxes.  The Borrower will, and will cause each of its
Subsidiaries to, file all Federal, state and other material tax returns and
reports required to be filed (of which the Borrower has knowledge, in the case
of taxes, other than Federal taxes) and duly pay and discharge, or cause to be
paid and discharged, before the same shall become overdue, all Federal, state
and other material taxes, assessments and other governmental charges (of which
the Borrower has knowledge, in the case of taxes, assessments and other
governmental charges, other than Federal taxes) imposed upon it and its real
properties, sales and activities, or any part thereof, or upon the income or
profits therefrom; provided that any such tax, assessment, charge, levy
or claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided  further that the Borrower and each
Subsidiary of the Borrower will pay all such taxes, assessments, charges,
levies or claims forthwith upon the commencement of proceedings to foreclose
any lien that may have attached as security therefor or shall have obtained
such bonding as may be required to release such lien to the extent that such
lien could reasonably be expected to have a material adverse effect on the
business, assets or financial condition of the Borrower and its Subsidiaries,
taken as a whole.  The Borrower shall not
be in violation of this §6.8 in respect of taxes if, having discovered or
having received notice that a tax filing or tax obligation is or has become
overdue, and the failure to have made such filing or pay such obligation has
not resulted in, or would not reasonably be expected to result in, a material
adverse effect on the business, assets or financial condition of the Borrower
and its Subsidiaries, taken as a whole, it promptly makes such filing and/or
promptly pays or makes provision to pay such obligation.


 


§6.9.       Inspection of Properties and Books, Etc.  The Borrower shall
permit the Lenders, through the Administrative Agent or any of the Lenders’
other designated representatives, no more frequently than once each calendar
year, or more frequently as determined by the Lenders upon the occurrence and
during the continuance of an Event of Default, to visit and inspect any of the
properties of the Borrower or any of its Subsidiaries, and each such
inspection, if no Event of Default has occurred and is continuing, shall be at
the Lenders’ expense.  The Borrower shall
also permit the Lenders, through the Administrative Agent or any of the Lenders’
other designated representatives, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the Borrower
and its Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Administrative
Agent or any Lender may reasonably request. 
The Borrower authorizes (a) the Administrative Agent and, if
accompanied by the Administrative Agent, the Lenders, in each case with
reasonable prior notice to the Borrower, to communicate directly with the
Borrower’s independent certified public accountants, provided that the
Borrower may participate in such communications at its request, and (b) such
accountants to disclose to the Administrative Agent and the Lenders any and all
financial statements and other supporting financial documents and 


 


67

















 


schedules
with respect to the business, financial condition and other affairs of the
Borrower or any of its Subsidiaries.


 


§6.10.     Compliance with Laws, Contracts, Licenses, and Permits.  The Borrower will,
and will cause each of its Subsidiaries to, comply with (a) the applicable
laws and regulations wherever its business is conducted, including all
Environmental Laws, (b) the provisions of its charter documents and
by-laws (or equivalent constitutive documents), (c) all agreements and
instruments by which it or any of its properties may be bound and (d) all
applicable decrees, orders, and judgments, in each case if noncompliance with
which would have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries, taken as a whole, or on the
ability of the Borrower or any of the Guarantors to fulfill its obligations
under this Credit Agreement or any of the other Loan Documents to which such
Person is a party.  If any authorization,
consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower may fulfill any of its obligations hereunder or any of the
other Loan Documents to which the Borrower is a party, the Borrower will, or
(as the case may be) will cause such Subsidiary to, immediately take or cause
to be taken all reasonable steps within the power of the Borrower or such
Subsidiary to obtain such authorization, consent, approval, permit or license
and furnish the Administrative Agent and the Lenders with evidence thereof.


 


§6.11.     Use of Proceeds.  The Borrower will use the proceeds of the
Revolving Credit Loans and the Letters of Credit solely for the repayment of
all amounts under the Existing Credit Agreement and other existing Indebtedness
(unless repayment or prepayment thereof is otherwise prohibited hereunder), and
for working capital and capital expenditures and all other lawful corporate
purposes, including, without limitation, for the payment of dividends permitted
hereunder, for the acquisition of assets and or Capital Stock of Persons in a
reasonably related line of business as the Borrower or any Subsidiary of the
Borrower, for share repurchases, and to provide liquidity in connection with
any commercial paper program of the Borrower, in each case, to the extent
permitted under this Credit Agreement.


 


§6.12.     Licenses and Permits.  The Borrower will maintain and renew any and
all licenses or permits now held or hereafter acquired by the Borrower or any
of its Subsidiaries unless the loss, suspension, revocation or failure to renew
any such licenses or permits would not have a material adverse effect on the
business or financial condition of the Borrower and its Subsidiaries, taken as
a whole.


 


§6.13.     Guaranties.  In the event that any Subsidiary of the
Borrower, which is not a Guarantor hereunder, becomes a guarantor of (a) any
of the Borrower’s publicly issued notes or bonds outstanding from time to time
or (b) any of the Borrower’s private notes, loans or commercial paper
outstanding from time to time, in each case having a principal amount or
commitment amount in excess of $100,000,000, the Borrower shall cause such
Subsidiary to become a Guarantor hereunder pursuant to §4.14.


 


§6.14.     Further Assurances.  The Borrower will, and will cause each of the
Guarantors to, cooperate with the Lenders and the Administrative Agent and
execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request 


 


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to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.


 


§7.          CERTAIN NEGATIVE COVENANTS OF THE BORROWER.


 


The Borrower covenants and agrees that, so long as any
Loan or Letter of Credit is outstanding or any Lender has any obligation to
make any Loans or any Issuing Bank has any obligation to issue, extend or renew
any Letter of Credit:


 


§7.1.       Restrictions on Indebtedness.  The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume, guarantee or become or
remain liable, contingently or otherwise, with respect to Indebtedness other
than:


 


(a)           Indebtedness to the Lenders and the Administrative Agent
arising under any of the Loan Documents;


 


(b)           (i) current liabilities and reserves of the Borrower or
such Subsidiary incurred in the ordinary course of business not incurred
through (x) the borrowing of money, or (y) the obtaining of credit
except for credit on an open account basis customarily extended and in fact
extended in connection with normal purchases of goods and services or (ii) balance
sheet liabilities with respect to pension, retirement or other employee benefit
plans incurred in connection with the operation of the Borrower’s or such
Subsidiary’s business;


 


(c)           Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in
accordance with the provisions of §6.8 hereof;


 


(d)           Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the Borrower or
such Subsidiary shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review;


 


(e)           endorsements for collection, deposit or negotiation, self
insurance obligations and warranties of products or services, in each case
incurred in the ordinary course of business;


 


(f)            Indebtedness in respect of letters of credit and bankers’
acceptances issued in the ordinary course of business;


 


(g)           Indebtedness of the Borrower or any Subsidiary (other than
any Domestic Subsidiary) in respect of Swap Contracts; provided that
such Swap Contracts are (or were) entered into by the Borrower or such
Subsidiary for the purpose of mitigating risks associated with fluctuations in
interest rates, commodity prices or foreign exchange rates and not for
speculative purposes;


 


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(h)           Indebtedness existing on the Closing Date and listed and described
on Schedule 7.1 hereto or any refinancing thereof on
substantially similar terms as the Indebtedness being refinanced;


 


(i)            Subordinated Debt;


 


(j)            obligations under Capitalized Leases;


 


(k)           Indebtedness in respect of intercompany loans, guaranties
and, so long as no Default or Event of Default shall have occurred and be
continuing at the time such Indebtedness is incurred, other Investments and
contingent obligations to make Investments, (i) from the Borrower to any
of its Subsidiaries or of any of its Subsidiaries’ obligations, (ii) between
Subsidiaries of the Borrower or of any of the Borrower’s Subsidiaries’
obligations, or (iii) from any Subsidiary of the Borrower to the Borrower
or of any of the Borrower’s obligations;


 


(l)            Indebtedness incurred in connection with the acquisition
after the Closing Date of any real or personal property by the Borrower or any
Subsidiary of the Borrower as contemplated by §7.2(ix) hereof;


 


(m)          Indebtedness secured by a lien on Real Estate of the
Borrower or its Subsidiaries; provided that the aggregate amount of
Indebtedness permitted pursuant to this §7.1(m) shall not, at any time,
exceed the fair market value of the Real Estate securing such Indebtedness;


 


(n)           other Indebtedness of the Borrower, provided that immediately after such incurrence of Indebtedness, and
after giving effect thereto on a pro forma
basis, no Default or Event of Default shall then exist;


 


(o)           other Indebtedness of the Borrower’s Subsidiaries (whether
or not such Subsidiaries are Guarantors), provided
that immediately after such incurrence of Indebtedness, and after giving effect
thereto on a pro forma basis, no Default or
Event of Default shall then exist, and provided, further, that
the aggregate amount of such Indebtedness (without duplication) of the Domestic
Subsidiaries of the Borrower permitted under this clause (o) shall not
exceed 15% of the Stockholders’ Equity of the Borrower at the time such
Indebtedness is incurred;


 


(p)           Indebtedness consisting of Investments permitted under §7.3(m) hereof;


 


(q)           Indebtedness payable at the election of the Borrower by the
issuance of the Borrower’s Capital Stock;


 


(r)            Indebtedness of any Person that becomes a Subsidiary of the
Borrower after the date hereof in accordance with the terms of §7.6 hereof,
which Indebtedness is existing at the time such Person becomes a Subsidiary of
the Borrower (other than Indebtedness incurred in contemplation of such Person’s
becoming a Subsidiary of the Borrower);


 


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(s)           Indebtedness of the Borrower and its Subsidiaries in respect
of Securitization Transactions; provided that, the aggregate amount of
all such Indebtedness shall not exceed $300,000,000 outstanding at any time;
and


 


(t)            Indebtedness of Subsidiaries that are Guarantors under any
guaranties of any other Indebtedness of the Borrower.


 


§7.2.       Restrictions on Liens.  The Borrower will not, and will not permit
any of its Subsidiaries to, (a) create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (b) transfer any of such property or assets
or the income or profits therefrom for the purpose of subjecting the same to
the payment of Indebtedness or performance of any other obligation in priority
to payment of its general creditors; (c) acquire any property or assets
upon conditional sale or other title retention or purchase money security
agreement, device or arrangement; or (d) sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles, chattel paper or
instruments, with or without recourse; provided that the Borrower and
any Subsidiary of the Borrower may create or incur or suffer to be created or
incurred or to exist:


 


(i)            liens in favor of the Borrower on all or part of the assets
of Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries of
the Borrower to the Borrower;


 


(ii)           liens to secure taxes, assessments and other government
charges and liens to secure claims for labor, material or supplies, in each
case in respect of obligations not overdue or which are being contested in good
faith and by appropriate proceedings and for which the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto;


 


(iii)          deposits or pledges made in connection with, or to secure
payment of, worker’s compensation, unemployment insurance, old age pensions or
other social security obligations;


 


(iv)          liens in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower or such
Subsidiary is at the time in good faith prosecuting an appeal and in respect of
which a stay of execution shall have been obtained pending such appeal or shall
have obtained an unsecured bond sufficient to release such lien;


 


(v)           liens of carriers, warehousemen, mechanics and materialmen,
and other like liens, in respect of obligations not overdue or, if such
obligations are overdue, being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary shall have set aside
on its books adequate reserves with respect thereto, provided that no
proceeding to foreclose any such lien shall have been commenced;


 


(vi)          encumbrances on Real Estate consisting of easements, rights
of way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in 


 


71

















 


the title
thereto, landlord’s or lessor’s liens under Capitalized Leases to which the
Borrower or a Subsidiary of the Borrower is a party, and other minor liens or
encumbrances none of which in the opinion of the Borrower interferes materially
with the use of the property affected in the ordinary conduct of the business
of the Borrower and its Subsidiaries, which defects do not individually or in
the aggregate have a materially adverse effect on the business of the Borrower
individually or of the Borrower and its Subsidiaries on a consolidated basis;


 


(vii)         liens existing on the Closing Date and listed on Schedule
7.2 attached hereto or liens on the same assets in connection with the
refinancing of such existing liens;


 


(viii)        liens arising in the ordinary course of business of the
Borrower or a Subsidiary of the Borrower none of which in the opinion of the
Borrower interferes materially with the use of the property affected in the
ordinary course of business of the Borrower and its Subsidiaries and which do
not, individually or in the aggregate, have a materially adverse effect on the
business of the Borrower or such Subsidiary individually or of the Borrower and
its Subsidiaries on a consolidated basis;


 


(ix)           (A) purchase money security interests in or purchase
money mortgages on real or personal property to secure purchase money
Indebtedness of the type permitted by §7.1(l) hereof, incurred in
connection with the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired; or (B) the
owner’s interest in consigned inventory and other goods sold or to be sold by
the Borrower or any of its Subsidiaries;


 


(x)            liens on accounts receivable of the Borrower and/or its
Subsidiaries that are the subject of and secure the Indebtedness permitted
under §7.1(s);


 


(xi)           liens securing other permitted Indebtedness that does not
exceed $50,000,000 in the aggregate;


 


(xii)          liens in respect of the interests of lessors under
Capitalized Leases;


 


(xiii)         liens on Real Estate securing Indebtedness permitted under
§7.1(m) hereof; and


 


(xiv)        liens on property of a Person
existing at the time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the
Borrower; provided that (A) such liens were not created in
contemplation of such merger, consolidation or Investment, (B) such liens
do not extend to any assets other than those of the Person merged into or
consolidated with the Borrower or such Subsidiary or acquired by the Borrower
or such Subsidiary, (C) such liens are not expanded to secure any assets
other than the type of assets that were subject to such liens prior to such
merger, consolidation or Investment and (D) the applicable Indebtedness
secured by such lien is permitted under §7.1(r).


 


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§7.3.       Restrictions on Investments.  The Borrower will not, and will not permit
any of its Subsidiaries to, make or permit to exist or to remain outstanding
any Investment except Investments in:


 


(a)           marketable direct or guaranteed obligations of the United
States of America or any country which is a member of the Organization for
Economic Cooperation and Development (the “OECD”);


 


(b)           demand deposits, certificates of deposit, bankers
acceptances and time deposits of (i) United States or Canadian banks
having total assets in excess of $1,000,000,000 or (ii) a commercial bank
organized under the laws of any other country which is a member of the OECD, or
a political subdivision of such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which its is organized or another country which is a
member of the OECD;


 


(c)           (i) securities commonly known as “commercial paper”
denominated in Dollars or any Alternative Currency which at the time of purchase
have been rated and the ratings for which are not less than “P 1” if rated
by Moody’s, and not less than “A 1” if rated by S&P; and (ii) securities
commonly known as “short-term bank notes” issued by any Lender denominated in
Dollars or any Alternative Currency which at the time of purchase have been
rated and the ratings for which are not less than “P 2” if rated by Moody’s,
and not less than “A 2” if rated by S&P;


 


(d)           Investments existing on the Closing Date and listed on Schedule 7.3
attached hereto;


 


(e)           Investments with respect to Indebtedness permitted by §7.1(k) hereof
so long as such entities remain Subsidiaries of the Borrower;


 


(f)            taxable or tax-exempt securities which at the time of
purchase have been rated and the ratings for which are not less than A 3
if rated by Moody’s, and not less than A- if rated by S&P;


 


(g)           Investments consisting of loans and advances to employees of
the Borrower or any Subsidiary of the Borrower, not exceeding $10,000,000 in
the aggregate at any one time outstanding;


 


(h)           options to invest in or to lease real property to be used in
the operations of the Borrower or any Subsidiary of the Borrower;


 


(i)            guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions effected in the ordinary course
of business;


 


(j)            (i) the Borrower’s or any Subsidiary’s guaranty of the
Indebtedness of any Subsidiary or the Borrower, and (ii) any other
Investments by the Borrower or any Subsidiary of the Borrower in any Subsidiary
of the Borrower or the Borrower;


 


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(k)           Investments by the Borrower or any Subsidiary of the
Borrower to acquire a more than fifty percent (50%) equity interest in any
Person, provided that such acquisition is permitted under §7.6 hereof;


 


(l)            Investments by the Borrower or any Subsidiary of the
Borrower to acquire up to and including a fifty percent (50%) equity interest
in another Person, provided that (i) such Person is in line(s) of
business reasonably related to the line(s) of business of the Borrower or
its Subsidiaries, as applicable and (ii) the aggregate amount of (A) such
Investments in such Person and (B) existing Investments made by the
Borrower or any Subsidiary of the Borrower pursuant to this §7.3(l) shall
at no time exceed 65% of the Stockholders’ Equity of the Borrower;


 


(m)          Investments consisting of Distributions permitted by §7.4;


 


(n)           Investments consisting of loans and advances to, guaranties
of the obligations of and equity Investments in, Persons in a related line of
business as the Borrower, not exceeding $25,000,000 in the aggregate at any one
time outstanding;


 


(o)           shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) (b), (c) and
(f) contained in this §7.3; and


 


(p)           shares of money market mutual or similar funds which have an
Aaa or MR1+ money market fund rating from Moody’s or an AAA money market fund
rating from S&P.


 


§7.4.       Distributions.  The Borrower will not declare any dividend or
make any Distribution if any Default or Event of Default has occurred and is
continuing or would result after giving effect to such Distribution.


 


§7.5.       [Intentionally Omitted.]


 


§7.6.       Merger and Consolidation; Acquisitions.  The Borrower will
not, and will not permit any of its Subsidiaries to, merge or consolidate with
any other Person; enter into any stock or asset acquisitions (other than the
acquisition of assets in the ordinary course of such Person’s business and
other than the acquisition of stock permitted under §§7.3(k) or 7.3(l) hereof);
enter into any joint venture or partnerships (except to the extent permitted
under §7.3 hereof); or enter into any new lines of business or otherwise change
the conduct of the Borrower’s or such Subsidiary’s business as presently
conducted other than the business of selling office services, products and/or
supplies or a line of business reasonably related thereto other than (a) the
merger or consolidation of one or more Subsidiaries of the Borrower with and into
the Borrower, provided that the Borrower is the surviving entity, (b) the
merger or consolidation of two or more Subsidiaries of the Borrower, provided
that, if one of the Subsidiaries is a Guarantor, that the Guarantor is the
surviving entity, or (c) the acquisition (whether of stock or assets or by
means of a merger) of (i) a more than fifty percent (50%) equity interest
in any other Person or (ii) assets of any other Person; provided
that (A) immediately after such acquisition, and after giving effect
thereto on a pro forma basis, no Default or Event of Default shall then exist, (B) if
required by applicable law, the board of directors and the shareholders or the
equivalent, of such other Person has approved such acquisition, (C) such
other Person is in the business of selling office services, products and/or
supplies or a line of business reasonably related thereto, 


 


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and
(D) if the Borrower or a Guarantor and such other Person merge, the
Borrower or such Guarantor is the surviving entity.


 


§7.7.       Disposition of Assets and Sale-Leaseback Transactions.  The Borrower will
not, and will not permit any of its Subsidiaries to, dispose of or sell assets
other than:


 


(a)           the disposition of assets in the ordinary course of
business;


 


(b)           sale-leaseback transactions and other dispositions of assets
that do not have a materially adverse effect on the business, assets or
financial condition of the Borrower or any of its Subsidiaries, provided
that (i) the aggregate net book value of the assets to be sold plus the
net book value of all other assets of the Borrower and its Subsidiaries sold
under this clause (b) during the period of time from the Closing Date
through the date of such sale does not, at the time of such sale, exceed 25% of
the Consolidated Total Assets of the Borrower and its Subsidiaries, and (ii) such
assets are sold in an arm’s length transaction for fair market value (after
giving effect to all tax benefits, if any, associated with such sale); and


 


(c)           the sale of accounts receivable of the Borrower and/or its
Subsidiaries pursuant to any Permitted Securitization Transaction.


 


§7.8.       Subordinated Debt.  The Borrower will not effect or permit any
change in or amendment to any document or instrument pertaining to the
subordination, covenants, events of default, terms of payment or required
prepayments of any Subordinated Debt, give any notice of redemption or
prepayment or offer to repurchase under any such document or instrument or,
directly or indirectly, make any payment of principal of or interest on or in
redemption, retirement or repurchase of any Subordinated Debt, except that (a) the
Borrower may make regularly scheduled payments when required by the terms of
the Subordinated Debt, and (b) the Borrower may refinance all or a portion
of the Subordinated Debt so long as such refinancing Subordinated Debt (i) has
a maturity that is no earlier than the Subordinated Debt being refinanced and (ii) is
subordinated to the Obligations on terms at least as favorable to the
Administrative Agent and the Lenders, in the opinion of the Administrative
Agent and the Required Lenders, as the Subordinated Debt being refinanced.


 


§7.9.       Transactions with Affiliates.  The Borrower will
not, and will not permit any of its Subsidiaries to, enter into any transaction
of any kind with any Affiliate of the Borrower (excluding transactions between
the Borrower and any of its Subsidiaries and transactions between any
Subsidiary of the Borrower and any other Subsidiary of the Borrower), whether
or not in the ordinary course of business, other than on fair and reasonable
terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate.


 


§8.          FINANCIAL COVENANTS OF THE BORROWER.


 


The Borrower covenants and agrees that, so long as any
Loan or Letter of Credit is outstanding or any Lender has any obligation to
make any Loans or any Issuing Bank has any obligation to issue, extend or renew
any Letter of Credit:


 


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§8.1.       Fixed Charge Coverage Ratio.  As at the end of each fiscal quarter of the
Borrower, the Borrower will not permit the ratio (the “Fixed Charge Coverage Ratio”) of (a) the sum of (i) Consolidated
EBIT for the period of the four consecutive fiscal quarters (the “Measurement Period”) ending on such date plus (ii) the
Rental Expense for such Measurement Period, to (b) the sum of (i) the
Consolidated Total Interest Expense for such Measurement Period plus (ii) the
Rental Expense for such Measurement Period, to be less than 1.50 to 1.


 


§8.2.       Adjusted Funded Debt to Total Capitalization Ratio.  As at the end of
each fiscal quarter of the Borrower, the Borrower will not permit the ratio of (a) Consolidated
Adjusted Funded Debt as at such date to (b) the sum of (i) Consolidated
Adjusted Funded Debt as at such date plus (ii) Stockholders’ Equity as of
such date, to be greater than 0.75 to 1.


 


§9.          CLOSING CONDITIONS.


 


The obligations of the Lenders to make the initial
Loans and any Issuing Bank to issue any Letters of Credit on the Closing Date
shall be subject to the satisfaction of the following conditions precedent:


 


§9.1.       Loan Documents.  Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to each of the
Lenders.  The Administrative Agent shall
have received a fully executed counterpart of each such document.


 


§9.2.       Certified Copies of Charter Documents.  The Administrative
Agent shall have received from the Borrower and each of the Guarantors a copy,
certified by a duly authorized officer of such Person to be true and complete
on the Closing Date, of each of (a) its charter or other incorporation
documents (or the equivalent constitutive documents), certified as of a recent
date by the Secretary of State of the applicable jurisdiction of incorporation.
as in effect on such date of certification, (b) its by-laws or the
equivalent constitutive documents as in effect on such date and (c) evidence
that such Borrower or Guarantor is validly existing and in good standing and
qualified to engage in business in its state of incorporation or formation and,
to the extent requested by the Administrative Agent, each other jurisdiction
where its ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that failure to do
so could not reasonably be expected to have a material adverse change in the
business, operations, liabilities (actual or contingent) assets, properties or
condition of the Borrower and its Subsidiaries, taken as a whole.


 


§9.3.       Corporate Action.  All corporate (or other) action necessary for
the valid execution, delivery and performance by the Borrower and each of the
Guarantors of this Credit Agreement and the other Loan Documents to which it is
or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Lenders shall have been provided to the
Administrative Agent.


 


§9.4.       Incumbency Certificate.  The Administrative Agent shall have received
from the Borrower and each of the Guarantors an incumbency certificate, dated
as of the Closing Date, signed by a duly authorized officer of the Borrower and
each Guarantor, as applicable, and giving the name and bearing a specimen
signature of each individual who shall be 


 


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authorized:
(a) to sign, in the name and to the benefit of each of the Borrower and
the Guarantors, each of the Loan Documents; (b) with respect to the
Borrower, to make Loan Requests, Conversion Requests and Swing Line Loan
Requests; and (c) to give notices and to take other action on its behalf
under the Loan Documents.


 


§9.5.       Opinion of Counsel.  The Administrative Agent shall have received
favorable legal opinions addressed to the Lenders and the Administrative Agent,
dated as of the Closing Date, in form and substance satisfactory to the Lenders
and the Administrative Agent, from (a) Kristin A. Campbell, Esq.,
general counsel to the Borrower and the Guarantors and (b) Wilmer Cutler
Pickering Hale and Dorr LLP, special counsel to the Borrower and the
Guarantors.


 


§9.6.       Payment of Fees.  The Borrower shall have paid to the
Administrative Agent and the Co-Lead Arrangers, as appropriate, the fees set
forth in the Fee Letter, closing fees and all other fees and expenses
(including without limitation all reasonable legal fees and disbursements of
the Administrative Agent’s Special Counsel) required to be paid by it on or
prior to the Closing Date.


 


§9.7.       Existing Credit Agreement.  All amounts outstanding under the Existing
Credit Agreement shall have been paid in full, all commitments thereunder of
the lenders thereunder who are not parties to this Credit Agreement shall have
been terminated and all commitments thereunder of the Lenders party to this
Credit Agreement shall be evidenced only by this Credit Agreement.


 


§9.8.       Compliance Certificate.  The Borrower shall have delivered to the
Lenders a Compliance Certificate based on the financial statements of the
Borrower for the fiscal quarter ended July 31, 2010.


 


§9.9.       UCC Search Results.  The Administrative Agent shall have received
the results of UCC searches (and the equivalent thereof in all applicable
foreign jurisdictions), indicating no liens other than Permitted Liens and
otherwise in form and substance satisfactory to the Administrative Agent.


 


§9.10.     Certificate of Insurance.  The Administrative Agent shall have received
evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect.


 


§9.11.     Closing Certificate.  The Administrative Agent shall have received
a certificate of a duly authorized officer of the Borrower (a) stating
that no consents, licenses or approvals are required in connection with the
execution, delivery and performance by, and the validity against, the Borrower
or any Guarantor, of the Loan Documents, except as have been obtained, and (b) certifying
that (i) the conditions specified in §10.1 have been satisfied and (ii) there
has been no event or circumstance since the Balance Sheet Date that has had or
could be reasonably expected to have, either individually or in the aggregate,
a material adverse change in the business, operations, liabilities (actual or
contingent) assets, properties or condition of the Borrower or its
Subsidiaries.


 


Without limiting the generality of
the provisions of the last paragraph of §13.3, for purposes of determining
compliance with the conditions specified in this §9, each Lender that 


 


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has signed this Credit Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing
Date specifying its objection thereto.


 


§10.        CONDITIONS TO ALL BORROWINGS.


 


The obligations of the Lenders to make any Loan and
any Issuing Bank to issue, extend, renew or amend any Letter of Credit, in each
case whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:


 


§10.1.     Representations True; No Event of Default.  Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
(excluding, unless the Senior Debt Rating is lower than the Senior Debt Rating
Threshold at the time of any loan or the issuance, extension, renewal or
amendment of any Letter of Credit, the representation and warranty contained in
§5.5 hereof) shall be true as of the date as of which they were made and shall
also be true at and as of the time of the making of such Loan or the issuance,
renewal or extension of such Letter of Credit, with the same effect as if made
at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.


 


§10.2.     No Legal Impediment.  No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable
opinion of any Lender would make it illegal for such Lender to make such Loan
or for such Issuing Bank to issue, extend or renew such Letter of Credit.


 


§10.3.     Governmental Regulation.  Each Lender shall have received from the
Borrower such statements in substance and form reasonably satisfactory to such
Lender as such Lender shall require for the purpose of compliance with any
applicable regulations of the Comptroller of the Currency or the Board of
Governors of the Federal Reserve System.


 


§10.4.     Alternative Currency.  In the case of any Loan to be denominated in
an Alternative Currency, there shall not have occurred any change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent or the Required Lenders would make it impracticable for
such Loan to be denominated in the relevant Alternative Currency.


 


§10.5.     Borrowing Request.  The Administrative Agent and, if applicable,
the applicable Issuing Bank, shall have received a Loan Request, Swing Line
Loan Request or Letter of Credit Application, as the case may be, in accordance
with the requirements hereof.


 


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§11.        EVENTS OF DEFAULT; ACCELERATION; ETC.


 


§11.1.     Events of Default and Acceleration.  Any of the following events shall constitute
an Event of Default:


 


(a)           the Borrower shall fail to pay any principal of the Loans
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;


 


(b)           the Borrower or any Guarantor shall fail to pay any interest
on the Loans, the Facility Fee, any fees due under the Fee Letter, other fees
or other sums due hereunder or under any of the other Loan Documents, within
five (5) Business Days of the date when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;


 


(c)           the Borrower (i) shall fail to comply with any of its
covenants contained in §§6.4, 6.5, 6.6 (with respect to the Borrower’s or any
Guarantor’s existence), 7 or 8 hereof, or (ii) shall fail to comply with
its covenants contained in §§6.6 (other than with respect to the Borrower’s or
any Guarantor’s existence), 6.10 or 6.13 and such failure shall continue for
thirty (30) days;


 


(d)           the Borrower or any of its Subsidiaries shall fail to
perform any term, covenant or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere in this §11.1) for thirty
(30) days after written notice of such failure has been given to the Borrower
by the Administrative Agent;


 


(e)           any material representation or warranty of the Borrower or
any of its Subsidiaries in this Credit Agreement or any of the other Loan
Documents or in any other document or instrument delivered pursuant to or in
connection with this Credit Agreement shall prove to have been false in any
material respect upon the date when made or deemed to have been made or repeated;


 


(f)            the Borrower or any of its Subsidiaries shall fail to pay
when due, or within any applicable period of grace, any obligation for borrowed
money or credit received (other than trade credit in the ordinary course of
business) or in respect of any Capitalized Leases or any obligations with
respect to Swap Contracts which, in the aggregate, represents Indebtedness
(calculated, with respect to Swap Contracts, based on the Swap Termination
Value owed by the Borrower or such Subsidiary as a result thereof) of
$75,000,000 or more, or fail to observe or perform any material term, covenant
or agreement contained in any agreement by which it is bound, evidencing or
securing borrowed money or credit received (other than trade credit in the
ordinary course of business) or in respect of any Capitalized Leases or Swap
Contracts which, in the aggregate, represents Indebtedness (calculated, with
respect to Swap Contracts, based on the Swap Termination Value owed by the
Borrower or such Subsidiary as a result thereof) of $75,000,000 or more, and
for such period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof;


 


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(g)           (i) the Borrower or any of its Material Subsidiaries (1) shall
make an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or become
due, or (2) shall petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of the Borrower or any of its Material
Subsidiaries or of any substantial part of the assets of the Borrower or any of
its Material Subsidiaries or shall commence any case or other proceeding
relating to the Borrower or any of its Material Subsidiaries under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter
in effect, or (3) shall take any action to authorize or in furtherance of
any of the foregoing, or (ii) if any such petition or application shall be
filed or any such case or other proceeding shall be commenced against the
Borrower or any of its Material Subsidiaries and shall not have been dismissed
within sixty (60) days, or the Borrower or any of its Material Subsidiaries
shall indicate its approval thereof, consent thereto or acquiescence therein;


 


(h)           a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of its
Material Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered in
respect of the Borrower or any Material Subsidiary of the Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter constituted;


 


(i)            there shall remain in force, undischarged, unsatisfied and
unstayed, for more than sixty (60) days, whether or not consecutive, any final
judgment against the Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged, against the Borrower or any of its
Subsidiaries exceeds in the aggregate $50,000,000;


 


(j)            (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 accelerated liability of the Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $75,000,000, (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, and the
extension of the time to pay in connection with the resolution of any dispute
in accordance with the terms of Title IV of ERISA, any installment payment with
respect to its withdrawal liability under §4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $75,000,000, (iii) the Borrower
or any of its Subsidiaries fails to comply with Applicable Pension Laws with
respect to any Foreign Plan and such failure has resulted or could reasonably
be expected to result in accelerated liability in an aggregate amount in excess
of $75,000,000, or (iv) a Foreign Plan is terminated and such termination
has resulted or could reasonably be expected to (x) result in accelerated
liability in an aggregate amount in excess of $75,000,000 and (y) have a
material adverse effect on the business, assets or financial condition of the
Borrower and its Subsidiaries, taken as a whole;


 


(k)           the holders of all or any part of the Subordinated Debt
shall accelerate the maturity of all or any part of the Subordinated Debt or
the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in
part, or an offer to prepay, redeem or repurchase the Subordinated Debt in
whole or in part shall have been made, in each case in violation of the
provisions of this Credit Agreement;


 


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(l)            if any of the Loan Documents shall be canceled, terminated,
revoked or rescinded, in each case otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Lenders, or any action at law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any of its Subsidiaries party thereto or any of their
respective stockholders, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a determination that,
or issue a judgment, order, decree or ruling to the effect that, any one or
more of the Loan Documents is illegal, invalid or unenforceable in accordance
with the terms thereof; or


 


(m)          a “Change in Control”
shall have occurred (which for the purposes of this subsection (m) shall
mean the occurrence of any of the following events):


 


(i)            the acquisition by any Person (including any syndicate or
group deemed to be a “person” under Section 13(d)(3) of the
Securities and Exchange Act of 1934, as amended) of beneficial ownership,
directly or indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, of shares of Capital Stock of the
Borrower entitling such Person to exercise 50% or more of the total voting
power of all shares of Capital Stock of the Borrower entitled to vote generally
in the elections of directors (any shares of voting stock of which such person
or group is the beneficial owner that are not then outstanding being deemed
outstanding for purposes of calculating such percentage);


 


(ii)           any consolidation of the Borrower with, or merger of the
Borrower into, any other Person, any merger of another Person into the
Borrower, or any sale or transfer of all or substantially all of the assets of
the Borrower to another Person (other than a transfer of assets to one or more
Guarantors or a merger (A) which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Capital Stock of
the Borrower or (B) which is effected solely to change the jurisdiction of
incorporation of the Borrower); or


 


(iii)          during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the stockholders of the Borrower was approved
by a vote of 66-2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office; or


 


(n)           any of (i) the Borrower or any of its Subsidiaries
shall fail to make any payment under any Permitted Securitization Transaction
that is a Material Securitization Transaction, when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise), and any such failure shall continue after the applicable
grace period, if any, specified in the documents relating to such transaction,
or (ii) any Event of Termination under any Material Securitization
Transaction shall occur and continue after the applicable grace period, if any,
specified in such documents if either, pursuant to such documents, (A) the
existence of such Event of Termination would automatically cause the
acceleration of all indebtedness due to the purchaser or lender under such
documents or (B) the existence of such Event of Termination would permit
the purchaser or lender under such 


 


81

















 


documents
to accelerate the payment of all indebtedness due to the purchaser or lender
under such documents or require the repurchase of the receivables sold
thereunder and (1) such Event of Termination continues unremedied or
unwaived for a period of more than ninety (90) days after the date that the
Administrative Agent gives notice to the Borrower of such Event of Termination
or (2) the purchaser or lender under such documents accelerates the
payment of such indebtedness or requires the repurchase of the receivables sold
thereunder.


 


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


 


(a)           declare the commitment of each Lender to make Loans and any
obligation of the Issuing Banks to issue, extend or renew Letters of Credit to
be terminated, whereupon such commitments and obligation shall be terminated;


 


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


 


(c)           require that the Borrower Cash Collateralize the Unpaid
Reimbursement Obligations (in an amount equal to the then Outstanding amount
thereof) plus the Maximum Drawing Amount; and


 


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


 


provided, however, that upon the occurrence of an Event of
Default under §§11.1(g) or (h), the obligation of each Lender to make
Loans and any obligation of the Issuing Banks to issue, extend or renew Letters
of Credit shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrower to
Cash Collateralize the Unpaid Reimbursement Obligations plus the Maximum
Drawing Amount as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.


 


§11.3.     Application of Funds.  After the exercise of remedies provided for
in §11.2 (or after the Loans have automatically become immediately due and
payable and the Unpaid Reimbursement Obligations and the Maximum Drawing Amount
have automatically been required to be Cash Collateralized as set forth in the
proviso to §11.2), any amounts received on account of the Obligations shall,
subject to the provisions of §§4.15 and 4.16, 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 §4) payable to
the Administrative Agent in its capacity as such;


 


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Second, to
payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the Issuing Banks (including fees, charges and
disbursements of counsel to the respective Lenders and the Issuing Banks and
amounts payable under §4), 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
Letter of Credit Fees and interest on the Loans, Unpaid Reimbursement
Obligations and other Obligations, ratably among the Lenders and the Issuing
Banks in proportion to the respective amounts described in this clause Third
payable to them;


 


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


 


Fifth, to
the Administrative Agent for the account of the Issuing Banks, to Cash
Collateralize that portion of the Maximum Drawing Amount to the extent not
otherwise Cash Collateralized by the Borrower pursuant to §3 and §4.15; and


 


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


 


Subject to §3.3 and §4.15, amounts used to Cash
Collateralize the Maximum Drawing Amount pursuant to clause Fifth above
shall be applied to satisfy drawings under such Letters of Credit as they
occur.  If any amount remains on deposit
as Cash Collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other Obligations, if
any, in the order set forth above.


 


§12.        SETOFF.


 


Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits or other sums credited by
or due from any of the Lenders or any of the Subsidiaries of the holding
company owning such Lender to the Borrower may be applied to or set off by such
Lender or such Subsidiary of the holding company owning such Lender against the
payment of Obligations and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising, of the Borrower to such Lender; provided, that in the event
that any Defaulting Lender shall exercise any such right of setoff, (x) all
amounts so set off shall be paid over immediately to the Administrative Agent
for further application in accordance with the provisions of §4.16 and, pending
such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent and
the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right
of setoff..  Each of the Lenders agrees
with each other Lender that (a) if an amount to be set off is to be
applied to Indebtedness of the Borrower to such Lender, other than Indebtedness
evidenced by the Credit Agreement or constituting Reimbursement Obligations
owed to such Lender, such amount shall be applied ratably to such other
Indebtedness (except that no amounts shall be applied to 


 


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documentary letters of credit) and to the Indebtedness
evidenced by the Credit Agreement or constituting Reimbursement Obligations
owed to such Lender, and (b) if such Lender shall receive from the
Borrower, whether by voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim evidenced by the Credit
Agreement, or constituting Reimbursement Obligations owed to, such Lender by
proceedings against the Borrower at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings,
or otherwise, and shall retain and apply to the payment of the Obligations held
by such Lender any amount in excess of its ratable portion of the payments
received by all of the Lenders with respect to the Loans made by, and
Reimbursement Obligations owed to, all of the Lenders, such Lender will make
such disposition and arrangements with the other Lenders with respect to such
excess, either by way of distribution, pro tanto assignment of claims, subrogation
or otherwise as shall result in each Lender receiving in respect of the Loans
made by it or Reimbursement Obligations owed it, its proportionate payment as
contemplated by this Credit Agreement; provided that if all or any part
of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.


 


§13.        THE ADMINISTRATIVE AGENT.


 


§13.1.     Appointment and Authority.  Each of the Lenders and the Issuing Banks
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 Section are solely for the benefit of the Administrative Agent, the
Lenders and the Issuing Banks, and the
Borrower shall not have rights as a third party beneficiary of any of
such provisions.


 


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


 


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


 


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


 


(b)           shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or 


 


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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 shall be expressly provided for herein or in the other Loan
Documents), provided that the Administrative Agent shall 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)           shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Borrower or any of its
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 shall not be liable to the
Lenders for any action taken or not taken by it (i) with the consent or at
the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith shall be necessary, under the circumstances as provided in §11.2 and
§24) or (ii) in the absence of its own gross negligence or willful
misconduct.  The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or an Issuing Bank.


 


The Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Credit 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 Credit Agreement, any other Loan Document
or any other agreement, instrument or document or (v) the satisfaction of
any condition set forth in §§9 or 10 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.


 


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


 


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§13.5.     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 Section shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


§13.6.     Resignation of Administrative Agent.  (a) The
Administrative Agent may at any time resign by giving fifty (50) days’ prior
written notice thereof to the Lenders, the Issuing Banks and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States.  Unless a Default or Event of Default shall
have occurred and be continuing, such successor Administrative Agent shall be
reasonably acceptable to the Borrower. 
If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within fifty (50) days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and each Issuing Bank directly,
until such time as the Required Lenders appoint a successor Administrative
Agent as provided for above in this §13.6. 
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall 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 shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
§13.6).  The fees payable by the Borrower
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Section and §§14 and 15 shall 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.


 


(b)           Any resignation by Bank of America as administrative agent
pursuant to this §13.6 shall also constitute its resignation as lender of the
Swing Line Loans to the extent that Bank of America is acting in such capacity
at such time.  Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring lender of the Swing 


 


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Line Loans
and (b) the retiring lender of the Swing Line Loans shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents.


 


§13.7.     Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and
each Issuing Bank 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
Credit Agreement.  Each Lender and each
Issuing Bank 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 shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Credit Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.


 


§13.8.     No Other Duties, Etc.  Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Co-Syndication Agents or
Co-Documentation Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Credit Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
a Lender or an Issuing Bank hereunder.


 


§13.9.     Administrative Agent May File Proofs of Claim.  In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial,
administrative or like proceeding or any assignment for the benefit of
creditors relative to Borrower or any of its Subsidiaries, the Administrative
Agent (irrespective of whether the principal of any Loan, Reimbursement
Obligation or Unpaid Reimbursement Obligation shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise


 


(a)           to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, Reimbursement
Obligations, Unpaid Reimbursement Obligations and all other Obligations that
are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the Issuing Banks and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the Issuing Banks and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the Issuing Banks and the Administrative Agent under
the terms of this Credit Agreement) 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 and each Issuing Bank to make
such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to
the Lenders and the Issuing Banks, to pay to 


 


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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 the terms of this Credit Agreement.


 


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


 


§13.10.  Guaranty Matters.  The Lenders and the Issuing Banks irrevocably
authorize and direct the Administrative Agent, pursuant to and in accordance
with §4.14, to release any Guarantor from its obligations under the
Guaranty.  Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release any Guarantor from its
obligations under the Guaranty pursuant to this §13.10.


 


§13.11.  Indemnity.  To the extent not reimbursed by the Borrower,
the Lenders ratably agree hereby to indemnify and hold harmless the
Administrative Agent  and its Affiliates
(including any of the officers, directors, employees, agents and
attorneys-in-fact of any thereof) (each an “Indemnified Party”) from and
against any and all claims, actions and suits (whether groundless or
otherwise), losses, damages, costs, expenses (including any expenses for which
such Indemnified Party has not been reimbursed by the Borrower as required by
§14 hereof), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Letters of Credit or any of the other
Loan Documents or the transactions contemplated or evidenced hereby or thereby,
or such Indemnified Party’s actions taken hereunder or thereunder, except to
the extent that any of the same shall be directly caused by such Indemnified
Party’s willful misconduct, gross negligence or, in the absence of instruction
or concurrence of the Required Lenders, breach of contract.


 


§14.        EXPENSES.


 


The Borrower agrees to pay (a) the Administrative
Agent’s reasonable costs of producing and reproducing this Credit Agreement,
the other Loan Documents and the other agreements and instruments mentioned
herein, (b) the reasonable fees, expenses and disbursements of the
Administrative Agent’s Special Counsel or any local counsel to the
Administrative Agent incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, and amendments, modifications,
approvals, consents or waivers hereto or hereunder, (c) the reasonable
fees, expenses and disbursements of the Administrative Agent or any of its
Affiliates incurred by the Administrative Agent or such Affiliate in connection
with the preparation, administration or interpretation of the Loan Documents
and other instruments mentioned herein, (d) all reasonable out-of-pocket
expenses incurred by the Issuing Banks in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder, (e) all reasonable out-of-pocket expenses (including,
without limitation, reasonable attorneys’ fees and costs and reasonable
accounting, appraisal, investment banking and similar professional fees and
charges) incurred by the Administrative Agent or any Lender in connection with
the enforcement of or preservation of rights under any of the Loan Documents
against the Borrower 


 


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or any of its Subsidiaries or the administration
thereof after the occurrence of an Event of Default (including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiation), and (f) all reasonable fees, expenses and disbursements of
the Administrative Agent incurred in connection with UCC searches.  The Borrower shall not pay the fees, expenses
and disbursements incurred by any Lender other than the Administrative Agent in
connection with the review and preparation of this Credit Agreement, the other
Loan Documents and the other agreements and instruments mentioned herein.  The covenants of this §14 shall survive
payment or satisfaction of all other Obligations.


 


§15.        INDEMNIFICATION.


 


The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Agents, the Co-Lead Arrangers, the Lenders and their
respective Affiliates, officers, directors and employees (each such Person
being called an “Indemnitee”) from and against any and all claims,
actions and suits whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character
arising out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (a) any
actual or proposed use by the Borrower or any of its Subsidiaries of the
proceeds of any of the Loans or the Letters of Credit, (b) the Borrower or
any of its Subsidiaries entering into or performing this Credit Agreement or
any of the other Loan Documents or (c) with respect to the Borrower and
its Subsidiaries and their respective properties and assets, the violation of
any Environmental Law, the presence, disposal, escape, seepage, leakage,
spillage, discharge, emission, release or threatened release of any Hazardous
Substances or any action, suit, proceeding or investigation brought or threatened
with respect to any Hazardous Substances (including, but not limited to, claims
with respect to wrongful death, personal injury or damage to property), in each
case including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation, litigation or other
proceeding, but excluding liabilities, losses, damages or expenses which are
determined by a court of competent jurisdiction by final order to result from
the gross negligence, willful misconduct or breach of contract of the Person
seeking indemnification hereunder.  In
litigation, or the preparation therefor, the Indemnitee shall be entitled to
select its own counsel and, in addition to the foregoing indemnity, the
Borrower agrees to pay promptly the reasonable fees and expenses of such
counsel. No Indemnitee shall be liable for any damages arising from the use by
others of any information or other materials obtained through IntraLinks or
other similar information transmission systems which was disseminated in
connection with this Credit Agreement or the transactions contemplated hereby
or for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic
or other information transmission systems in connection with this Credit
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby, except, in each case, to the extent such damages are found in a
final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Indemnitee’s gross negligence, willful misconduct or breach
of contract relating to its treatment or handling of such IntraLinks
information, electronic telecommunications or other information transmission
system.  If, and to the extent that the
obligations of the Borrower under this §15 are unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable
law.  The covenants contained in this §15
shall survive payment or satisfaction in full of all other Obligations.


 


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§16.        SURVIVAL OF COVENANTS, ETC.


 


All covenants, agreements, representations and
warranties made herein, in any of the other Loan Documents or in any documents
or other papers delivered by or on behalf of the Borrower or any of its
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the Lenders
and the Administrative Agent, notwithstanding any investigation heretofore or
hereafter made by any of them and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default, and shall
survive the making by the Lenders of any of the Loans or the issuance of any
Letters of Credit, as herein contemplated, and shall continue in full force and
effect so long as any amount due under this Credit Agreement or any Letter of
Credit or the other Loan Documents remains outstanding or any Lender has any
obligation to make any Loans or any Issuing Bank has any obligation to issue,
renew or extend Letters of Credit, and for such further time as may be
otherwise expressly specified in this Credit Agreement.  All statements contained in any certificate
or other paper delivered to any Lender or the Administrative Agent at any time
by or on behalf of the Borrower or any of its Subsidiaries pursuant hereto or
in connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Subsidiary hereunder.


 


§17.        SUCCESSORS AND ASSIGNS.


 


§17.1.     Successors and Assigns Generally.  The provisions of this Credit Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of §17.2, (ii) by way of
participation in accordance with the provisions of §17.4, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of §17.6 (and any
other attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in §17.4 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the
Issuing Banks and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Credit Agreement.


 


§17.2.     Assignments by Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this Credit
Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this §17.2, participations in Unpaid Reimbursement
Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(a)           Minimum Amounts.


 


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


 


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(ii)           in any case not described in §17.2(a)(i), 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 Acceptance with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Acceptance, as of the Trade Date,
shall not be less than $5,000,000 unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been met.


 


(b)           Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Credit Agreement with respect to the Loans or the
Commitment assigned, except that this clause (b) shall not apply to the
Administrative Agent’s rights and obligations in respect of Swing Line Loans;


 


(c)           Required Consents.  No consent shall be required for any assignment
except to the extent required by §17.2(a)(ii) and, in addition:


 


(i)            the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an Event of
Default has occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender or an Affiliate of a Lender (other than an Approved
Fund);  provided
that the Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent
within five (5) Business Days after having received written notice
thereof;


 


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


 


(iii)          the consent of the Issuing Banks (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one
or more Letters of Credit (whether or not then outstanding).


 


(d)           Assignment and Acceptance.  The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee in the amount of $3,500; provided,
however, that the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any
assignment; and any documents, certificates or evidence required to be
delivered under §4.3.3.  The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


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(e)           No Assignment to Certain Persons.  No such assignment
shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries,
or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person
who, upon becoming a Lender hereunder, would constitute any of the foregoing
Persons described in this clause (B), or (C) to a natural person.


 


(f)            Certain Additional Payments.  In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment, purchases
by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender
to the Administrative Agent or any Lender hereunder (and interest accrued
thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swing Line Loans in
accordance with its Commitment Percentage. 
Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall become
effective under applicable law without compliance with the provisions of this
paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Credit Agreement until such
compliance occurs.


 


(g)           Alternative Currencies.  Each assignee shall be capable of lending in
all currencies available to the Borrower hereunder as of the effective date of
such assignment without the imposition of any additional costs or expenses to
the Borrower.


 


Subject to acceptance and recording thereof by the
Administrative Agent pursuant to §17.3, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party to this Credit Agreement and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of a Lender
under this Credit Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Credit Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Credit Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of §§4.3.3, 4.7, 4.8,
14 and 15, with respect to facts and circumstances occurring prior to the
effective date of such assignment.  Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Credit Agreement that
does not comply with this subsection shall be treated for purposes of this
Credit Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with §17.4.


 


§17.3.     Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower (and such agency being solely for tax
purposes), shall maintain at the Administrative Agent’s Head Office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and Unpaid Reimbursement Obligations 


 


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owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Credit Agreement, notwithstanding
notice to the contrary.  In addition, the
Administrative Agent shall maintain on the Register information regarding the
designation, and revocation of designation, of any Lender as a Defaulting
Lender.  The Register shall be available
for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.


 


§17.4.     Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person, a Defaulting Lender
or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Credit Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in Unpaid Reimbursement Obligations
and/or Swing Line Loans) owing to it); provided that (i) such
Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the Issuing Banks shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Credit Agreement.


 


Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Credit Agreement and to approve any amendment,
modification or waiver of any provision of this Credit 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 second sentence of §24 that affects such
Participant.  Subject to §17.5, the
Borrower agrees that each Participant shall be entitled to the benefits of
§§4.3.3, 4.7 and 4.8 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to §17.2. 
To the extent permitted by law, each Participant also shall be subject
to, and entitled to the benefits of, §12 as though it were a Lender.


 


§17.5.     Limitations on Participant Rights.  A Participant shall not be entitled to
receive any greater payment under §4.3.3 or §4.7 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 Borrower’s prior written consent. 
A Participant shall not be entitled to the benefits of §4.3.3 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with §4.3.3(e) as
though it were a Lender.


 


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


 


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§17.7.     Resignation as Issuing Bank After Assignment.  Notwithstanding
anything to the contrary contained herein, if at any time any Issuing Bank
assigns all of its Commitment and Revolving Credit Loans pursuant to §17.2,
such Issuing Bank may, upon thirty (30) days’ notice to the Borrower and the
Lenders, resign as an Issuing Bank.  In
the event of any such resignation as an Issuing Bank, the Borrower shall be
entitled to appoint from among the Lenders a successor Issuing Bank hereunder; provided,
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of such Issuing Bank as an Issuing Bank.  If an Issuing Bank resigns as an Issuing Bank,
it shall retain all the rights, powers, privileges and duties of an Issuing
Bank hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation issued by such Issuing Bank and all Unpaid
Reimbursement Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to §3.3).  Upon the
appointment of a successor Issuing Bank, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring Issuing Bank, and (b) the successor Issuing Bank shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the resigning Issuing Bank to effectively assume the
obligations of such Issuing Bank with respect to such Letters of Credit.


 


§18.        NOTICES, ETC.


 


Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required by this Credit
Agreement or any Letter of Credit Applications shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier, or sent by telegraph,
telecopy, facsimile or telex and confirmed by delivery via courier or postal
service, addressed as follows:


 


(a)           if to the Borrower, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
18, or at such other address for notice as the Borrower shall last have
furnished in writing to the Person giving the notice;


 


(b)           if to the Administrative Agent, to the address, telecopier
number, electronic mail address or telephone number specified for such Person
on Schedule  18, or such other addresses for notice as the
Administrative Agent shall last have furnished in writing to the Person giving
the notice; and


 


(c)           if to any Lender, at such Lender’s address set forth on such
Lender’s Administrative Questionnaire, or such other address for notice as such
Lender shall have last furnished in writing to the Person giving the notice.


 


Any such notice or demand shall be deemed to have been
duly given or made and to have become effective (i) if delivered by hand,
overnight courier or facsimile to a responsible officer of the party to which
it is directed, at the time of the receipt thereof by such officer and (ii) if
sent by registered or certified first-class mail return receipt requested,
postage prepaid, on the third Business Day following the mailing thereof.


 


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Notices and other communications to the Lenders and
the Issuing Banks hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or any Issuing Bank pursuant
to §§2 and 3 if such Lender or such Issuing Bank, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such
§§2 and 3 by electronic communication. 
The Administrative Agent or the Borrower may, in its discretion, agree
to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.


 


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


 


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.


 


The Administrative Agent, the Issuing Banks and the
Lenders shall be entitled to reasonably rely and act in good faith upon any
notices (including telephonic Loan Requests and Swing Line Loan Requests)
purportedly given by or on behalf of the Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Borrower shall indemnify
the Administrative Agent, each Issuing Bank, each Lender and the directors,
officers, employees, agents and advisors of each of them from all losses,
costs, expenses and liabilities resulting from the reasonable reliance by such
Person pursuant to this §18 on each notice purportedly given by or on behalf of
the Borrower.  All telephonic notices to
and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


§19.        GOVERNING LAW.


 


THIS CREDIT AGREEMENT AND, EXCEPT
AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS
ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL
PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE
(EXCLUDING THE LAWS 


 


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APPLICABLE TO CONFLICTS OR CHOICE OF LAW).  THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING IN
SUCH STATE AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN §18 HEREOF.  THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.


 


§20.        HEADINGS.


 


The captions in this Credit Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.


 


§21.        COUNTERPARTS.


 


This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of
which together shall constitute one instrument. 
In proving this Credit Agreement it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.  Delivery by
facsimile or other electronic transmission by any of the parties hereto of an
executed counterpart hereof or of any amendment or waiver hereto shall be as
effective as an original executed counterpart hereof or of such amendment or
waiver and shall be considered a representation that an original executed
counterpart hereof or such amendment or waiver, as the case may be, will be
delivered.


 


§22.        ENTIRE AGREEMENT, ETC.


 


The Loan Documents and any other documents executed in
connection herewith or therewith express the entire understanding of the
parties with respect to the transactions contemplated hereby. Neither this
Credit Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in §24 hereof.


 


§23.        WAIVER OF JURY TRIAL.


 


Each party hereto hereby waives its right to a jury
trial with respect to any action or claim arising out of any dispute in
connection with this Credit Agreement or any of the other Loan Documents, any
rights or obligations hereunder or thereunder or the performance of which
rights and obligations.  Except as
prohibited by law, the Borrower hereby waives any right it may have to claim or
recover in any litigation referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages.  The
Borrower (a) certifies that no representative, agent or attorney of any
Lender or the Administrative Agent has represented, expressly or otherwise,
that such Lender or the Administrative Agent would not, in the event of
litigation, seek to enforce the foregoing waivers and (b) acknowledges
that the Administrative Agent and the Lenders have been induced to enter 


 


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into this Credit Agreement, the other Loan Documents
to which it is a party by, among other things, the waivers and certifications
contained herein.


 


§24.        CONSENTS, AMENDMENTS, WAIVERS, ETC.


 


Any consent or approval required or permitted by this
Credit Agreement to be given by the Lenders may be given, and any term of this
Credit Agreement, the other Loan Documents or any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrower or any of its Subsidiaries of any terms of this Credit Agreement,
the other Loan Documents or such other instrument or the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Borrower, the written consent of the Required Lenders
and the written acknowledgment of the Administrative Agent.  Notwithstanding the foregoing, (a) the
rate of interest on the Loans and the amount of any Facility Fees may not be
reduced or forgiven, the term of the Loans or the Commitments may not be
extended, the regularly scheduled payment date for principal or interest on the
Loans, the Reimbursement Obligations or any Facility Fees may not be postponed or
extended, and the Commitment Amounts of a Lender may not be increased, in each
case without the written consent of the Borrower and the written consent of
each Lender directly affected thereby; (b) the principal amount of any
Loans or the Reimbursement Obligations may not be forgiven without the written
consent of each Lender directly affected thereby; (c) this §24 may not be
changed without the written consent of the Borrower and the written consent of
all of the Lenders; (d) the definition of Required Lenders may not be
amended without the written consent of all of the Lenders; (e) the
Administrative Agent may not release any guaranty for the Obligations (except
as provided in §4.14 hereof) without the written consent of all the Lenders; (f) the
amount of any fees payable for the account of the Administrative Agent pursuant
to the Fee Letter, any provision applicable to the Swing Line Loans and the
Administrative Agent in its capacity as lender of the Swing Line Loans, and §13
hereof may not be amended without the written consent of the Administrative
Agent; (g) no provision applicable to the Issuing Banks may be amended
without the written consent of the Issuing Banks; and (h) §1.5 or the
definition of “Alternative Currency” may not be amended without the written
consent of each Lender. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.  No course of dealing or delay or omission on
the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto.  No notice to or demand upon the Borrower
shall entitle the Borrower to other or further notice or demand in similar or
other circumstances.  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without
the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender more adversely than other affected Lenders shall
require the consent of such Defaulting Lender. 
If any Lender does not consent to a proposed amendment, waiver or
consent to release with respect to any Loan Document that requires consent of
each Lender or each affected Lender and has been approved by the Required
Lenders, the Borrower may replace such non-consenting Lender in accordance with
§4.12; provided that such 


 


97

















 


amendment, waiver, consent or release can be effected
as a result of the assignment(s) contemplated by such Section.


 


§25.        TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.


 


§25.1.     Confidentiality.  Each of the Lenders and the Administrative
Agent agrees, on behalf of itself and each of its Affiliates, directors,
officers, employees and representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any Confidential Information supplied to it by the
Borrower or any of its Subsidiaries pursuant to this Credit Agreement, provided
that nothing herein shall limit the disclosure of any such information (a) after
such information shall have become public other than through a violation of
this §25 or becomes available to any of the Lenders or the Administrative Agent
on a nonconfidential basis from a source other than the Borrower or any of its
Subsidiaries, (b) to the extent required by statute, rule, regulation or
judicial process, (c) to counsel for any of the Lenders or the
Administrative Agent, (d) to bank examiners, any other regulatory authority
having jurisdiction over any Lender, any of its Affiliates or the
Administrative Agent (to the extent required by such Lender or such Affiliate
by law or subpoena, but only to the extent permitted by applicable laws and
regulations, including those applying to classified materials), or to auditors
or accountants (provided such auditor or accountant has agreed to be bound by
this §25), (e) to the Administrative Agent, any Lender or, solely in
connection with this Credit Agreement and the transactions contemplated hereby,
any Financial Affiliate (provided such Financial Affiliate has agreed in a
writing enforceable by the Borrower to be bound by this §25), (f) in
connection with any litigation to which any one or more of the Lenders, the
Administrative Agent or any Financial Affiliate is a party, or in connection
with the enforcement of rights or remedies hereunder or under any other Loan
Document, (g) solely in connection with this Credit Agreement and the
transactions contemplated hereby, to a Lender Affiliate or a Subsidiary or
Affiliate of the Administrative Agent (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), (h) to
any assignee or participant (or prospective assignee or participant) or any
actual or prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under this
Credit Agreement or any other Loan Document so long as such assignee,
participant or counterparty, as the case may be, agrees in a writing
enforceable by the Borrower to be bound by the provisions of this §25 or (i) with
the consent of the Borrower.


 


§25.2.     Prior Notification.  Unless specifically prohibited by applicable
law or court order, each of the Lenders and the Administrative Agent shall,
prior to disclosure thereof, notify the Borrower of any request for disclosure
of any such non-public information by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) or pursuant to
legal process including, without limitation, any disclosure under §25.1(b), (d) or
(f).  In addition to, and without
limiting the foregoing, each of the Lenders and the Administrative Agent shall
permit the Borrower to intervene in any relevant proceedings to protect its
interests in the non-public information and shall provide reasonable
cooperation to the Borrower, at the Borrower’s expense, in seeking to obtain
such protection.  Each of the Lenders and
the 


 


98

















 


Administrative
Agent further agrees that if the Borrower is not successful in precluding the
court or other legal body from requiring the disclosure of the non-public
information, such Lender or the Administrative Agent, as the case may be, will
furnish only that portion of the non-public information which it in good faith
reasonably considers to be legally required and, at the request and expense of
the Borrower, will exercise all reasonable efforts to obtain reliable
assurances that confidential treatment will be accorded the non-public
information.


 


§25.3.     Other.  In no event shall any Lender or the
Administrative Agent be obligated or required to return any materials furnished
to it or any Financial Affiliate by the Borrower or any of its
Subsidiaries.  The obligations of each
Lender under this §25 shall supersede and replace the obligations of such
Lender under any confidentiality letter in respect of this financing signed and
delivered by such Lender to the Borrower prior to the date hereof and shall be
binding upon any assignee of, or purchaser of any participation in, any
interest in any of the Loans or Reimbursement Obligations from any Lender.


 


§26.        SEVERABILITY.


 


The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction, and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Credit Agreement in any jurisdiction. 
Without limiting the foregoing provisions of this §26, if and to the
extent that the enforceability of any provisions in this Credit Agreement
relating to Defaulting Lenders shall be limited by any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, as determined in good faith by
the Administrative Agent or the applicable Issuing Bank, as applicable, then
such provisions shall be deemed to be in effect only to the extent not so
limited.


 


§27.        JUDGMENT CURRENCY.


 


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


 


99

















 


Agreement Currency so purchased is greater than the
sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower
(or to any other Person who may be entitled thereto under applicable law).


 


§28.        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 Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify such Borrower in
accordance with the Act.


 


§29.        NO ADVISORY OR FIDUCIARY
RESPONSIBILITY.


 


In connection with all aspects of each transaction
contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) the credit facility provided for
hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document) are an arm’s-length commercial
transaction between the Borrower and its Affiliates, on the one hand, and the
Administrative Agent, the Co-Lead Arrangers and the Lenders, on the other hand,
and the Borrower is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process
leading to such transaction, the Administrative Agent, the Co-Lead Arrangers
and the Lenders each is and has been acting solely as a principal and is not
the financial advisor, agent or fiduciary, for the Borrower or any of its
Affiliates, stockholders, creditors or employees or any other Person; (iii) none
of the Administrative Agent, no Co-Lead Arranger nor any Lender has assumed or
will assume an advisory, agency or fiduciary responsibility in favor of the
Borrower with respect to any of the transactions contemplated hereby or the
process leading thereto, including with respect to any amendment, waiver or
other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent, any Co-Lead Arranger or any Lender has
advised or is currently advising the Borrower or its Affiliates on other
matters) and none of the Administrative Agent, any Co-Lead Arranger nor any
Lender has any obligation to the Borrower or its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; (iv) the Administrative Agent, the
Co-Lead Arrangers, the Lenders and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Borrower and its Affiliates, and none of the Administrative Agent, any
Co-Lead Arranger nor any Lender has any obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v) none
of the Administrative Agent, any Co-Lead Arranger nor any Lender has provided
or will provide any legal, accounting, regulatory or tax advice with respect to
any of the transactions contemplated hereby (including any amendment, waiver or
other modification hereof or of any other Loan Document) and the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate.  The Borrower
hereby waives and releases, to


 


100
















 


the fullest extent permitted by law, any claims that
it may have against the Administrative Agent, any Co-Lead Arranger or any
Lender with respect to any breach or alleged breach of agency or fiduciary
duty.


 


§30.        COLLATERAL.


 


Each of the Lenders represents to the Administrative
Agent and each of the other Lenders that it in good faith is not relying upon
any margin stock as collateral (whether direct or indirect security) in the
extension or maintenance of the credit provided for in this Credit Agreement.


 


[Remainder of page intentionally
left blank.]


 


101

















 


IN WITNESS WHEREOF, the undersigned have duly executed this Credit Agreement as a sealed
instrument as of the date first set forth above.


 


	
   

  	
  STAPLES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lisa Scopa

  
	
   

  	
   

  	
  Name:

  	
  Lisa Scopa

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Treasurer

  



 


(Signature Page to Credit
Agreement)


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Kainamura

  
	
   

  	
   

  	
  Name:

  	
  Thomas Kainamura

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as an Issuing Bank, lender of Swing Line Loans and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Kainamura

  
	
   

  	
   

  	
  Name:

  	
  Thomas Kainamura

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  BARCLAYS BANK PLC,
  as an Issuing Bank and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Barton

  
	
   

  	
   

  	
  Name:

  	
  David Barton

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION, as an Issuing Bank and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Devir

  
	
   

  	
   

  	
  Name:

  	
  Robert J. Devir

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jordan Fragiocomo

  
	
   

  	
   

  	
  Name:

  	
  Jordan Fragiocomo

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barry Bergman

  
	
   

  	
   

  	
  Name:

  	
  Barry Bergman

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Conan Schleicher

  
	
   

  	
   

  	
  Name:

  	
  Conan Schleicher

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leslie Turkington

  
	
   

  	
   

  	
  Name:

  	
  Leslie Turkington

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit Agreement)


 
















 


	
   

  	
  UNION BANK, N.A.,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ching Lim

  
	
   

  	
   

  	
  Name:

  	
  Ching Lim

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit
Agreement)


 

















 


	
   

  	
  SOVEREIGN BANK,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carlos A. Calixto

  
	
   

  	
   

  	
  Name:

  	
  Carlos A. Calixto

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  CITIBANK N.A.,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dina Garthwaite

  
	
   

  	
   

  	
  Name:

  	
  Dina Garthwaite

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  SUMITOMO MITSUI BANKING CORP., NEW YORK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Yasuhiko Imai

  
	
   

  	
   

  	
  Name:

  	
  Yasuhiko Imai

  
	
   

  	
   

  	
  Title:

  	
  Group
  Head

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  KEY BANK NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marianne T. Meil

  
	
   

  	
   

  	
  Name:

  	
  Marianne T. Meil

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frederick W. Laird

  
	
   

  	
   

  	
  Name:

  	
  Frederick W. Laird

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Heidi Sandquist

  
	
   

  	
   

  	
  Name:

  	
  Heidi Sandquist

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  GOLDMAN SACHS BANK USA, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Walton

  
	
   

  	
   

  	
  Name:

  	
  Mark Walton

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  NATIONAL AUSTRALIA BANK LIMITED, A.B.N. 12 004
  044 937, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Scott

  
	
   

  	
   

  	
  Name:

  	
  Paul Scott

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  UNICREDIT BANK AG, NEW YORK BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ken Hamilton

  
	
   

  	
   

  	
  Name:

  	
  Ken Hamilton

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


	
   

  	
  UNICREDIT BANK AG, NEW YORK BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Danielle Scarola

  
	
   

  	
   

  	
  Name:

  	
  Danielle Scarola

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  THE BANK OF NOVA SCOTIA, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Todd Meller

  
	
   

  	
   

  	
  Name:

  	
  Todd Meller

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  WESTPAC BANKING CORPORATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Henrik Jensen

  
	
   

  	
   

  	
  Name:

  	
  Henrik Jensen

  
	
   

  	
   

  	
  Title:

  	
  Director,
  Corporate & Institutional Banking Americas

  



 


(Signature Page to Credit Agreement)


 

















 


	
   

  	
  THE BANK OF NEW YORK MELLON, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David B. Wirl

  
	
   

  	
   

  	
  Name:

  	
  David B. Wirl

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


(Signature Page to Credit Agreement)


 
















 


SCHEDULE 1


 


Commitments

and Applicable Percentages


 


	
  LENDER

  	
   

  	
  COMMITMENT

  	
   

  	
  APPLICABLE

  PERCENTAGE

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  105,000,000

  	
   

  	
  10.500000000

  	
  %

  
	
  Barclays Bank PLC

  	
   

  	
  $

  	
  105,000,000

  	
   

  	
  10.500000000

  	
  %

  
	
  HSBC Bank USA, National Association

  	
   

  	
  $

  	
  105,000,000

  	
   

  	
  10.500000000

  	
  %

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  78,500,000

  	
   

  	
  7.850000000

  	
  %

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  78,500,000

  	
   

  	
  7.850000000

  	
  %

  
	
  U.S. Bank National Association

  	
   

  	
  $

  	
  48,000,000

  	
   

  	
  4.800000000

  	
  %

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  48,000,000

  	
   

  	
  4.800000000

  	
  %

  
	
  Union Bank, N.A.

  	
   

  	
  $

  	
  48,000,000

  	
   

  	
  4.800000000

  	
  %

  
	
  Sovereign Bank (Santander)

  	
   

  	
  $

  	
  48,000,000

  	
   

  	
  4.800000000

  	
  %

  
	
  Citibank N.A.

  	
   

  	
  $

  	
  48,000,000

  	
   

  	
  4.800000000

  	
  %

  
	
  Sumitomo Mitsui Banking Corp., New York

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  Key Bank National Association

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  Deutsche Bank AG New York Branch

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  Goldman Sachs Bank USA

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  National Australia Bank Limited, A.B.N. 12 004 044
  937

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  Unicredit Bank AG, New York Branch

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  The Bank of Nova Scotia

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  WestPac Banking Corporation

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  The Bank of New York Mellon

  	
   

  	
  $

  	
  32,000,000

  	
   

  	
  3.200000000

  	
  %

  
	
  TOTAL

  	
   

  	
  $

  	
  1,000,000,000

  	
   

  	
  100.000000000

  	
  %

  



 
















 


SCHEDULE 2


 


Guarantors


 


Staples
the Office Superstore, LLC


Staples
the Office Superstore East, Inc.


Staples
Contract & Commercial, Inc.


Staples
the Office Superstore, Limited Partnership


 

















 


SCHEDULE 3


 


Mandatory Cost Formulae


 


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


 


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


 


(b)                                 the requirements of the
European Central Bank.


 


2.                                       On the first
day of each Interest Period (or as soon as practicable thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional
Cost Rate”) for each Lender, in accordance with the paragraphs set out
below.  The Mandatory Cost will be
calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation
of each Lender in the relevant Loan) and will be expressed as a percentage rate
per annum.  The Administrative Agent
will, at the request of the Borrower or any Lender, deliver to the Borrower or
such Lender as the case may be, a statement setting forth the calculation of
any Mandatory Cost.


 


3.                                       The Additional
Cost Rate for any Lender lending from a Lending Office in a Participating
Member State will be the percentage notified by that Lender to the
Administrative Agent.  This percentage
will be certified by such Lender in its notice to the Administrative Agent as
the actual cost (expressed as a percentage of such Lender’s participation in
all Loans made from such Lending Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of Loans made from that
Lending Office.


 


4.                                       The Additional
Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by the Administrative Agent as follows:


 


(a)                                  in relation to any Loan in
Sterling:


 




	
  AB+C(B-D)+E x 0.01

  	
  per
  cent per annum

  
	
  100 - (A+C)

  






 


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


 




	
  E x 0.01

  	
  per
  cent per annum

  
	
  300

  






 


Where:


“A”                                is the percentage of
Eligible Liabilities (assuming these to be in excess of any stated minimum)
which that Lender is from time to time required to maintain as an interest free
cash ratio deposit with the Bank of England to comply with cash ratio
requirements.


 

















 


“B”                                  is the percentage rate of
interest (excluding the Applicable Rate, the Mandatory Cost and any interest
charged on overdue amounts pursuant to the first sentence of §4.11 and, in the
case of interest (other than on overdue amounts) charged at the Default Rate,
without counting any increase in interest rate effected by the charging of the
Default Rate) payable for the relevant Interest Period of such Loan.


“C”                                  is the percentage (if any)
of Eligible Liabilities which that Lender is required from time to time to
maintain as interest bearing Special Deposits with the Bank of England.


“D”                                 is the percentage rate per
annum payable by the Bank of England to the Administrative Agent on interest
bearing Special Deposits.


“E”                                   is designed to compensate
Lenders for amounts payable under the Fees Rules and is calculated by the
Administrative Agent as being the average of the most recent rates of charge
supplied by the Lenders to the Administrative Agent pursuant to paragraph 7
below and expressed in pounds per £1,000,000.


 


5.                                       For the
purposes of this Schedule:


 


(a)                                  “Eligible Liabilities”
and “Special Deposits” have the meanings given to them from time to time
under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by
the Bank of England;


 


(b)                                 “Fees Rules” means
the rules on periodic fees contained in the FSA Supervision Manual or such
other law or regulation as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits;


 


(c)                                  “Fee Tariffs” means
the fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant
to the Fees Rules but taking into account any applicable discount rate); and


 


(d)                                 “Tariff Base” has the
meaning given to it in, and will be calculated in accordance with, the Fees
Rules.


 


6.                                       In application
of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as
0.05).  A negative result obtained by
subtracting D from B shall be taken as zero. 
The resulting figures shall be rounded to four decimal places.


 


7.                                       If requested by
the Administrative Agent or the Borrower, each Lender with a Lending Office in
the United Kingdom or a Participating Member State shall, as soon as
practicable after publication by the Financial Services Authority, supply to
the Administrative Agent and the Borrower, the rate of charge payable by such
Lender to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services Authority (calculated
for this purpose by such Lender as being the average of the Fee Tariffs
applicable to such Lender for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of such Lender.


 

















 


8.                                       Each Lender
shall supply any information required by the Administrative Agent for the
purpose of calculating its Additional Cost Rate.  In particular, but without limitation, each
Lender shall supply the following information in writing on or prior to the
date on which it becomes a Lender:


 


(a)                                  its jurisdiction of
incorporation and the jurisdiction of the Lending Office out of which it is
making available its participation in the relevant Loan; and


 


(b)                                 any other information that
the Administrative Agent may reasonably require for such purpose.


 


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


 


9.                                       The percentages
of each Lender for the purpose of A and C above and the rates of charge of each
Lender for the purpose of E above shall be determined by the Administrative
Agent based upon the information supplied to it pursuant to paragraphs 7 and 8
above and on the assumption that, unless a Lender notifies the Administrative
Agent and the Borrower to the contrary, each Lender’s obligations in relation
to cash ratio deposits and Special Deposits are the same as those of a typical
bank from its jurisdiction of incorporation with a Lending Office in the same
jurisdiction as its Lending Office.


 


10.                                 The
Administrative Agent shall have no liability to any Person if such
determination results in an Additional Cost Rate which over- or
under-compensates any Lender and shall be entitled to assume that the
information provided by any Lender pursuant to paragraphs 3, 7 and 8 above is
true and correct in all respects.


 


11.                                 The
Administrative Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for each Lender based on the information provided by each Lender pursuant
to paragraphs 3, 7 and 8 above.


 


12.                                 Any
determination by the Administrative Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and binding
on all parties hereto.


 


13.                                 The
Administrative Agent may from time to time, after consultation with the
Borrower and the Lenders, determine and notify to all parties any amendments
which are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed by the
Bank of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest error,
be conclusive and binding on all parties hereto.


 

















 


SCHEDULE 3.8


 


Transitional Letters of Credit


 


None.


 

















 


SCHEDULE 5.3


 


Title to Properties; Leases


 


The
Borrower and its Subsidiaries are party to Capitalized Leases that are entered
into in the ordinary course of business.


 

















 


SCHEDULE 5.7


 


Litigation


 


None.


 

















 


SCHEDULE 5.11


 


Employee Benefit Plans


 


Data Documents, Inc. Pension
Plan


Data Documents, Inc. Denver
Bargaining Unit Pension Plan


Data Documents, Inc. Los
Angeles Bargaining Unit Pension Plan


 

















 


SCHEDULE 5.13


 


Environmental Compliance


 


None.


 
















 


SCHEDULE 5.15(a)


 


Subsidiaries, Etc.


 


	
  Name of Subsidiary

  	
   

  	
  Jurisdiction

  
	
  3053840
  Nova Scotia Company

  	
   

  	
  Canada

  
	
  3053841
  Nova Scotia Company

  	
   

  	
  Canada

  
	
  3094494
  Nova Scotia Company

  	
   

  	
  Canada

  
	
  Agawam
  Mill, LP

  	
   

  	
  USA

  
	
  Agena
  Inforgal S.A.

  	
   

  	
  Portugal

  
	
  ATG
  Nye Drift AS

  	
   

  	
  Norway

  
	
  Auxilia Graphica S.r.L.

  	
   

  	
  Italy

  
	
  Beijing
  Staples Commerce & Trade Co., Ltd.

  	
   

  	
  China

  
	
  Bernard
  France SAS

  	
   

  	
  France

  
	
  Buhrmann
  Financial Services Ltd

  	
   

  	
  Ireland

  
	
  Buhrmann
  II B.V.

  	
   

  	
  Netherlands

  
	
  Buhrmann
  Ireland Limited

  	
   

  	
  Ireland

  
	
  Buhrmann
  ISD Groupe S.A.

  	
   

  	
  France

  
	
  Buhrmann
  Office Products Austria B.V.

  	
   

  	
  Netherlands

  
	
  Buhrmann
  Paper UK Limited

  	
   

  	
  United
  Kingdom

  
	
  Buhrmann
  UK Leasing Limited

  	
   

  	
  United
  Kingdom

  
	
  Buhrmann-Tetterode
  International Hellas A.E.E.

  	
   

  	
  Greece

  
	
  CE
  Direct Pty Ltd

  	
   

  	
  Australia

  
	
  CEI
  Pty. Ltd.

  	
   

  	
  Australia

  
	
  CER
  New Zealand Limited

  	
   

  	
  New
  Zealand

  
	
  Cherokee
  Mill, LP

  	
   

  	
  USA

  
	
  Coppell
  Mill, LP

  	
   

  	
  USA

  
	
  Corporate
  Express Australia Ltd.

  	
   

  	
  Australia

  
	
  Corporate
  Express B.V.

  	
   

  	
  Netherlands

  
	
  Corporate
  Express Canada, Inc.

  	
   

  	
  Canada

  
	
  Corporate
  Express Document & Print Management, Inc.

  	
   

  	
  USA

  
	
  Corporate
  Express Employee Share Plan Company Pty. Ltd.

  	
   

  	
  Australia

  
	
  Corporate
  Express España SL

  	
   

  	
  Spain

  
	
  Corporate
  Express France Holding S.A.S.

  	
   

  	
  France

  
	
  Corporate
  Express France S.A.S.

  	
   

  	
  France

  
	
  Corporate
  Express Holding Iberia, SL

  	
   

  	
  Spain

  
	
  Corporate
  Express (Holdings) Ltd.

  	
   

  	
  United
  Kingdom

  
	
  Corporate
  Express (Irl) Limited

  	
   

  	
  Ireland

  
	
  Corporate
  Express Ltd.

  	
   

  	
  United
  Kingdom

  
	
  Corporate
  Express Luxembourg Finance S.A.R.L.

  	
   

  	
  Luxembourg

  
	
  Corporate
  Express Luxembourg Holding S.a.r.l.

  	
   

  	
  Luxembourg

  



 

















 


	
  Corporate
  Express Luxembourg S.A.R.L.

  	
   

  	
  Luxembourg

  
	
  Corporate
  Express New Zealand Limited

  	
   

  	
  New
  Zealand

  
	
  Corporate
  Express (N.I.) Ltd.

  	
   

  	
  United
  Kingdom

  
	
  Corporate
  Express Norway Holdings AS

  	
   

  	
  Norway

  
	
  Corporate
  Express Print Management Limited

  	
   

  	
  New
  Zealand

  
	
  Corporate
  Express Shared Service Center (Europe) BVBA

  	
   

  	
  Belgium

  
	
  Corporate
  Express Silver Europe BV

  	
   

  	
  Netherlands

  
	
  Corporate
  Express Silver Sarl

  	
   

  	
  Luxembourg

  
	
  Corporate
  Express SRL

  	
   

  	
  Italy

  
	
  Corporate
  Express Spain Holding B.V.

  	
   

  	
  Netherlands

  
	
  Corporate
  Express Spain Holding S.L.

  	
   

  	
  Spain

  
	
  Corporate
  Express Supply Chain Pty Limited

  	
   

  	
  Australia

  
	
  Corporate
  Express Swaps US, Inc.

  	
   

  	
  USA

  
	
  Corporate
  Express Sweden Holding AB

  	
   

  	
  Sweden

  
	
  Corporate
  Express UK Holding Limited

  	
   

  	
  United
  Kingdom

  
	
  Cypress
  Brooklyn LLC

  	
   

  	
  USA

  
	
  Cypress
  Brooklyn II LLC

  	
   

  	
  USA

  
	
  Educational
  Experience Pty Limited

  	
   

  	
  Australia

  
	
  EMO
  AS

  	
   

  	
  Norway

  
	
  Fareham
  Developments (One) Limited

  	
   

  	
  United
  Kingdom

  
	
  Fareham
  Developments (Two) Limited

  	
   

  	
  United
  Kingdom

  
	
  Fimaf
  S.A.S.

  	
   

  	
  France

  
	
  Grafimat
  BVBA

  	
   

  	
  Belgium

  
	
  Grieg
  Kalenderforlag

  	
   

  	
  Norway

  
	
  Hong
  Kong Staples Brands Limited

  	
   

  	
  Hong
  Kong

  
	
  Idasil Investimentos Imobiliarios S.A.

  	
   

  	
  Portugal

  
	
  IN
  Designs Global, Inc.

  	
   

  	
  USA

  
	
  Jean
  Paul Guisset —JPG France SAS

  	
   

  	
  France

  
	
  KNP
  BT 1989 Limited

  	
   

  	
  United
  Kingdom

  
	
  Lebanon
  Mill, LP

  	
   

  	
  USA

  
	
  Macchingraf
  SRL

  	
   

  	
  Italy

  
	
  Maquinaria Artes Graficas Hartmann SL

  	
   

  	
  Spain

  
	
  Medical
  Arts Press, Inc.

  	
   

  	
  USA

  
	
  Milbro, Inc.

  	
   

  	
  USA

  
	
  MondOffice
  s.r.l.

  	
   

  	
  Italy

  
	
  OA365
  International Company Limited

  	
   

  	
  Cayman
  Islands

  
	
  Office
  Net S.A.

  	
   

  	
  Argentina

  
	
  Officenet, B2 Express - Comercio, Servicos e
  Representacoes Ltda.

  	
   

  	
  Brazil

  
	
  Oranda
  AG

  	
   

  	
  Switzerland

  



 

















 


	
  Oy
  Lindell AB

  	
   

  	
  Finland

  
	
  Peterborough,
  L.P.

  	
   

  	
  Canada

  
	
  Plantin
  BVBA

  	
   

  	
  Belgium

  
	
  Pressel
  AG

  	
   

  	
  Switzerland

  
	
  Pressel
  Kereskedelmi Kft.

  	
   

  	
  Hungary

  
	
  Pressel
  Post B.V.

  	
   

  	
  Netherlands

  
	
  Pressel
  Post b.v.b.a.

  	
   

  	
  Belgium

  
	
  Pressel
  Sarl

  	
   

  	
  France

  
	
  Pressel
  Sp.z.o.o.

  	
   

  	
  Poland

  
	
  Pressel
  Systems spol.s.r.o.

  	
   

  	
  Czech
  Republic

  
	
  Pressel
  Versand GmbH

  	
   

  	
  Germany

  
	
  Pressel
  Versand International GmbH

  	
   

  	
  Austria

  
	
  Quill
  Corporation

  	
   

  	
  USA

  
	
  Quill
  Lincolnshire, Inc.

  	
   

  	
  USA

  
	
  Reliable
  France SAS

  	
   

  	
  France

  
	
  Rent-a-PC
  SPRL i.l.

  	
   

  	
  Belgium

  
	
  Restructure
  (Vic) Pty. Ltd.

  	
   

  	
  Australia

  
	
  Rich
  Andvord Grafisk AS

  	
   

  	
  Norway

  
	
  SchoolKidz.com, Inc.

  	
   

  	
  USA

  
	
  SchoolKidz.com
  LLC

  	
   

  	
  USA

  
	
  SEC
  UK Delivery Limited

  	
   

  	
  United
  Kingdom

  
	
  Shanghai
  Staples Decoration Technology Co., Ltd.

  	
   

  	
  China

  
	
  SHI
  C.V.

  	
   

  	
  Netherlands

  
	
  SHN
  C.V.

  	
   

  	
  Netherlands

  
	
  Sistemas
  Kalamazoo S.L.

  	
   

  	
  Spain

  
	
  Smilemakers
  Canada, Inc.

  	
   

  	
  USA

  
	
  Smilemakers
  for Children Company

  	
   

  	
  Canada

  
	
  Smilemakers, Inc.

  	
   

  	
  USA

  
	
  SOM
  Hagerstown, Inc.

  	
   

  	
  USA

  
	
  Staples
  Acquisition B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  Acquisition II B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  Acquisition III B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  (Asia) Investments Limited

  	
   

  	
  Cayman
  Islands

  
	
  Staples
  Australia Bid Company Pty Limited

  	
   

  	
  Australia

  
	
  Staples
  Australia Pty Limited

  	
   

  	
  Australia

  
	
  Staples
  Austria GmbH

  	
   

  	
  Austria

  
	
  Staples
  Brand Consulting (Shenzhen) Co., Ltd.

  	
   

  	
  China

  
	
  Staples
  Brands International Limited

  	
   

  	
  Hong
  Kong

  
	
  Staples Brasil Comercio de Materiais de
  Escritorio Ltd

  	
   

  	
  Brazil

  
	
  Staples
  Canada, Inc.

  	
   

  	
  Canada

  



 

















 


	
  Staples
  Canada Luxco SA

  	
   

  	
  Luxembourg

  
	
  Staples Canada Luxco II, SA

  	
   

  	
  Luxembourg

  
	
  Staples
  (China) Investment Co., Ltd.

  	
   

  	
  China

  
	
  Staples
  Commerce & Trade Company Ltd.

  	
   

  	
  China

  
	
  Staples
  Connecticut, Inc.

  	
   

  	
  USA

  
	
  Staples
  Contract & Commercial, Inc.

  	
   

  	
  USA

  
	
  Staples
  Cyprus Holdings Limited

  	
   

  	
  Cyprus

  
	
  Staples
  Cyprus Intermediary Holdings Limited

  	
   

  	
  Cyprus

  
	
  Staples
  Delivery Limited

  	
   

  	
  United
  Kingdom

  
	
  Staples
  Denmark ApS

  	
   

  	
  Denmark

  
	
  Staples
  (Deutschland) GmbH

  	
   

  	
  Germany

  
	
  Staples
  Deutschland GmbH & Co. KG

  	
   

  	
  Germany

  
	
  Staples
  Dutch Management BV

  	
   

  	
  Netherlands

  
	
  Staples
  Employment Services Limited

  	
   

  	
  United
  Kingdom

  
	
  Staples
  Europe B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  Europe Holdings, G.P.

  	
   

  	
  Bermuda

  
	
  Staples
  Europe Import B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  Finland Oy

  	
   

  	
  Finland

  
	
  Staples
  France Holding SAS

  	
   

  	
  France

  
	
  Staples
  Global Markets, Inc.

  	
   

  	
  USA

  
	
  Staples
  GP, LLC

  	
   

  	
  USA

  
	
  Staples
  Hong Kong Investments Limited

  	
   

  	
  Hong
  Kong

  
	
  Staples
  Hungaria Kft

  	
   

  	
  Hungary

  
	
  Staples
  International B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  International Group Services B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  International Limited

  	
   

  	
  United
  Kingdom

  
	
  Staples
  Luxco S.a.r.l.

  	
   

  	
  Luxembourg

  
	
  Staples
  Mail Order UK Limited

  	
   

  	
  United
  Kingdom

  
	
  Staples
  Nederland Holding B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  Nederland BV

  	
   

  	
  Netherlands

  
	
  Staples
  Nordic AS

  	
   

  	
  Norway

  
	
  Staples
  Norway AS

  	
   

  	
  Norway

  
	
  Staples
  NS Holdings, LLC

  	
   

  	
  USA

  
	
  Staples
  of Maryland, LLC

  	
   

  	
  USA

  
	
  Staples
  Office Centre Grosshandels GmbH & Co.KG

  	
   

  	
  Germany

  
	
  Staples
  Office Centre Verwaltungs GmbH

  	
   

  	
  Germany

  
	
  Staples
  Participations B.V.

  	
   

  	
  Netherlands

  
	
  Staples
  Partner, LLC

  	
   

  	
  USA

  
	
  Staples
  PeiPei Office (Jiangsu) Products Co. Ltd.

  	
   

  	
  China

  
	
  Staples
  Polska Sp.z.o.o.

  	
   

  	
  Poland

  
	
  Staples Portugal Equipamento de Escritoria,
  SA

  	
   

  	
  Portugal

  



 

















 


	
  Staples
  Procurement & Management Services Private Limited

  	
   

  	
  India

  
	
  Staples
  Product Sourcing Group Europe, B.V.B.A.

  	
   

  	
  Belgium

  
	
  Staples
  Promotional Products Canada Ltd.

  	
   

  	
  Canada

  
	
  Staples
  Promotional Products Europe Ltd

  	
   

  	
  UK

  
	
  Staples
  Receivables, LLC

  	
   

  	
  USA

  
	
  Staples
  Retail Norway AS

  	
   

  	
  Norway

  
	
  Staples
  Security Corporation

  	
   

  	
  USA

  
	
  Staples
  Shared Service Center, LLC

  	
   

  	
  USA

  
	
  Staples
  Sweden AB

  	
   

  	
  Sweden

  
	
  Staples
  the Office Superstore East, Inc.

  	
   

  	
  USA

  
	
  Staples
  the Office Superstore, Limited Partnership

  	
   

  	
  USA

  
	
  Staples
  the Office Superstore, LLC

  	
   

  	
  USA

  
	
  Staples
  Transportation LLC

  	
   

  	
  USA

  
	
  Staples
  UK Limited

  	
   

  	
  United
  Kingdom

  
	
  Staples
  UK Retail Limited

  	
   

  	
  United
  Kingdom

  
	
  Staples
  Value, LLC

  	
   

  	
  USA

  
	
  Staples
  Verwaltungs GmbH

  	
   

  	
  Germany

  
	
  Teacher
  Direct Limited

  	
   

  	
  New
  Zealand

  
	
  Tetterode-Nederland
  B.V.

  	
   

  	
  Netherlands

  
	
  Thrive
  Networks, Inc.

  	
   

  	
  USA

  
	
  Union
  B.V., Exploitatie Maatschappij

  	
   

  	
  Netherlands

  
	
  VRG-Papier
  B.V.

  	
   

  	
  Netherlands

  



 

















 


SCHEDULE 5.15(b)


 


Joint Ventures and Partnerships


 


Fingraf N.V. (Belgium)


Inforgal Agena SGPS, SA (Portugal)


Shenzhen
Staples Commerce & Trade Co., Ltd. (China)


Staples
Future Office Products Private Limited (India)


Staples
UPS Business Services (Beijing) Co. Ltd.


UB
Staples Corporation Limited (Cayman)


 

















 


SCHEDULE 5.16


 


Taxpayer Identification Numbers


 


	
  Company

  	
   

  	
  Taxpayer ID

  
	
  Staples, Inc.

  	
   

  	
  04-2896127

  
	
  Staples
  the Office Superstore, LLC

  	
   

  	
  04-3102589

  
	
  Staples
  the Office Superstore East, Inc.

  	
   

  	
  04-3176952

  
	
  Staples
  Contract & Commercial, Inc.

  	
   

  	
  04-3390816

  
	
  Staples
  the Office Superstore, Limited Partnership

  	
   

  	
  20-0672786

  



 

















 


SCHEDULE 7.1


 


Existing Indebtedness


 


$325,000,000
Senior Term Notes, interest 7.375%, due October 2012.


 


$1,500,000,000
Senior Notes, interest 9.750%, due January 2014.


 


$500,000,000
Senior Notes, interest 7.750%, due April 2011.


 


AUD
200,000,000 Facility Agreement with each of Corporate Express Australia and
Australia New Zealand Banking Group Limited, ANZ National Bank Limited,
Commonwealth Bank of Australia, National Australia Bank Limited and Westpac
Banking Corporation.


 


$80,000,000
Letter of Credit and Reimbursement Agreement between Staples, Inc. and
U.S. Bank National Association and Sumitomo Bank.


 


EUR
100,000,000 Letter of Credit Arrangement with DeutscheBank and Staples, Inc.


 


Approximately
$102,000,000 in the aggregate of local lines of credit entered in the ordinary
course of business in China, India, Argentina, and Brazil.


 

















 


SCHEDULE 7.2


 


Existing Liens


 


None.


 

















 


SCHEDULE 7.3


 


Existing Investments


 


None.


 
















 


SCHEDULE 18


 


Administrative
Agent’s Office;

Certain Addresses For Notices


 


STAPLES, INC.:


500 Staples Drive


Framingham, Massachusetts 01702


Attention: 
Treasurer


Telephone: 
(508) 253-2537


Telecopier: (508) 305-3710


Electronic mail: 
lisa.scopa@staples.com


Website Address:                                               www.staples.com


U.S. Taxpayer Identification Number: 04-2896127


 


ADMINISTRATIVE AGENT:


 


Administrative Agent’s Office


(for payments and Loan Requests):


Bank
of America, N.A.


2001
Clayton Road


Mail
Code: CA4-702-02-25

Concord, CA 94520-2405


Attention: Yamila Faamausili


Telephone: (925) 675-8075


Telecopier: (888) 969-9252


Electronic Mail: 
yamila.faamausili@baml.com


Account No.:3750836479


Ref:  Staples


ABA# 026009593


 


Other Notices as Administrative Agent:


Bank
of America, N.A.

Agency Management

335 Madison Avenue


Mail
Code: NY1-503-04-03

New York, NY 10017


Attention: Steven Gazzillo


Telephone: (646) 556-0328


Telecopier: (212) 901-7842


Electronic Mail: 
steven.gazzillo@baml.com


 

















 


ADMINISTRATIVE AGENT AS LENDER OF
SWING LINE LOANS:


 


Bank
of America, N.A.


2001
Clayton Road


Mail
Code: CA4-702-02-25

Concord, CA 94520-2405


Attention: Yamila Faamausili


Telephone: (925) 675-8075


Telecopier: (888) 969-9252


Electronic Mail: 
yamila.faamausili@baml.com


Account No.:3750836479


Ref:  Staples


ABA# 026009593


 


ISSUING BANKS:


 


Bank
of America, N.A.


Trade Operations


1
Fleet Way


Mail
Code:PA6-580-02-30


Scranton,
PA 18507


Attention: Michael Grizzanti


Telephone: (570) 330-4214


Telecopier: (800) 755-87543


Electronic Mail: 
michael.a.grizzanti@baml.com


 


Barclays
Bank PLC


200
Park Avenue


New
York, NY 10166


Attention:
Letters of Credit Department / Dawn Townsend


Telephone:
(201) 499-2081


Telecopier:
(212) 412-5011


Electronic
Mail:  dawn.townsend@barcap.com


 


HSBC
Bank USA, National Association


452
5th Avenue


8th
Floor


New York, NY 10018


Attention: Catherine Dong


Telephone: (212) 525-2456


Telecopier: (212) 642-1816


Electronic Mail: 
catherine.dong@us.hsbc.com


 
















 


EXHIBIT A


 


FORM OF LOAN REQUEST


 


STAPLES, INC.

500 Staples Drive

Framingham, Massachusetts 01702


 


[                              ,
20    ]


 


 


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

2001 Clayton Road


Mail
Code: CA4-702-02-25

Concord, CA 94520-2405


Attention: Yamila Faamausili


 


Ladies
and Gentlemen:


 


Reference
is hereby made to that certain Credit Agreement dated as of November 4,
2010 (as the same may be amended, amended and restated, supplemented or
otherwise modified and in effect from time to time, the “Credit  Agreement”),
by and among Staples, Inc. (the “Borrower”), the Lenders listed on
Schedule 1 thereto (the “Lenders”), Bank of America, N.A., as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), as the lender of Swing Line Loans, and as an Issuing Bank,
Barclays Capital and HSBC Bank USA, National Association, as co-syndication
agents for the Lenders and each as an Issuing Bank, and Wells Fargo Bank,
National Association and JPMorgan Chase Bank, N.A., as co-documentation agents
for the Lenders. Capitalized terms which are used herein without definition and
which are defined in the Credit Agreement shall have the same meanings herein
as in the Credit Agreement.


 


Pursuant
to §2.2 of the Credit Agreement, we hereby request that a Loan consisting of [a
Base Rate Loan in the principal amount of
$                    ,
or a Eurocurrency Rate Loan in the
currency of
[                            ]
and in the principal amount of                     
with an Interest Period of
                  ]
be made on
                    
    , 20    .  We understand that this request is
irrevocable and binding on us and obligates us to accept the requested Loan on
such date.


 


We
hereby certify that (a) the aggregate outstanding principal amount of the
Dollar Equivalent of Loans on today’s date, excluding this borrowing and any
Loans to be repaid contemporaneously with this borrowing of Loans or other
Loans made today, is
$                  ,
the aggregate outstanding principal amount of the Swing Line Loans on today’s
date, including any Swing Line Loans to be made today but excluding any Swing
Line Loans to be repaid contemporaneously with this borrowing of Loans or other
Loans made today, is
$                  ,
and the sum of the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations on today’s date is
$                  ,
(b) the aggregate outstanding principal amount of the Dollar 


 

















 


Equivalent
of Loans denominated in Alternative Currencies on today’s date, excluding this borrowing
and any such Loans to be repaid contemporaneously with this borrowing of Loans
or other Loans made today, is
$                  ,
and the sum of the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations with respect to Letters of Credit denominated in Alternative
Currencies on today’s date is
$                  ,
(c) we will use the proceeds of the requested Loan in accordance with the
provisions of the Credit Agreement, (d) each of the representations and
warranties contained in the Credit Agreement or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement was true as of
the date as of which it was made and is true at and as of the date hereof
(except to the extent of changes resulting from transactions contemplated or
permitted by the Credit Agreement and changes occurring in the ordinary course
of business that singly or in the aggregate are not materially adverse, and to
the extent that such representations and warranties related expressly to an earlier
date[, and excluding the representation and warranty contained in §5.5 of the
Credit Agreement](1)) and (e) no Default or Event of Default has occurred
and is continuing.


 


	
   

  	
  Very
  truly yours,

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STAPLES, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 






(1) 
The bracketed language in clause (d) shall be excluded if the Senior Debt
Rating is lower than the Senior Debt Rating Threshold as of the date hereof.


 


2
















 


EXHIBIT  B


 


FORM OF GUARANTY


 


This
GUARANTY, dated as of November 4, 2010
(this “Guaranty”), by STAPLES THE
OFFICE SUPERSTORE, LLC, a Delaware limited liability company, STAPLES THE OFFICE SUPERSTORE EAST, INC., a Delaware
corporation, STAPLES CONTRACT & COMMERCIAL, INC.,
a Delaware corporation, and STAPLES THE OFFICE
SUPERSTORE, LIMITED PARTNERSHIP, a Massachusetts limited
partnership, and any other Person (as defined in the Credit Agreement, as
defined below) that may become a Guarantor hereunder pursuant to a duly
executed Joinder Agreement (as defined in the Credit Agreement) (collectively,
the “Guarantors”), is in favor of (i) Bank
of America, N.A. (“Bank  of  America”), as administrative
agent (in such capacity, the “Administrative  Agent”) for itself and the other lending institutions (collectively,
the “Lenders”) which are or may
become parties to that certain Credit Agreement (as amended, amended and
restated, supplemented or otherwise modified and in effect from time to time,
the “Credit  Agreement”), dated as of even date herewith by and
among Staples, Inc. (the “Company”), the Lenders, the Administrative
Agent, Bank of America as the lender of Swing Line Loans and as an Issuing
Bank, Barclays Capital and HSBC Bank USA, National Association, as co-syndication
agents for the Lenders and each as an Issuing Bank, and Wells Fargo Bank,
National Association and JPMorgan Chase Bank, N.A., as co-documentation agents
for the Lenders, and (ii) each of the Lenders.


 


WHEREAS, the Company and the Guarantors are members of a
group of related entities, the success of any one of which is dependent in part
on the success of the other members of such group;


 


WHEREAS, each of the Guarantors expects to receive
substantial direct and indirect benefits from the extensions of credit to the
Company by the Lenders pursuant to the Credit Agreement (which benefits are
hereby acknowledged);


 


WHEREAS, it is a condition precedent to the Lenders’
willingness to make any loans or otherwise extend credit to the Company under
the Credit Agreement that the Guarantors execute and deliver to the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, a guaranty substantially in the form hereof; and


 


WHEREAS, the Guarantors wish to guaranty the Company’s
obligations to the Lenders and the Administrative Agent under or in respect of
the Credit Agreement as provided herein;


 


NOW, THEREFORE, in consideration of the premises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Guarantor hereby agrees with
the Lenders and the Administrative Agent as follows:


 


§1.          Definitions.  The term “Obligations”
and all other capitalized terms used herein without definition shall have the
respective meanings provided therefor in the Credit Agreement.


 


§2.          Guaranty of Payment and
Performance.  Each of the
Guarantors hereby jointly and severally guarantees to the Lenders and the
Administrative Agent the full and punctual


 

















 


payment when due (whether at stated maturity, by
required pre-payment, by acceleration or otherwise), as well as the
performance, of all of the Obligations including all such which would become
due but for the operation of the automatic stay pursuant to §362(a) of the
Federal Bankruptcy Code and the operation of §§502(b) and 506(b) of the Federal
Bankruptcy Code.  This Guaranty is an
absolute, unconditional and continuing guaranty of the full and punctual
payment and performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that the
Administrative Agent or any Lender first attempt to collect any of the
Obligations from the Company or resort to any collateral security or other
means of obtaining payment.  Should the
Company default in the payment or performance of any of the Obligations, the
obligations of each of the Guarantors hereunder with respect to such
Obligations in default shall, upon demand by the Administrative Agent, become
immediately due and payable to the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, without demand or notice of any nature,
all of which are expressly waived by each of the Guarantors.  Payments by any Guarantor hereunder may be
required by the Administrative Agent on any number of occasions.  All payments by the Guarantors hereunder
shall be made to the Administrative Agent, in the manner and at the place of
payment specified therefor in the Credit Agreement, for the account of the
Lenders and the Administrative Agent. Anything contained herein to the contrary
notwithstanding, the obligations of the Guarantors hereunder at any time shall
be limited to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of the Bankruptcy Code (Title 11, United States
Code) or any comparable provisions of any similar federal or state law.


 


§3.          Guarantors’ Agreement to
Pay Enforcement Costs.  Each of the
Guarantors further agrees, as the principal obligor and not as a guarantor
only, to pay to the Administrative Agent, on demand, all costs and expenses
(including court costs and legal expenses) incurred or expended by the
Administrative Agent or any Lender in connection with the Obligations, this
Guaranty and the enforcement thereof, together with interest on amounts
recoverable under this §3 from the time when such amounts become due until
payment, whether before or after judgment, at the rate of interest for overdue
principal set forth in the Credit Agreement, provided that if such
interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.


 


§4.          Waivers by Guarantors;
Lender’s Freedom to Act.  The Guarantors
agree that the Obligations will be paid and performed strictly in accordance
with their respective terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any Lender with respect thereto.  Each of the Guarantors waives promptness,
diligence, presentment, demand, protest, notice of acceptance, notice of any
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of assets
of the Company or any other entity or other person primarily or secondarily
liable with respect to any of the Obligations, and all suretyship defenses
generally.  Without limiting the
generality of the foregoing, each of the Guarantors agrees to the provisions of
any instrument evidencing, securing or otherwise executed in connection with
any Obligation and agrees that the obligations of such Guarantor hereunder
shall not be released or discharged, in whole or in part, or otherwise affected
by (i) the failure of the Administrative Agent or any Lender to assert any
claim or demand or to enforce


 


2

















 


any right or remedy against the Company or any other
entity or other person primarily or secondarily liable with respect to any of
the Obligations; (ii) any extensions, compromise, refinancing, consolidation or
renewals of any Obligation; (iii) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments or modifications of any of the
terms or provisions of the Credit Agreement, the Notes, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any of the Obligations; (iv) the addition, substitution or
release of any entity or other person primarily or secondarily liable for any
Obligation; (v) the adequacy of any rights which the Administrative Agent or
any Lender may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (vi) the impairment of any collateral
securing any of the Obligations, including without limitation the failure to
perfect or preserve any rights which the Administrative Agent or any Lender
might have in such collateral security or the substitution, exchange,
surrender, release, loss or destruction of any such collateral security; or
(vii) any other act or omission which might in any manner or to any extent vary
the risk of such Guarantor or otherwise operate as a release or discharge of
such Guarantor, all of which may be done without notice to such Guarantor.  To the fullest extent permitted by law, each
of the Guarantors hereby expressly waives any and all rights or defenses
arising by reason of (A) any “one action” or “anti-deficiency” law which would
otherwise prevent the Administrative Agent or any Lender from bringing any
action, including any claim for a deficiency, or exercising any other right or
remedy (including any right of set-off), against such Guarantor before or after
the Administrative Agent’s or such Lender’s commencement or completion of any
foreclosure action, whether judicially, by exercise of power of sale or
otherwise, or (B) any other law which in any other way would otherwise require
any election of remedies by the Administrative Agent or any Lender.


 


§5.          Unenforceability of
Obligations Against Company.  If for any
reason the Company has no legal existence or is under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Company by reason of the Company’s insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on each of the Guarantors
to the same extent as if such Guarantor at all times had been the principal obligor
on all such Obligations.  In the event
that acceleration of the time for payment of any of the Obligations is stayed
upon the commencement of any case or other proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, or for any other reason, all
such amounts otherwise subject to acceleration under the terms of the Credit
Agreement, the Notes, the other Loan Documents or any other agreement evidencing,
securing or otherwise executed in connection with any Obligation shall be
immediately due and payable by the Guarantors.


 


§6.          Subrogation; Subordination.


 


§6.1        Waiver
of Rights Against Company.  Until the final
payment and performance in full of all of the Obligations, the Guarantors shall
not exercise and hereby waive any rights against the Company arising as a
result of payment by the Guarantors hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not prove any
such claim in competition with the Administrative Agent or any Lender in
respect of any payment hereunder in any bankruptcy, insolvency or


 


3

















 


reorganization case or
proceedings of any nature; the Guarantors will not claim any setoff, recoupment
or counterclaim against the Company in respect of any liability of the
Guarantors to the Company (with respect to such claim); and the Guarantors
waive any benefit of and any right to participate in any collateral security
which may be held by the Administrative Agent or any Lender. If any amounts are
paid to any Guarantor in violation of the foregoing limitation, then such
amounts shall be held in trust for the benefit of the Administrative Agent and
the Lenders and shall forthwith be paid to the Administrative Agent for the
benefit of the Lenders and the Administrative Agent, on account of the
Obligations without affecting in any manner the liability of the Guarantors
under the other provisions of this Guaranty.


 


§6.2        Subordination.  The payment of any amounts
due with respect to any indebtedness of the Company for money borrowed or
credit received now or hereafter owed to the Guarantors is hereby subordinated
to the prior payment in full of all of the Obligations.  Each of the Guarantors agrees that, after the
occurrence of any Event of Default, such Guarantor will not demand, sue for or
otherwise attempt to collect any such indebtedness of the Company to such
Guarantor until all of the Obligations shall have been indefeasibly paid in
full.  If, notwithstanding the foregoing
sentence, the Guarantors shall collect, enforce or receive any amounts in
respect of such indebtedness while any Obligations are still outstanding, such
amounts shall be collected, enforced and received by such Guarantor as trustee
for the Lenders and the Administrative Agent and be paid over to the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, on account of the Obligations without affecting in any manner the liability
of the Guarantors under the other provisions of this Guaranty.


 


§6.3        Provisions
Supplemental.  The provisions
of this §6 shall be supplemental to and not in derogation of any rights and
remedies of the Lenders and the Administrative Agent under any separate
subordination agreement which the Administrative Agent may at any time and from
time to time enter into with the Guarantors for the benefit of the Lenders and
the Administrative Agent.


 


§7.          Setoff.  Regardless of
the adequacy of any collateral, during the continuance of any Event of Default,
any deposits or other sums credited by or due from the Administrative Agent,
any of the Lenders or any of the Subsidiaries of the holding company owning the
Administrative Agent or any Lender to any Guarantor, may be applied to or set
off by the Administrative Agent, such Lender or such Subsidiary of the holding
company owning the Administrative Agent or such Lender against the obligations
of such Guarantor under this Guaranty, whether or not the Administrative Agent
or such Lender shall have made any demand under this Guaranty.


 


§8.          Contribution. 
To the extent any of the Guarantors makes a payment hereunder in excess
of the aggregate amount of the benefit received by such Guarantor in respect of
the extensions of credit under the Credit Agreement (the “Benefit Amount”), then such Guarantor, after the payment in full in
cash of all of the Obligations shall be entitled to recover from each other
Guarantor such excess payment, pro rata in
accordance with the ratio of the Benefit Amount received by such other
Guarantor to the total Benefit Amounts received by each of the Guarantors, and
the right to such recovery shall be deemed to be an asset and property of such


 


4

















 


Guarantor so funding; provided that all such
rights to recovery shall be subordinate and junior in right of payment to the
final and indefeasible repayment in full in cash of all of the Obligations.


 


§9.          Further Assurances.  Each of the Guarantors
agrees that it will from time to time, at the request of the Administrative
Agent, do all such things and execute all such documents as the Administrative
Agent may consider necessary or desirable to give full effect to this Guaranty
and to perfect and preserve the rights and powers of the Lenders and the
Administrative Agent hereunder.  Each of
the Guarantors acknowledges and confirms that such Guarantor itself has
established its own adequate means of obtaining from the Company on a
continuing basis all information desired by such Guarantor concerning the
financial condition of the Company and that such Guarantor will look to the
Company and not to the Administrative Agent or any Lender in order for such
Guarantor to keep adequately informed of changes in the Company’s financial
condition.


 


§10.        Termination; Reinstatement.  This Guaranty shall remain
in full force and effect until the earlier of (a) the payment and performance
in full of the Obligations and the termination of all credit commitments of the
Administrative Agent, the Issuing Lenders, and the Lenders in respect thereof
(including all outstanding Letters of Credit) or (b) with respect to one or
more particular Guarantors or to all of the Guarantors, such Guarantor or
Guarantors are released from their obligations hereunder in accordance with,
and subject to the terms of, §4.14 of the Credit Agreement.  This Guaranty shall continue to be effective
or be reinstated notwithstanding any termination under clause (a) of the
preceding sentence if at any time any payment made or value received with
respect to any Obligation is rescinded or must otherwise be returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy or
reorganization of the Company, or otherwise, all as though such payment had not
been made or value received.


 


§11.        Successors and Assigns.  This Guaranty shall be
binding upon each of the Guarantors, its successors and assigns, and shall
inure to the benefit of the Administrative Agent and the Lenders and their
respective successors, transferees and assigns. 
Without limiting the generality of the foregoing sentence, each Lender
may assign or otherwise transfer the Credit Agreement, its Notes, the other
Loan Documents or any other agreement or note held by it evidencing, securing
or otherwise executed in connection with the Obligations, or sell
participations in any interest therein, to any other Person, and such other
Person shall thereupon become vested, to the extent set forth in the agreement
evidencing such assignment, transfer or participation, with all the rights in
respect thereof granted to such Lender herein, all in accordance with §17 of
the Credit Agreement.  The Guarantors may
not assign any of their obligations hereunder.


 


§12.        Amendments and Waivers.  No amendment or waiver of
any provision of this Guaranty nor consent to any departure by the Guarantors
therefrom shall be effective unless the same shall be in writing and signed by
the Administrative Agent and, subject to §13.10 of the Credit Agreement, with
the consent of all of the Lenders.  No
failure on the part of the Administrative Agent or any Lender to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right.


 


5

















 


§13.        Notices.  All notices and
other communications called for hereunder shall be made in writing and, unless
otherwise specifically provided herein, shall be deemed to have been duly made
or given when delivered by hand or mailed first class, postage prepaid, or, in
the case of notice sent by telegraph, telecopy, facsimile or telex, when
transmitted, answer back received, addressed as follows:  if to the Guarantors, at the address set
forth beneath their respective signatures hereto, and if to the Administrative
Agent, at the address for notices to the Administrative Agent set forth in §18 of
the Credit Agreement, or at such address as either party may designate in
writing to the other.


 


§14.        Governing Law; Consent to
Jurisdiction.  THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF
LAWS).  Each of the Guarantors agrees
that any suit for the enforcement of this Guaranty may be brought in the courts
of the State of New York or any federal court sitting therein and consents to
the nonexclusive jurisdiction of such court and to service of process in any
such suit being made upon such Guarantor by mail at the address specified by
reference in §13 hereof. Each of the Guarantors hereby waives any objection
that it may now or hereafter have to the venue of any such suit or any such
court or that such suit was brought in an inconvenient court.


 


§15.        Waiver of Jury Trial.  Each of the GUARANTORS, AND THE LENDERS AND
THE ADMINISTRATIVE AGENT, BY THEIR ACCEPTANCE OF THIS GUARANTY, HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS.  Except as prohibited by law, each of the Guarantors
hereby waives any right which it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages.  Each of the Guarantors (a)
certifies that neither the Administrative Agent or any Lender nor any
representative, agent or attorney of the Administrative Agent or any Lender has
represented, expressly or otherwise, that the Administrative Agent or any
Lender would not, in the event of litigation, seek to enforce the foregoing
waivers and (b) acknowledges that, in entering into the Credit Agreement and
the other Loan Documents to which the Administrative Agent or any Lender is a
party, the Administrative Agent and the Lenders are relying upon, among other
things, the waivers and certifications contained in this §15.


 


§16.        Miscellaneous.  This Guaranty
constitutes the entire agreement of each of the Guarantors with respect to the
matters set forth herein.  The rights and
remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement, and this Guaranty shall be in addition
to any other guaranty of or collateral security for any of the
Obligations.  The invalidity or unenforceability
of any one or more sections of this Guaranty shall not affect the validity or
enforceability of its remaining provisions. 
Captions are for the ease of reference only and shall not affect the
meaning of the relevant provisions.  The
meanings of all defined terms used in this Guaranty shall be equally applicable
to the singular and plural forms of the terms defined.


 


6

















 


IN WITNESS WHEREOF, each of the Guarantors has
caused this Guaranty to be executed and delivered as of the date first above
written.


 


	
   

  	
  STAPLES
  THE OFFICE SUPERSTORE, LLC

  
	
   

  	
  STAPLES
  THE OFFICE SUPERSTORE EAST, INC.

  
	
   

  	
  STAPLES
  CONTRACT & COMMERCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  500
  Staples Drive

  
	
   

  	
   

  	
  Framingham,
  MA 01702

  
	
   

  	
   

  	
  Facsimile:
  508-253-5485

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STAPLES
  THE OFFICE SUPERSTORE, LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By
  its general partner, Staples, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  500
  Staples Drive

  
	
   

  	
   

  	
  Framingham,
  MA 01702

  
	
   

  	
   

  	
  Facsimile:
  508-253-5485

  
				



 
















 


EXHIBIT C


 


FORM OF


COMPLIANCE CERTIFICATE


 


[Date]


 


To
the Lenders Party to the

Credit Agreement Referred to Below

c/o Bank of America, N.A, as Administrative Agent

Agency Management

335 Madison Avenue


Mail
Code: NY1-503-04-03

New York, NY 10017


Attention: Steven Gazzillo


 


Ladies
and Gentlemen:


 


Reference
is made to the Credit Agreement dated as of November 4, 2010 (as the same
may be amended, amended and restated, supplemented or otherwise modified and in
effect from time to time, the “Credit  Agreement”), by and among
Staples, Inc. (the “Borrower”), the Lenders listed on Schedule 1
thereto (the “Lenders”), Bank of America, N.A., as administrative agent
for the Lenders (in such capacity, the “Administrative  Agent”),
as the lender of Swing Line Loans, and as an Issuing Bank, Barclays Capital and
HSBC Bank USA, National Association, as co-syndication agents for the Lenders
and each as an Issuing Bank, and Wells Fargo Bank, National Association and
JPMorgan Chase Bank, N.A., as co-documentation agents for the Lenders.  Capitalized terms used herein without
definition and which are defined in the Credit Agreement shall have the
respective meanings assigned to such terms in the Credit Agreement.


 


Pursuant
to [§6.4(a)] [§6.4(b)] of the Credit Agreement, the chief financial officer or
treasurer of the Borrower, on behalf of the Borrower, hereby certifies to each
of you as follows: (a) to the best of the undersigned’s knowledge, the
financial statements delivered herewith fairly present the financial condition,
results of operations and cash flows of the Borrower and its Subsidiaries and
were prepared in accordance with GAAP applied on a basis consistent with prior
periods (except, in the case of quarterly statements, for provisions for
footnotes and subject to year end adjustments and, in all cases, except as
disclosed therein); (b) to the best of the undersigned’s knowledge, the
information furnished in the calculations attached hereto was true and correct
as of the last day of the fiscal [year] [quarter] next preceding the date of
this certificate; and (c) to the best of the undersigned’s knowledge, as
of the date of this certificate, there exists no Default or Event of Default.


 

















 


IN WITNESS WHEREOF, the undersigned officer
has executed this Compliance Certificate as of the date first written above.


 


	
   

  	
  STAPLES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


COMPLIANCE CERTIFICATE WORKSHEET


 


Financial Covenants


 


For the period ended
                ,
20  


 


	
  I.

  	
  Section 8.1
  - Fixed Charge Coverage Ratio (reported quarterly)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  For
  the period of four consecutive fiscal quarters then ended (the “Measurement
  Period”):

  	
   

  



 


	
   

  	
  A.              Consolidated EBIT:

  	
  $                    

  
	
   

  	
   

  	
   

  
	
   

  	
  B.               Rental Expense:

  Obligations under store rental agreements or leases of real property
  (excluding

  Capitalized Leases and Synthetic Leases):

  	
   

  

  $                    

  
	
   

  	
   

  	
   

  
	
   

  	
  C.               Sum of A plus B:

  	
  $                    

  
	
   

  	
   

  	
   

  
	
   

  	
  D.               Consolidated Total
  Interest Expense:

  	
  $                    

  
	
   

  	
   

  	
   

  
	
   

  	
  E.               Rental Expense (from B)

  	
  $                    

  
	
   

  	
   

  	
   

  
	
   

  	
  F.               Sum of D plus E:

  	
  $                    

  
	
   

  	
   

  	
   

  
	
   

  	
  G.               Ratio of C to F:

  	
    
                :1

  
	
   

  	
   

  	
   

  
	
   

  	
  H.               Minimum
  required ratio for Measurement Period:

  	
     1.50 : 1

  



 

















 


	
  II.

  	
  Section 8.2
  — Adjusted Funded Debt to Total Capitalization Ratio (reported quarterly)

  	
   

  



 


	
   

  	
  A.              Consolidated Adjusted Funded Debt:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.             Consolidated
  Total Funded Debt:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)              Indebtedness relating to
  the borrowing of money or obtaining of credit:

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)              Deferred purchase price of
  assets:

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)              Obligations under Synthetic
  Leases and Capitalized Leases:

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  (d)              Permitted Securitization
  Transactions:

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  (e)              Guarantees of the above
  type of Indebtedness (a-d):

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  (f)               Sum of (1)(a) plus
  (1)(b) plus (1)(c) plus (1)(d) plus
  (1)(e):

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  2.             Rental Expense for period of 12 consecutive
  months then ended

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  3.             A(2) multiplied by eight (8)

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  4.             Sum of A(1)(f) plus
  A(3)

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  B.               Stockholders’ Equity:

  	
  $                      

  
	
   

  	
   

  	
   

  
	
   

  	
  C.               Ratio of A(4) to A(4) plus
  B:

  	
    
              :1

  
	
   

  	
   

  	
   

  
	
   

  	
  D.               Maximum
  required ratio:

  	
     0.75 : 1

  



 
















 


EXHIBIT D


 


FORM OF ASSIGNMENT AND ACCEPTANCE


 


This
Assignment and Acceptance (this “Assignment  and  Acceptance”)
is dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the “Assignor”)
and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as the same may be amended, amended and restated, supplemented or otherwise
modified and in effect from time to time, the “Credit  Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Acceptance as if set forth
herein in full.


 


For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (a) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including without limitation any letters of
credit, guarantees, and swingline loans included in such facilities) and (b) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (a) above (the rights and obligations sold and
assigned pursuant to clauses (a) and (b) above being referred to herein
collectively as the “Assigned  Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Acceptance, without representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  
	
   

  	
   

  	
  [and
  is an Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:
  Staples, Inc.

  



 






(1)  Select as applicable.


 

















 


	
  4.

  	
   

  	
  Administrative
  Agent: Bank of America, N.A., as the administrative agent under the Credit
  Agreement

  
	
   

  	
   

  	
   

  
	
  5.          Credit
  Agreement:

  	
   

  	
  The
  Credit Agreement, dated as of November 4, 2010, by and among the Borrower,
  the Lenders listed on Schedule 1 thereto (the “Lenders”), the Administrative
  Agent, Bank of America, N.A. as the lender of Swing Line Loans and as an
  Issuing Bank, Barclays Capital and HSBC Bank USA, National Association, as
  co-syndication agents for the Lenders and each as an Issuing Bank, and Wells
  Fargo Bank, National Association and JPMorgan Chase Bank, N.A., as
  co-documentation agents for the Lenders

  
	
   

  	
   

  	
   

  
	
  6.          Assigned
  Interest:

  	
   

  	
   

  



 


	
  Aggregate Amount of

  Commitment/Loans for all

  Lenders*

  	
   

  	
  Amount of Commitment/Loans

  Assigned*

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(2)

  
	
  $

  	
   

  	
  $

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
  %

  



 


	
  [7.          Trade
  Date:

  	
   

  	
  ](3)

  



 


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


 






*
Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.


(2)  Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.


(3)  To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.


 

















 


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


 


	
   

  	
  ASSIGNOR

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
				



 


 


Consented
to and Accepted:


 


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

lender of the Swing Line Loans and an Issuing Bank]


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


	
  [Consented

  	
   

  
	
   

  	
   

  
	
  BARCLAYS
  BANK PLC, as an Issuing Bank

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  	
   

  
	
  as an Issuing Bank

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:](4)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Staples, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:](5)

  	
   

  



 






(4)
 Include if Issuing Banks’ consent is
required under Credit Agreement.


(5)
Include if Borrower’s consent is required under Credit Agreement.


 


4

















 


ANNEX 1


 


The Credit Agreement dated as of November 4, 2010, among Staples, Inc.,
the Lenders parties thereto, Bank of America, N.A., as Administrative Agent,
and the other agents parties thereto


 


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ACCEPTANCE


 


1.             Representations and Warranties.


 


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


 


1.2           Assignee. 
The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Acceptance and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all the
requirements of to be an assignee under §17.2(c), (e) and (f) of the Credit
Agreement (subject to receipt of such consents as may be required under the
Credit Agreement), (iii) from and after the Effective Date, it shall be bound
by the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets of such type, (v) it has received
a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered
pursuant to §§5.4 and 6.4  thereof, as
applicable, and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Acceptance and to purchase the Assigned Interest, (vi) it has, independently
and without reliance on the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Acceptance and
to purchase the Assigned Interest, and (vii) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and 


 

















 


information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


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


 


3.             General Provisions.  This Assignment and Acceptance shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.  This
Assignment and Acceptance may be executed in any number of counterparts, which
together shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Acceptance by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Acceptance.  This Assignment and Acceptance shall be
governed by, and construed in accordance with, the laws of the State of New
York (excluding the laws applicable to conflicts or choice of laws).


 


2
















 


EXHIBIT E


 


FORM OF SWING LINE LOAN REQUEST


 


STAPLES, INC.

500 Staples Drive

Framingham, Massachusetts 01702


 


 


[                    
    , 20    ]


 


Bank
of America, as Administrative Agent

2001 Clayton Road


Mail
Code: CA4-702-02-25

Concord, CA 94520-2405


Attention: Yamila Faamausili


 


Ladies
and Gentlemen:


 


Reference
is hereby made to that certain Credit Agreement dated as of November 4,
2010 (as the same may be amended, amended and restated, supplemented or
otherwise modified and in effect from time to time, the “Credit  Agreement”),
by and among Staples, Inc. (the “Company”), the Lenders listed on
Schedule 1 thereto (the “Lenders”), Bank of America, N.A., as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), as the lender of Swing Line Loans, and as an Issuing Bank,
Barclays Capital and HSBC Bank USA, National Association, as co-syndication
agents for the Lenders and each as an Issuing Bank, and Wells Fargo Bank,
National Association and JPMorgan Chase Bank, N.A., as co-documentation agents
for the Lenders.  Capitalized terms which
are used herein without definition and which are defined in the Credit
Agreement shall have the same meanings herein as in the Credit Agreement.


 


Pursuant
to §2.10.2 of the Credit Agreement, we hereby request that a Swing Line Loan in
the principal amount of
$                    ,
be made on [Drawdown Date].  The Swing
Line Loan Maturity Date relating to such Swing Line Loan shall be [
         ].  We understand that this request is
irrevocable and binding on us and obligates us to accept the requested Swing
Line Loan on such date.


 


We
hereby certify that (a) the Dollar Equivalent of the aggregate outstanding
principal amount of the Loans on today’s date, including amounts to be borrowed
today but excluding any Loans to be repaid contemporaneously with this
borrowing of Swing Line Loans or other Loans made today, is
$                  ,
the aggregate outstanding principal amount of the Swing Line Loans as of today’s
date, including this borrowing but excluding any Swing Line Loans to be repaid
contemporaneously with this borrowing of Swing Line Loans or other Loans made
today, is
$                  ,
and the sum of the Maximum Drawing Amount and all Unpaid Reimbursement 


 

















 


Obligation
on today’s date is
$                ,
(b) we will use the proceeds of the requested Swing Line Loan in
accordance with the provisions of the Credit Agreement, (c) each of the
representations and warranties contained in the Credit Agreement or in any
document or instrument delivered pursuant to or in connection with the Credit
Agreement was true as of the date as of which it was made and is true at and as
of the date hereof (except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties related
expressly to an earlier date[, and excluding the representation and warranty
contained in §5.5 of the Credit Agreement](1)) and (d) no Default or Event
of Default has occurred and is continuing.


 


	
   

  	
  Very
  truly yours,

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STAPLES, INC.

  	
   

  
	
   

  	
   

   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 






(1) 
The bracketed language in clause (c) shall be excluded if the Senior Debt
Rating is lower than the Senior Debt Rating Threshold as of the date hereof.


 


2
















 


EXHIBIT F


 


JOINDER AGREEMENT AND AFFIRMATION


 


This
Joinder Agreement and Affirmation (this “Joinder  Agreement”)
dated as of
                              
        , 20     is
executed and delivered by [                                    ]
(the “New  Guarantor”), pursuant to §§4.14 and 6.13 of
the Credit Agreement dated as of November 4, 2010 (as the same may be amended,
amended and restated, supplemented or otherwise modified and in effect from
time to time, the “Credit  Agreement”), by and among Staples, Inc.
(the “Borrower”), the Lenders listed on Schedule 1 thereto (the “Lenders”),
Bank of America, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative  Agent”), as the lender of Swing
Line Loans, and as an Issuing Bank, Barclays Capital and HSBC Bank USA,
National Association, as co-syndication agents for the Lenders and each as an
Issuing Bank, and Wells Fargo Bank, National Association and JPMorgan Chase
Bank, N.A., as co-documentation agents for the Lenders.  Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such in the Credit
Agreement.


 


WHEREAS, the New Guarantor wishes to guaranty the Borrower’s
payments and performance of the Obligations and to become party to the Guaranty
dated as of November 4, 2010 (the “Guaranty”) by Staples the Office
Superstore, LLC, Staples The Office Superstore East, Inc., Staples Contract
& Commercial, Inc. and Staples the Office Superstore, Limited Partnership
(collectively, the “Guarantors”) in favor of the Administrative Agent
and the Lenders;


 


NOW THEREFORE, the New Guarantor hereby agrees with the
Lenders and the Administrative Agent as follows:


 


§1.           Joinder to Guaranty.  The New Guarantor hereby guarantees the full
and punctual payment when due (whether at stated maturity, by required
prepayment, by acceleration or otherwise), as well as the performance, of all
of the Obligations (subject to the limitations contained in the Guaranty) and,
by executing and delivering this Joinder Agreement, does hereby join and become
a party to the Guaranty as a “Guarantor” (as defined in the Guaranty)
thereunder, assuming all of the obligations and liabilities of a “Guarantor”
(as defined in the Guaranty) thereunder, including without limitation,
guaranteeing all Obligations arising or incurred after the Closing Date.  The New Guarantor hereby agrees to comply
with, and be bound by, all of the terms and conditions of the Guaranty in all
respects as an original “Guarantor” (as defined in the Guaranty) thereunder, as
if such New Guarantor were an original signatory thereto.


 


§2.           Conditions to Effectiveness.  Upon satisfaction of the following
conditions, this Joinder Agreement shall be deemed effective as of the date
hereof (the “Effective  Date”):


 


(a)           Joinder Agreement. 
The Administrative Agent shall have received this Joinder Agreement duly
executed by the New Guarantor and this Joinder Agreement shall be in full force
and effect.


 

















 


(b)           Officer’s Certificate for New Guarantor.  The Administrative Agent shall have received
a certificate of an authorized officer of the New Guarantor, dated as of the
date hereof, certifying as to (i) its [Certificate of Partnership/Certificate
of Formation /Certificate of Incorporation] certified as of a recent date by
the Secretary of State of the state of its organization, including all
amendments thereto, (ii) a true and correct copy of its [Partnership
Agreement/Operating Agreement/By Laws], including all amendments thereto, (iii)
the corporate actions taken by the New Guarantor or on its behalf authorizing
the execution, delivery, and performance of this Joinder Agreement and all
related documents, and (iv) the names, titles, incumbency, and specimen
signatures of the officers of the New Guarantor authorized to sign this Joinder
Agreement and all related documents on behalf of the New Guarantor, in form and
substance satisfactory to the Administrative Agent.


 


(c)           Good Standing Certificate.  The Administrative Agent shall have received
a certificate as to the legal existence and good standing of the New Guarantor
from the Secretary of State of the state of its organization and, to the extent
different, a certificate of good standing from the Secretary of State of the
state where its chief headquarters are located, in each case dated as of a
recent date.


 


(d)           Legal Opinion. 
The Administrative Agent shall have received an opinion from counsel to
the New Guarantor as to the due authorization and enforceability of this
Joinder Agreement, the due organization, legal existence and good standing of
the New Guarantor in its state of its organization, in form and substance
satisfactory to the Administrative Agent.


 


§3.           Schedule 2 to the Credit Agreement.  Pursuant to §4.14 of the Credit Agreement, Schedule
2 to the Credit Agreement shall be replaced as of the Effective Date by Schedule
2 attached hereto.


 


§4.           Representations and Warranties.  The New Guarantor represents and warrants to
the Administrative Agent and the Lenders that it has the requisite authority to
execute and deliver this Joinder Agreement and to perform all of the
obligations hereunder and of a Guarantor under the Guaranty and the Credit
Agreement, and the New Guarantor hereby makes, as to itself, all of the
representations and warranties made in the Guaranty and the Credit Agreement by
any Guarantor.


 


§5.           Governing Law. 
This Joinder Agreement shall be governed by and construed in accordance
with the laws of the State of New York (excluding the laws applicable to
conflicts or choice of laws).


 


§6.           Miscellaneous. 
This Joinder Agreement shall be binding upon the undersigned and its
successors and assigns and shall inure to the benefit of the Lenders, the
Administrative Agent and their respective successors and assigns.  This Joinder Agreement may be executed in any
number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which counterparts taken together shall be deemed to
constitute one and the same instrument.


 


[Remainder of page intentionally left blank.]


 


2

















 


IN
WITNESS WHEREOF, the undersigned has duly executed this Joinder Agreement as a
sealed instrument as of the date first set forth above.


 


	
   

  	
  [NEW
  GUARANTOR]

  
	
   

  	
   

   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Schedule 2