Exhibit
10.19


 




 





 


CREDIT AGREEMENT


 


DATED AS OF SEPTEMBER 30, 2005


 


AMONG


 


AMERIPRISE FINANCIAL, INC.,

as Borrower,


 


THE LENDERS LISTED HEREIN,

as Lenders,


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION,

as Administrative Agent,


 


CITIBANK, N.A.,

as Syndication Agent


 


and


 


BANK OF AMERICA, N.A.,


HSBC BANK USA, NATIONAL ASSOCIATION


and


WACHOVIA BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agents


 






 


WELLS FARGO BANK, NATIONAL
ASSOCIATION

and


CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arrangers and Joint Bookrunners


 




 





 

















 


TABLE OF CONTENTS


 


	
  SECTION 1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Certain Defined
  Terms.

  	
  1

  
	
  1.2

  	
  Accounting
  Terms; Utilization of GAAP for Purposes of Calculations Under Agreement.

  	
  21

  
	
  1.3

  	
  Other
  Definitional Provisions and Rules of Construction.

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNTS AND
  TERMS OF LOANS

  	
  22

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Loans; Making of
  Loans; the Register; Optional Notes; Bid Loans.

  	
  22

  
	
  2.2

  	
  Interest on the
  Loans.

  	
  31

  
	
  2.3

  	
  Fees.

  	
  34

  
	
  2.4

  	
  Repayments, Prepayments and Reductions of Revolving
  Loan Commitment Amount; General Provisions Regarding Payments.

  	
  35

  
	
  2.5

  	
  Use of Proceeds.

  	
  38

  
	
  2.6

  	
  Special
  Provisions Governing Eurodollar Rate Loans.

  	
  38

  
	
  2.7

  	
  Increased Costs;
  Taxes; Capital Adequacy.

  	
  40

  
	
  2.8

  	
  Statement of
  Lenders; Obligation of Lenders and Issuing Lenders to Mitigate.

  	
  44

  
	
  2.9

  	
  Replacement of a
  Lender.

  	
  45

  
	
  2.10

  	
  Increase in
  Commitments.

  	
  46

  
	
  2.11

  	
  Extension of
  Revolving Loan Commitment Termination Date.

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  LETTERS OF
  CREDIT

  	
  47

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Issuance of
  Letters of Credit and Lenders’ Purchase of Participations Therein.

  	
  47

  
	
  3.2

  	
  Letter of Credit
  Fees.

  	
  50

  
	
  3.3

  	
  Drawings and
  Reimbursement of Amounts Paid Under Letters of Credit.

  	
  50

  
	
  3.4

  	
  Obligations
  Absolute.

  	
  53

  
	
  3.5

  	
  Nature of
  Issuing Lenders’ Duties.

  	
  54

  
	
  3.6

  	
  Applicability of
  UCP.

  	
  54

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS TO
  LOANS AND LETTERS OF CREDIT

  	
  55

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Conditions to
  Closing.

  	
  55

  
	
  4.2

  	
  Conditions to
  Effective Date; All Loans.

  	
  57

  
	
  4.3

  	
  Conditions to
  Letters of Credit.

  	
  58

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  COMPANY’S
  REPRESENTATIONS AND WARRANTIES

  	
  59

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Organization,
  Powers, Qualification, Good Standing, Business and Subsidiaries.

  	
  59

  
	
  5.2

  	
  Authorization of
  Borrowing, etc.

  	
  59

  



 


i

















 


	
  5.3

  	
  Financial
  Condition.

  	
  60

  
	
  5.4

  	
  No Material
  Adverse Change.

  	
  60

  
	
  5.5

  	
  Title to
  Properties; Liens.

  	
  60

  
	
  5.6

  	
  Litigation;
  Adverse Facts.

  	
  61

  
	
  5.7

  	
  Payment of
  Taxes.

  	
  61

  
	
  5.8

  	
  Governmental
  Regulation.

  	
  61

  
	
  5.9

  	
  Securities
  Activities.

  	
  61

  
	
  5.10

  	
  Employee Benefit
  Plans.

  	
  61

  
	
  5.11

  	
  Environmental
  Protection.

  	
  62

  
	
  5.12

  	
  Solvency.

  	
  62

  
	
  5.13

  	
  Disclosure.

  	
  62

  
	
  5.14

  	
  Foreign Assets
  Control Regulations, etc.

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  AFFIRMATIVE
  COVENANTS

  	
  63

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Financial
  Statements and Other Reports.

  	
  63

  
	
  6.2

  	
  Existence, etc.

  	
  66

  
	
  6.3

  	
  Payment of Taxes
  and Claims.

  	
  66

  
	
  6.4

  	
  Maintenance of
  Properties; Insurance.

  	
  66

  
	
  6.5

  	
  Inspection
  Rights.

  	
  66

  
	
  6.6

  	
  Compliance with
  Laws, etc.

  	
  67

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE
  COVENANTS

  	
  67

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Liens and
  Related Matters.

  	
  67

  
	
  7.2

  	
  Acquisitions.

  	
  69

  
	
  7.3

  	
  Restricted
  Junior Payments.

  	
  69

  
	
  7.4

  	
  Financial
  Covenants.

  	
  69

  
	
  7.5

  	
  Restriction on
  Fundamental Changes; Asset Sales.

  	
  70

  
	
  7.6

  	
  Transactions
  with Affiliates.

  	
  70

  
	
  7.7

  	
  Conduct of
  Business.

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS OF
  DEFAULT

  	
  71

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Failure to Make
  Payments When Due.

  	
  71

  
	
  8.2

  	
  Default in Other
  Agreements.

  	
  71

  
	
  8.3

  	
  Breach of
  Certain Covenants.

  	
  71

  
	
  8.4

  	
  Breach of
  Warranty.

  	
  71

  
	
  8.5

  	
  Other Defaults
  Under Loan Documents.

  	
  72

  
	
  8.6

  	
  Involuntary
  Bankruptcy; Appointment of Receiver, etc.

  	
  72

  
	
  8.7

  	
  Voluntary
  Bankruptcy; Appointment of Receiver, etc.

  	
  72

  
	
  8.8

  	
  Judgments and
  Attachments.

  	
  73

  
	
  8.9

  	
  Dissolution.

  	
  73

  
	
  8.10

  	
  Employee Benefit
  Plans.

  	
  73

  
	
  8.11

  	
  Change in
  Control.

  	
  73

  
	
  8.12

  	
  Licensing.

  	
  73

  
	
  8.13

  	
  Certain
  Proceedings.

  	
  73

  



 


ii

















 


	
  8.14

  	
  Invalidity of
  Loan Documents; Repudiation of Obligations.

  	
  74

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  ADMINISTRATIVE
  AGENT

  	
  75

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Appointment.

  	
  75

  
	
  9.2

  	
  Powers and
  Duties; General Immunity.

  	
  75

  
	
  9.3

  	
  Independent
  Investigation by Lenders; No Responsibility For Appraisal of
  Creditworthiness.

  	
  77

  
	
  9.4

  	
  Right to
  Indemnity.

  	
  77

  
	
  9.5

  	
  Resignation of
  Agents; Successor Administrative Agent and Swing Line Lender.

  	
  77

  
	
  9.6

  	
  Duties of Other
  Agents.

  	
  78

  
	
  9.7

  	
  Administrative
  Agent May File Proofs of Claim.

  	
  78

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  79

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Successors and
  Assigns; Assignments and Participations in Loans and Letters of Credit.

  	
  79

  
	
  10.2

  	
  Expenses.

  	
  82

  
	
  10.3

  	
  Indemnity.

  	
  83

  
	
  10.4

  	
  Set-Off.

  	
  83

  
	
  10.5

  	
  Ratable Sharing.

  	
  84

  
	
  10.6

  	
  Amendments and
  Waivers.

  	
  85

  
	
  10.7

  	
  Independence of
  Covenants.

  	
  86

  
	
  10.8

  	
  Notices;
  Effectiveness of Signatures; Posting on Electronic Delivery Systems.

  	
  86

  
	
  10.9

  	
  Survival of
  Representations, Warranties and Agreements.

  	
  88

  
	
  10.10

  	
  Failure or Indulgence
  Not Waiver; Remedies Cumulative.

  	
  88

  
	
  10.11

  	
  Marshalling;
  Payments Set Aside.

  	
  88

  
	
  10.12

  	
  Severability.

  	
  89

  
	
  10.13

  	
  Obligations
  Several; Independent Nature of Lenders’ Rights; Damage Waiver.

  	
  89

  
	
  10.14

  	
  Applicable Law.

  	
  89

  
	
  10.15

  	
  Construction of
  Agreement; Nature of Relationship.

  	
  90

  
	
  10.16

  	
  Consent to
  Jurisdiction and Service of Process.

  	
  90

  
	
  10.17

  	
  Waiver of Jury
  Trial.

  	
  90

  
	
  10.18

  	
  Confidentiality.

  	
  91

  
	
  10.19

  	
  Counterparts;
  Effectiveness.

  	
  92

  
	
  10.20

  	
  USA Patriot Act.

  	
  92

  



 


iii

















 


EXHIBITS


 


	
  I

  	
  FORM OF
  NOTICE OF REVOLVING BORROWING

  
	
   

  	
   

  
	
  IA

  	
  FORM OF BID
  REQUEST

  
	
   

  	
   

  
	
  IB

  	
  FORM OF
  COMPETITIVE BID

  
	
   

  	
   

  
	
  II

  	
  FORM OF
  NOTICE OF CONVERSION/CONTINUATION

  
	
   

  	
   

  
	
  III

  	
  FORM OF
  REQUEST FOR ISSUANCE

  
	
   

  	
   

  
	
  IV

  	
  FORM OF
  REVOLVING NOTE

  
	
   

  	
   

  
	
  V

  	
  FORM OF
  SWING LINE NOTE

  
	
   

  	
   

  
	
  VI

  	
  FORM OF
  COMPLIANCE CERTIFICATE

  
	
   

  	
   

  
	
  VII

  	
  FORM OF
  ASSIGNMENT AGREEMENT

  



 


iv

















 


SCHEDULES


 


	
  1.1

  	
  SIGNIFICANT
  SUBSIDIARIES

  
	
   

  	
   

  
	
  2.1

  	
  LENDERS’
  COMMITMENTS AND PRO RATA SHARES

  
	
   

  	
   

  
	
  5.6

  	
  LITIGATION

  
	
   

  	
   

  
	
  7.1

  	
  CERTAIN EXISTING
  LIENS

  
	
   

  	
   

  
	
  10.8

  	
  NOTICE
  ADDRESSES

  



 


v














 


AMERIPRISE FINANCIAL, INC.


 


CREDIT AGREEMENT


 


This CREDIT
AGREEMENT is dated as of September 30, 2005 and entered into by
and among AMERIPRISE FINANCIAL, INC.,
a Delaware corporation (“Company”),
THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a
“Lender” and collectively as “Lenders”),
WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as administrative agent for
Lenders (in such capacity, “Administrative
Agent”), and CITIBANK, N.A.,
as syndication agent for Lenders (in such capacity, “Syndication Agent”), and BANK
OF AMERICA, N.A., HSBC BANK USA,
NATIONAL ASSOCIATION and WACHOVIA
BANK, NATIONAL ASSOCIATION, as co-documentation agents for Lenders
(in such capacity, “Co-Documentation Agents”).


 


R E C I T A L S


 


WHEREAS, Lenders, at the request of Company,
have agreed to extend certain credit facilities to Company, the proceeds of
which will be used to provide financing for working capital and other general
corporate purposes of Company and its Subsidiaries:


 


NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, Company, Lenders and
Administrative Agent agree as follows:


 


Section 1.             
DEFINITIONS


 


1.1            
Certain Defined Terms.


 


The following terms used in this Agreement shall have
the following meanings:


 


“Absolute Rate”
means a fixed rate of interest expressed in multiples of 1/100th of one
percent.


 


“Absolute Rate Loan”
means a Bid Loan that bears interest at a rate determined by reference to an
Absolute Rate.


 


“Administrative
Agent” has the meaning assigned to that term in the introduction to
this Agreement and also means and includes any successor Administrative Agent
appointed pursuant to subsection 9.5A.


 


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


 


“Affected Lender”
has the meaning assigned to that term in subsection 2.6C.


 


“Affected Loans”
has the meaning assigned to that term in subsection 2.6C.


 

















 


“Affiliate”,
as applied to any Person, means any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the
purposes of this definition, “control” (including, with correlative meanings,
the terms “controlling”, “controlled by” and “under common control with”), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise; provided, however, that the term “Affiliate” shall specifically
exclude the Agents and each Lender.


 


“Agents”
means Administrative Agent, the Syndication Agent and the Co-Documentation
Agents named in the introduction to this Agreement.


 


“Agreement”
means this Credit Agreement.


 


“Annual Statement”
means the annual statutory financial statement of any Insurance Subsidiary
required to be filed with the insurance commissioner (or similar authority) of
its jurisdiction of incorporation, which statement shall be in the form
required by such Insurance Subsidiary’s jurisdiction of incorporation or, if no
specific form is so required, in the form of financial statements permitted by
such insurance commissioner (or such similar authority) to be used for filing
annual statutory financial statements and shall contain the type of information
permitted by such insurance commissioner (or such similar authority) to be
disclosed therein, together with all exhibits or schedules filed therewith.


 


“Applicable Margin”
means, from time to time, the following rate per annum based upon the Debt
Rating as set forth below:


 


	
  Pricing

  Level

  	
   

  	
  Debt Rating

  S&P/Moody’s

  	
   

  	
  Eurodollar

  Margin

  	
   

  	
  Facility

  Fee

  	
   

  	
  Utilization

  Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level I

  	
   

  	
  > A / A2

  	
   

  	
  0.24

  	
  %

  	
  0.06

  	
  %

  	
  0.05

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level II

  	
   

  	
  A- / A3

  	
   

  	
  0.28

  	
  %

  	
  0.07

  	
  %

  	
  0.05

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level III

  	
   

  	
  BBB+ / Baa1

  	
   

  	
  0.31

  	
  %

  	
  0.09

  	
  %

  	
  0.10

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level IV

  	
   

  	
  BBB / Baa2

  	
   

  	
  0.375

  	
  %

  	
  0.125

  	
  %

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level V

  	
   

  	
  < BBB / Baa2

  	
   

  	
  0.45

  	
  %

  	
  0.175

  	
  %

  	
  0.125

  	
  %

  



 


Initially, the Applicable Margin shall be
Pricing Level II.  Thereafter, each change in the Applicable Margin
resulting from a publicly announced change in the Debt Rating shall be
effective, in the case of an upgrade, during the period commencing on the date
of the public announcement thereof and ending on the date immediately preceding
the effective date of the next such change and, in the case of a downgrade,
during the period commencing on the date of the public announcement thereof and
ending on the date immediately preceding the effective date of the next such
change.  If, at any time, Company has no Debt Rating from S&P or


 


2

















 


Moody’s,
the Applicable Margin shall be Pricing Level V; provided that until
S&P issues a Debt Rating, only the Debt Rating issued by Moody’s shall be
taken into account.


 


“Approved Fund”
means a Fund that is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Asset Sale”
means the sale by Company or any of its Subsidiaries to any Person other than
Company or any of its wholly-owned Subsidiaries of (i) any of the stock of
any of Company’s Subsidiaries, (ii) substantially all of the assets of any
division or line of business of Company or any of its Subsidiaries, or
(iii) any other assets (whether tangible or intangible) of Company or any
of its Subsidiaries (other than (a) sales, assignments, transfers or
dispositions of accounts in the ordinary course of business for purposes of
collection and (b) sales, assignments, transfers or dispositions of
investment assets by Insurance Subsidiaries in the ordinary course of
business).


 


“Assignment
Agreement” means an Assignment and Assumption in substantially the
form of Exhibit VII annexed hereto.


 


“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bankruptcy”, as now and
hereafter in effect, or any successor statute.


 


“Base Rate”
means, at any time, the higher of (i) the Prime Rate or (ii) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate.  Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change.


 


“Base Rate Loans”
means Loans bearing interest at rates determined by reference to the Base Rate
as provided in subsection 2.2A.


 


“Bid Borrowing”
means a borrowing consisting of simultaneous Bid Loans of the same Type from
each of the Lenders whose offer to make one or more Bid Loans as part of such
borrowing has been accepted under the auction bidding procedures described in
Section 2.03.


 


“Bid Loan”
has the meaning specified in subsection 2.1A(iii).


 


“Bid Loan Lender”
means, in respect of any Bid Loan, the Lender making such Bid Loan to Company.


 


“Bid Request”
means a written request for one or more Bid Loans substantially in the form of
Exhibit IA.


 


“Bridge Loan
Agreement” means that certain Credit Agreement, dated as of
September     , 2005, among Company, Citibank, N.A.,
as agent, and the financial institutions party thereto.


 


3

















 


“Business Day”
means (i) except as set forth in clause (ii) below, any day excluding
Saturday, Sunday and any day which is a legal holiday under the laws of the
State of New York or the State of Minnesota or is a day on which banking
institutions located in such state are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Eurodollar Rate or
any Eurodollar Rate Loans, any day that is a Business Day described in clause
(i) above and that is also a day for trading by and between banks in
Dollar deposits in the London interbank market.


 


“Capital Lease”,
as applied to any Person, means any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.


 


“Capital Stock”
means the capital stock of or other equity interests in a Person.


 


“Cash”
means money, currency or a credit balance in a Deposit Account.


 


“Change in Control”
means any of the following:


 


(a)          
the acquisition by any Person, or two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934), but
excluding any employee benefit plan of such Person or its Subsidiaries, of 20%
or more of the outstanding shares of voting stock of Company;


 


(b)          
during any period of 12 consecutive months, a majority of the members of the
board of directors of Company cease to be composed of individuals (i) who
were members of the board of directors on the first day of such period,
(ii) whose election or nomination to the board of directors was approved
by individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of the board of directors or
(iii) whose election or nomination to the board of directors was approved
by individuals referred to in clauses (i) and (ii) above constituting
at the time of such election or nomination at least a majority of the board of
directors; or


 


(c)          
any Person or two or more Persons acting in concert will have acquired by
contract or otherwise, or will have entered into a contract or arrangement
that, upon consummation thereof, will result in its or their acquisition of the
power to exercise, directly or indirectly, a controlling influence over the
management or policies of Company, or control over the equity securities of
Company entitled to vote for members of the board of directors or equivalent
governing body of Company on a fully-diluted basis (and taking into account all
such securities that such Person or group has the right to acquire pursuant to
any option right) representing 20% or more of the combined voting power of such
securities.


 


“Change in Law”
means the occurrence, after the date of this Agreement, of any of the
following:  (i) the adoption or taking effect of any law, rule,
regulation, treaty or order, (ii) any change in any law, rule, regulation
or treaty or in the administration, interpretation or application thereof by
any Government Authority, (iii) any determination of a court or other


 


4

















 


Government
Authority or (iv) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Government Authority.


 


“Closing Date”
means the date on which the conditions precedent set forth in subsection 4.1
have been satisfied.


 


“Commitments”
means the commitments of Lenders to make Loans as set forth in subsections 2.1A
and 3.3.


 


“Competitive Bid”
means a written offer by a Lender to make one or more Bid Loans, substantially
in the form of Exhibit IB, duly completed and signed by a Lender.


 


“Company”
has the meaning assigned to that term in the introduction to this Agreement.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit VI
annexed hereto.


 


“Confidential
Information Memorandum” means the Confidential Information
Memorandum dated August 2005 relating to the credit facilities evidenced
by this Agreement, which Confidential Information Memorandum incorporates by
reference the Form 10.


 


“Consolidated
Leverage Ratio” means, as of the last day of any Fiscal Quarter, the
ratio of (i) Consolidated Total Debt as of such day to
(ii) Consolidated Total Capitalization as of such day.


 


“Consolidated Net
Worth” means, as of any date of determination, the consolidated
shareholders’ equity of Company and its Subsidiaries determined on a
consolidated basis as of such date in accordance with GAAP (excluding the
effect of Statement of Financial Accounting Standards No. 115).


 


“Consolidated Total
Capitalization” means, as of any date of determination, the sum of
(a) Consolidated Net Worth and (b) Consolidated Total Debt.


 


“Consolidated Total
Debt” means, as of any date of determination, the aggregate stated
balance sheet amount of all Indebtedness of Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.


 


“Contingent
Obligation”, as applied to any Person, means any direct or indirect
liability, contingent or otherwise, of that Person (i) with respect to any
Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof or
(ii) with respect to any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of
drawings.  Contingent Obligations shall include (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making,


 


5

















 


discounting
with recourse or sale with recourse by such Person of the obligation of
another, (b) the obligation to make take-or-pay or similar payments if
required regardless of non-performance by any other party or parties to an
agreement, and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (1) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise)
or (2) to maintain the solvency or any balance sheet item, level of income
or financial condition of another if, in the case of any agreement described
under subclauses (1) or (2) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence.  The amount of
any Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.


 


“Contractual
Obligation”, as applied to any Person, means any provision of any
Security issued by that Person or of any material indenture, mortgage, deed of
trust, contract, undertaking, agreement or other instrument to which that
Person is a party or by which it or any of its properties is bound or to which
it or any of its properties is subject.


 


“Currency Agreement”
means any foreign exchange contract, currency swap agreement, futures contract,
option contract, synthetic cap or other similar agreement or arrangement to
which Company or any of its Subsidiaries is a party.


 


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


 


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


 


“Deposit Account”
means a demand, time, savings, passbook or similar account maintained with a
Person engaged in the business of banking, including a savings bank, savings
and loan association, credit union or trust company.


 


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


 


“Effective Date”
means the date on which the conditions precedent set forth in subsections 4.1
and 4.2A have been satisfied.


 


6

















 


“Eligible Assignee”
means (i) any Lender, any Affiliate of any Lender or any Approved Fund of
any Lender; and (ii) (a) a commercial bank organized under the laws
of the United States or any state thereof; (b) a savings and loan
association or savings bank organized under the laws of the United States or
any state thereof; (c) a commercial bank organized under the laws of any
other country or a political subdivision thereof; provided that
(1) such bank is acting through a branch or agency located in the United
States or (2) such bank is organized under the laws of a country that is a
member of the Organization for Economic Cooperation and Development or a
political subdivision of such country; and (d) any other entity that is an
institutional “accredited investor” (as defined in Regulation D under the
Securities Act) that extends credit or buys loans as one of its businesses, including
insurance companies and mutual funds; provided that neither Company nor
any Affiliate of Company shall be an Eligible Assignee.


 


“Employee Benefit
Plan” means any “employee benefit plan”, as defined in
Section 3(3) of ERISA, which is or was maintained or contributed to
by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates.


 


“Environmental Claim”
means any investigation, notice, notice of violation, claim, action, suit,
proceeding, demand, abatement order or other order or directive (conditional or
otherwise), by any Government Authority or any other Person, arising
(i) pursuant to or in connection with any actual or alleged violation of
any Environmental Law, (ii) in connection with any Hazardous Materials or
any actual or alleged Hazardous Materials Activity, or (iii) in connection
with any actual or alleged damage, injury, threat or harm to health, safety,
natural resources or the environment.


 


“Environmental Laws”
means any and all current or future statutes, ordinances, orders, rules,
regulations, guidance documents, judgments, Governmental Authorizations, or any
other requirements of any Government Authority relating to
(i) environmental matters, including those relating to any Hazardous
Materials Activity, (ii) the generation, use, storage, transportation or
disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Company or any of its Subsidiaries or
any of its properties.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any successor thereto.


 


“ERISA Affiliate”,
as applied to any Person, means (i) any corporation that is a member of a
controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that
Person is a member; and (iii) any member of an affiliated service group
within the meaning of Section 414(m) or (o) of the Internal
Revenue Code of which that Person, any corporation described in clause
(i) above or any trade or business described in clause (ii) above is
a member.  Any former ERISA Affiliate of a Person or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of such Person
or such Subsidiary within the meaning of this definition with respect to the
period such entity was an ERISA Affiliate of such Person or such Subsidiary and
with


 


7

















 


respect
to liabilities arising after such period for which such Person or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.


 


“ERISA Event”
means (i) a “reportable event” within the meaning of Section 4043 of
ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with
Section 412(d) of the Internal Revenue Code) or the failure to make
by its due date a required installment under Section 412(m) of the
Internal Revenue Code with respect to any Pension Plan or the failure to make
any required contribution to a Multiemployer Plan; (iii) the provision by
the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the withdrawal by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in material
liability pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which would reasonably be expected to
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of
Company, any of its Subsidiaries or any of their respective ERISA Affiliates in
a complete or partial withdrawal (within the meaning of Sections 4203 and 4205
of ERISA) from any Multiemployer Plan if there would be any liability therefor,
or the receipt by Company, any of its Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or
that it intends to terminate or has terminated under Section 4041A or 4042
of ERISA; (viii) the assertion of a claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan that
would reasonably be expected to result in a material liability to Company or
any of its Subsidiaries; (ix) receipt from the Internal Revenue Service of
notice of the failure of any Pension Plan (or any other Employee Benefit Plan
intended to be qualified under Section 401(a) of the Internal Revenue
Code) to qualify under Section 401(a) of the Internal Revenue Code,
or the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue
Code where such failure would reasonably be expected to result in a Material
Adverse Effect; or (x) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect
to any Pension Plan.  With respect to a Multiemployer Plan or a Pension
Plan not maintained or contributed to by Company or its Subsidiaries, an event
described above shall not be an ERISA Event unless it is reasonably likely to
result in material liability to Company or any of its Subsidiaries.


 


“Eurodollar Bid
Margin” means the margin above or below the Eurodollar Base Rate to
be added to or subtracted from the Eurodollar Base Rate, which margin shall be
expressed in multiples of 1/100th of one percent.


 


8

















 


“Eurodollar Margin
Bid Loan” means a Bid Loan that bears interest at a rate based upon
the Eurodollar Base Rate.


 


“Eurodollar Rate”
means, for any Interest Rate Determination Date with respect to an Interest
Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing
(i) (A) the rate per annum (rounded upward to the nearest 1/16 of one
percent) that appears on the Moneyline Telerate page 3750 (or such other
comparable page as may, in the opinion of Administrative Agent, replace
such page for the purpose of displaying such rate) as the interbank
offered rate for Dollar deposits with maturities comparable to such Interest
Period as of approximately 11:00 A.M. (London time) on such Interest Rate
Determination Date or (B) if such rate is not available at such time for
any reason, the rate per annum obtained by dividing (i) the arithmetic
average (rounded upward to the nearest 1/16 of one percent) of the offered
quotations, if any, to first class banks in the interbank Eurodollar market by
Wells Fargo (or, in the case of a Bid Loan, the applicable Bid Loan Lender) for
Dollar deposits of amounts in same day funds comparable to the principal amount
of the Eurodollar Rate Loan of Wells Fargo (or, in the case of a Bid Loan, the
applicable Bid Loan Lender) for which the Eurodollar Rate is then being
determined with maturities comparable to such Interest Period as of
approximately 12:00 Noon (New York time) on such Interest Rate Determination
Date by (ii) a percentage equal to 100% minus the stated
maximum rate of all reserve requirements (including any marginal, emergency,
supplemental, special or other reserves) applicable on such Interest Rate
Determination Date to any member bank of the Federal Reserve System in respect
of “Eurocurrency liabilities” as defined in Regulation D (or any successor
category of liabilities under Regulation D).


 


“Eurodollar Rate
Loan” means a Eurodollar Rate Revolving Loan or a Eurodollar Margin
Bid Loan.


 


“Eurodollar Rate
Margin” means the margin over the Eurodollar Rate used in
determining the rate of interest of Eurodollar Rate Revolving Loans in
accordance with the definition of Applicable Margin.


 


“Eurodollar Rate
Revolving Loans” means Revolving Loans bearing interest at rates
determined by reference to the Eurodollar Rate as provided in subsection 2.2A.


 


“Event of Default”
means each of the events set forth in Section 8.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, or any other
recipient of any payment to be made by or on account of any obligation of
Company hereunder (i) taxes that are imposed on the overall net income
(however denominated) and franchise taxes imposed in lieu thereof (a) by
the United States, (b) by any other Government Authority under the laws of
which such Lender is organized or has its principal office or maintains its
applicable lending office or (c) by any Government Authority solely by
reason of any connection between the Administrative Agent or any Lender (as the
case may be) and the taxing jurisdiction (other than such connection arising solely
from the execution or delivery of,


 


9

















 


the
receipt of payments pursuant to, or the enforcement of, this Agreement or any
other Loan Document), (ii) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction in which Company is
located, (iii) any gross income taxes (other than gross income taxes
imposed in the form of withholding taxes) imposed by the United States on any
Lender (x) at the time such Lender became a party hereto (or designated a
new lending office), except in the case of an assignee pursuant to subsection
2.9, or (y) as a result of such Lender ceasing to be eligible for a
complete exemption from such taxes after the date such Lender becomes a party
hereto (except to the extent that such Lender’s failure to be so eligible is as
a result of a Change in Law, any action that Company or any of its Affiliates
takes, or as a result of an assignment pursuant to Company’s request under
subsection 2.9); and (iv) any withholding tax that (x) would have
been imposed on amounts payable to such Lender at the time it became a party
hereto (or designated a new lending office), except in the case of an assignee
pursuant to a request of Company under subsection 2.9, (y) is attributable
to such Lender’s failure or inability (including by reason of not being legally
entitled to do so, other than as a result of a Change in Law) to comply with
its obligations under subsection 2.7B(iv), except to the extent that such 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 Company with
respect to such withholding tax pursuant to subsection 2.7B or (z) as a
result of a Lender or Administrative Agent ceasing to be eligible for a
complete exemption from such taxes after the date the Lender becomes a party
hereto (except to the extent that such Lender’s Agent failure to be so eligible
is as a result of a Change in Law, any action that Company or any of its
Affiliates takes, or as a result of an assignment pursuant to Company’s request
under subsection 2.9).


 


“Extension Request”
is defined in subsection 2.11.


 


“Federal Funds
Effective Rate” means, for any period, a fluctuating interest rate
equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.


 


“Fiscal Quarter”
means a fiscal quarter of any Fiscal Year.


 


“Fiscal Year”
means the fiscal year of Company and its Subsidiaries ending on
December 31 of each calendar year.  For purposes of this Agreement,
any particular Fiscal Year shall be designated by reference to the calendar
year in which such Fiscal Year ends.


 


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


 


“Form 10”
means that certain filing on Securities and Exchange Commission
Form 10-12B of Company filed with the Securities and Exchange Commission
on June 7, 2005,


 


10

















 


as
amended by those certain filings on Securities and Exchange Commission
Form 10-12B/A filed on July 25, 2005, August 15, 2005 and
August 19, 2005.


 


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


 


“Funding and Payment
Office” means (i) the office of Administrative Agent and Swing
Line Lender located at 201 Third Street, 8th Floor, San Francisco, California
94103 or (ii) such other office of Administrative Agent and Swing Line
Lender as may from time to time hereafter be designated as such in a written
notice delivered by Administrative Agent and Swing Line Lender to Company and
each Lender.


 


“Funding Date”
means the date of funding of a Loan.


 


“GAAP”
means, subject to the limitations on the application thereof set forth in
subsection 1.2, generally accepted accounting principles set forth in opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination.


 


“Governing Body”
means the board of directors or other body having the power to direct or cause
the direction of the management and policies of a Person that is a corporation,
partnership, trust or limited liability company.


 


“Government Authority”
means the government of the United States or any other nation, or any state,
regional or local political subdivision or department thereof, and any other
governmental or regulatory agency, authority, body, commission, central bank,
board, bureau, organ, court, instrumentality or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government, in each case whether federal,
state, local or foreign (including supra-national bodies such as the European
Union or the European Central Bank).


 


“Governmental
Authorization” means any permit, license, registration,
authorization, plan, directive, accreditation, consent, order or consent decree
of or from, or notice to, any Government Authority.


 


“Hazardous Materials”
means (i) any chemical, material or substance at any time defined as or
included in the definition of “hazardous substances”, “hazardous wastes”,
“hazardous materials”, “extremely hazardous waste”, “acutely hazardous waste”,
“radioactive waste”, “biohazardous waste”, “pollutant”, “toxic pollutant”,
“contaminant”, “restricted hazardous waste”, “infectious waste”, “toxic
substances”, or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, “TCLP toxicity” or “EP toxicity” or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum,


 


11














 


petroleum
fraction or petroleum derived substance; (iii) any drilling fluids,
produced waters and other wastes associated with the exploration, development
or production of crude oil, natural gas or geothermal resources; (iv) any
flammable substances or explosives; (v) any radioactive materials;
(vi) any asbestos-containing materials; (vii) urea formaldehyde foam
insulation; (viii) electrical equipment which contains any oil or
dielectric fluid containing polychlorinated biphenyls; (ix) pesticides;
and (x) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Government Authority or which may or
could pose a hazard to the health and safety of the owners, occupants or any
Persons in the vicinity of any facility of Company or any of its Subsidiaries
or to the indoor or outdoor environment.


 


“Hazardous Materials
Activity” means any past, current, proposed or threatened activity,
event or occurrence involving any Hazardous Materials, including the use,
manufacture, possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Materials, and any corrective action
or response action with respect to any of the foregoing.


 


“Hedge Agreement”
means an Interest Rate Agreement or a Currency Agreement designed to hedge
against fluctuations in interest rates or currency values, respectively.


 


“Indebtedness”,
as applied to any Person, means (i) indebtedness created, issued or
incurred for borrowed money (whether by loan or the issuance and sale of debt
securities), but excluding customer deposits, investment accounts and
certificates, and insurance reserves, (ii) that portion of obligations
with respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP, (iii) obligations to pay the
deferred purchase or acquisition price of property or services, other than
trade accounts payable (other than for borrowed money) arising, and accrued
expenses incurred, in the ordinary course of business (excluding any such
obligations incurred under ERISA), (iv) obligations in respect of letters
of credit or similar instruments; and (v) Contingent Obligations of such
Person in respect of Indebtedness of the types described in clauses (i), (ii),
(iii) and (iv) of this definition.


 


“Indemnified
Liabilities” has the meaning assigned to that term in subsection
10.3.


 


“Indemnified Taxes”
means any Taxes imposed on, asserted with respect to or attributable to
(i) any payment made or received under any Loan Document or (ii) the
execution, entering into, delivery, performance or enforcement of any Loan
Document, including all Other Taxes, but in each case excluding Excluded Taxes.


 


“Indemnitee”
has the meaning assigned to that term in subsection 10.3.


 


“Insurance
Subsidiary” means any Subsidiary which is engaged in the insurance
business.


 


“Interest Payment
Date” means (i) with respect to any Base Rate Loan, the last
Business Day of each March, June, September and December of each
year, commencing on the first such date to occur after the Closing Date, and
(ii) with respect to any Eurodollar Rate Loan,


 


12

















 


the
last day of each Interest Period applicable to such Loan; provided that
in the case of each Interest Period of longer than three months “Interest
Payment Date” shall also include each date that is three months, or a multiple
thereof, after the commencement of such Interest Period.


 


“Interest Period”
has the meaning assigned to that term in subsection 2.2B.


 


“Interest Rate
Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or other similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.


 


“Interest Rate
Determination Date”, with respect to any Interest Period, means the
second Business Day prior to the first day of such Interest Period.


 


“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended to the
date hereof and from time to time hereafter, and any successor statute.


 


“Issuing Lender”,
with respect to any Letter of Credit, means Wells Fargo or another Lender
requested by Company and approved by Administrative Agent that agrees or is
otherwise obligated to issue such Letter of Credit, determined as provided in
subsection 3.1B(ii).


 


“Lender”
and “Lenders” means the Persons
identified as “Lenders” and listed on the signature pages of this
Agreement, together with their successors and permitted assigns pursuant to
subsection 10.1, and the term “Lenders” shall include Swing Line Lender unless
the context otherwise requires.


 


“Letter of Credit”
or “Letters of Credit” means
standby letters of credit issued or to be issued by Issuing Lenders for the
account of Company pursuant to subsection 3.1.


 


“Letter of Credit
Usage” means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then outstanding plus
(ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed out of the proceeds of
Revolving Loans pursuant to subsection 3.3B or otherwise reimbursed by
Company.  For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of the UCP, such Letter of
Credit shall be deemed to be “outstanding” in the amount so remaining available
to be drawn.


 


“License”
means any license, certificate of authority, permit or other authorization
which is required to be obtained from any Government Authority in connection
with the operation, ownership or transaction of insurance, broker-dealer or
investment advisory businesses or other regulated businesses.


 


“Lien”
means any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.


 


13

















 


“Loan” or
“Loans” means one or more of the
Loans made by Lenders to Company pursuant to subsection 2.1A and shall include
one or more Revolving Loans, Bid Loans and Swing Line Loans.


 


“Loan Documents”
means this Agreement, the Notes and the Letters of Credit (and any applications
for, or reimbursement agreements or other documents or certificates executed by
Company in favor of an Issuing Lender relating to, the Letters of Credit).


 


“Margin Stock”
has the meaning assigned to that term in Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to time.


 


“Material Adverse
Effect” means a material adverse effect upon (i) the business,
financial condition, prospects or operations of Company and its Subsidiaries
taken as a whole or (ii) Company’s ability to perform its obligations
under the Loan Documents, or (iii) the enforceability of the Obligations.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Multiemployer Plan”
means any Employee Benefit Plan that is a “multiemployer plan” as defined in
Section 3(37) of ERISA.


 


“Notes”
means one or more of the Revolving Notes or Swing Line Note or any combination
thereof.


 


“Notice of
Conversion/Continuation” means a notice substantially in the form of
Exhibit II annexed hereto.


 


“Notice of Revolving
Borrowing” means a notice substantially in the form of Exhibit I
annexed hereto.


 


“Obligations”
means all obligations of every nature of Company from time to time owed to
Administrative Agent, Lenders or any of them under the Loan Documents, whether
for principal, interest, reimbursement of amounts drawn under Letters of
Credit, fees, expenses, indemnification or otherwise.


 


“Officer”
means the president, chief executive officer, a vice president, chief financial
officer, treasurer, general partner (if an individual), managing member (if an
individual) or other individual appointed by the Governing Body or the
Organizational Documents of a corporation, partnership, trust or limited
liability company to serve in a similar capacity as the foregoing.


 


“Officer’s
Certificate”, as applied to any Person that is a corporation,
partnership, trust or limited liability company, means a certificate executed
on behalf of such Person by one or more Officers of such Person or one or more
Officers of a general partner or a managing member if such general partner or
managing member is a corporation, partnership, trust or limited liability
company.


 


14

















 


“Organizational
Documents” means the documents (including bylaws, if applicable)
pursuant to which a Person that is a corporation, partnership, trust or limited
liability company is organized.


 


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


 


“Participant”
means a purchaser of a participation in the rights and obligations under this
Agreement pursuant to subsection 10.1C.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any successor thereto.


 


“Pension Plan”
means any Employee Benefit Plan, other than a Multiemployer Plan, that is
subject to Section 412 of the Internal Revenue Code or Section 302 of
ERISA.


 


“Permitted
Encumbrances” means the following types of Liens (excluding any such
Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA, and any such Lien relating to or imposed in
connection with any Environmental Claim):


 


(i)           
Liens for taxes, assessments or governmental charges or claims the payment of
which is not, at the time, required by subsection 6.3;


 


(ii)          
statutory Liens of landlords, Liens of collecting banks under the UCC on items
in the course of collection, statutory Liens and rights of set-off of banks,
statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law, in each case incurred in the
ordinary course of business (a) for amounts not yet overdue or (b) for
amounts that are overdue and that (in the case of any such amounts overdue for
a period in excess of 5 days) are being contested in good faith by appropriate
proceedings, so long as (1) such reserves or other appropriate provisions,
if any, as shall be required by GAAP shall have been made for any such
contested amounts, and (2) no foreclosure, sale or similar proceedings
have been commenced;


 


(iii)         
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance, old age pensions and other types of
social security, for the maintenance of self-insurance or to secure the
performance of statutory obligations, bids, leases, government contracts, trade
contracts, and other similar obligations (exclusive of obligations for the
payment of borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect thereto;


 


(iv)         
any attachment or judgment Lien not constituting an Event of Default under
subsection 8.8;


 


15

















 


(v)          
licenses (with respect to intellectual property and other property), leases or
subleases granted to third parties not interfering in any material respect with
the ordinary conduct of the business of Company or any of its Subsidiaries;


 


(vi)         
easements, rights-of-way, restrictions, encroachments, and other minor defects
or irregularities in title, in each case which do not and will not interfere in
any material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries;


 


(vii)        
any (a) interest or title of a lessor or sublessor under any lease not
prohibited by this Agreement, (b) Lien or restriction that the interest or
title of such lessor or sublessor may be subject to, or (c) subordination
of the interest of the lessee or sublessee under such lease to any Lien or
restriction referred to in the preceding clause (b), so long as the holder of
such Lien or restriction agrees to recognize the rights of such lessee or
sublessee under such lease;


 


(viii)       
Liens arising from filing UCC financing statements relating solely to leases
not prohibited by this Agreement;


 


(ix)          
Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;


 


(x)           
any zoning or similar law or right reserved to or vested in any Government
Authority to control or regulate the use of any real property; and


 


(xi)          
Liens securing obligations (other than obligations representing Indebtedness
for borrowed money) under operating, reciprocal easement or similar agreements
entered into in the ordinary course of business of Company and its
Subsidiaries.


 


“Person”
means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships,
joint stock companies, joint ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations, whether
or not legal entities, and Government Authorities.


 


“Potential Event of
Default” means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.


 


“Prime Rate”
means the rate that Wells Fargo announces from time to time as its prime
lending rate, as in effect from time to time. The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer.  Wells Fargo or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.


 


“Proceedings”
means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration.


 


16

















 


“Pro Rata Share”
means (i) with respect to all payments, computations and other matters
relating to the Revolving Loan Commitment or the Revolving Loans of any Lender
or any Letters of Credit issued or participations therein deemed purchased by
any Lender or any assignments of any Swing Line Loans deemed purchased by any
Lender, the percentage obtained by dividing (x) the Revolving Loan
Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders, and (ii) for all other purposes with respect to
each Lender, the percentage obtained by dividing (x) the Revolving
Loan Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1.  The
initial Pro Rata Share of each Lender for purposes of each of clauses (i),
(ii), and (iii) of the preceding sentence is set forth opposite the name
of that Lender in Schedule 2.1 annexed hereto.


 


“Quarterly Statement”
means the quarterly statutory financial statement of any Insurance Subsidiary
required to be filed with the insurance commissioner (or similar authority) of
its jurisdiction of incorporation or, if no specific form is so required, in
the form of financial statements permitted by such insurance commissioner (or
such similar authority) to be used for filing quarterly statutory financial
statements and shall contain the type of financial information permitted by
such insurance commissioner (or such similar authority) to be disclosed
therein, together with all exhibits or schedules filed therewith.


 


“Refunded Swing Line
Loans” has the meaning assigned to that term in subsection 2.1A(ii).


 


“Register”
has the meaning assigned to that term in subsection 2.1D.


 


“Regulated
Subsidiary” means any Insurance Subsidiary or any other Subsidiary
of Company engaged in the broker-dealer or investment advisory businesses or
otherwise subject to specific licensing or regulatory schemes by a Government
Authority.


 


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


 


“Reimbursement Date”
has the meaning assigned to that term in subsection 3.3B.


 


“Release”
means any release, spill, emission, leaking, pumping, pouring, injection,
escaping, deposit, disposal, discharge, dispersal, dumping, leaching or
migration of Hazardous Materials into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials), including the movement
of any Hazardous Materials through the air, soil, surface water or groundwater.


 


“Request for
Issuance” means a request substantially in the form of Exhibit III
annexed hereto.


 


“Requisite Lenders”
means Lenders having or holding more than 50% of the aggregate Revolving Loan
Exposure of all Lenders; provided that the Commitment of, and the
portion of the Total Utilization of Revolving Credit Commitments held or deemed
held by, any


 


17

















 


Defaulting
Lender shall be excluded for purposes of making a determination of Requisite
Lenders.


 


“Response Date”
is defined in subsection 2.11.


 


“Restricted Junior
Payment” means (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock of Company now or
hereafter outstanding, except a dividend payable solely in shares of that class
of stock to the holders of that class or an increase in the liquidation value
of shares of that class of stock, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company now or hereafter
outstanding, and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding.


 


“Revolving Loan
Commitment” means the commitment of a Lender to make Revolving Loans
to Company pursuant to subsection 2.1A(i), and “Revolving Loan Commitments” means such commitments of all
Lenders in the aggregate.


 


“Revolving Loan
Commitment Amount” means, at any date, the aggregate amount of the
Revolving Loan Commitments of all Lenders.


 


“Revolving Loan
Commitment Termination Date” means September 30, 2010, as such
date may be extended in accordance with subsection 2.11; provided that if the
Spin-Off Transaction has not been consummated on or before October 31,
2005, the Revolving Loan Commitment Termination Date shall be October 31,
2005.


 


“Revolving Loan
Exposure”, with respect to any Lender, means, as of any date of
determination (i) prior to the termination of the Revolving Loan
Commitments, the amount of that Lender’s Revolving Loan Commitment, and
(ii) after the termination of the Revolving Loan Commitments, the sum of
(a) the aggregate outstanding principal amount of the Revolving Loans of
that Lender plus (b) in the event that Lender is an Issuing Lender,
the aggregate Letter of Credit Usage in respect of all Letters of Credit issued
by that Lender (in each case net of any participations purchased by other
Lenders in such Letters of Credit or in any unreimbursed drawings thereunder) plus
(c) the aggregate amount of all participations purchased by that Lender in
any outstanding Letters of Credit or any unreimbursed drawings under any
Letters of Credit plus (d) in the case of Swing Line Lender, the
aggregate outstanding principal amount of all Swing Line Loans (net of any
assignments thereof deemed purchased by other Lenders) plus (e) the
aggregate amount of all assignments deemed purchased by that Lender in any
outstanding Swing Line Loans.


 


“Revolving Loans”
means the Loans made by Lenders to Company pursuant to subsection 2.1A(i).


 


“Revolving Notes”
means any promissory notes of Company issued pursuant to subsection 2.1E to
evidence the Revolving Loans of any Lenders, substantially in the form of Exhibit IV
annexed hereto.


 


18

















 


“S&P”
means Standard & Poor’s Ratings Service, a division of The McGraw-Hill
Companies, Inc.


 


“SAP”
means, with respect to any Insurance Subsidiary, the statutory accounting
practices prescribed or permitted by the insurance commissioner (or other
similar authority) in the jurisdiction of such Person for the preparation of
annual statements and other financial reports by insurance companies of the
same type as such Person in effect from time to time, applied in a manner
consistent with those used in preparing the financial statements referred to in
Section 6.1.


 


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


 


“Securities”
means any stock, shares, partnership interests, voting trust certificates, certificates
of interest or participation in any profit-sharing agreement or arrangement,
options, warrants, bonds, debentures, notes, or other evidences of
indebtedness, secured or unsecured, convertible, subordinated, certificated or
uncertificated, or otherwise, or in general any instruments commonly known as “securities” or any certificates of
interest, shares or participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.


 


“Securities Act”
means the Securities Act of 1933, as amended from time to time, and any
successor statute.


 


“Securities Laws”
means the Securities Act, the Exchange Act, Sarbanes-Oxley and the applicable
accounting and auditing principles, rules, standards and practices promulgated,
approved or incorporated by the Securities and Exchange Commission or the
Public Company Accounting Oversight Board, as each of the foregoing may be
amended and in effect on any applicable date hereunder.


 


“Separation and
Distribution Agreement” means the Separation and Distribution
Agreement dated as of August 24, 2005 by and between Company and American
Express Company.


 


“Significant
Subsidiary” means, at any date of determination, any Subsidiary of
Company which either (i) has assets at such time in excess of
$1,000,000,000 or (ii) has net income in an amount in excess of 10% of the
consolidated net income of Company and its Subsidiaries on a consolidated basis
as reflected in the then most recent consolidated financial statements of
Company and its Subsidiaries delivered pursuant to Section 6.1.  The
Significant Subsidiaries of Company as of June 30, 2005 are listed on Schedule
1.1 annexed hereto.


 


“Solvent”,
with respect to any Person, means that as of the date of determination both
(i)(a) the then fair saleable value of the property of such Person is
(1) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount that will be
required to pay the probable liabilities on such Person’s then existing debts
as they become absolute and due considering all financing alternatives,
ordinary operating income and potential asset sales reasonably available to
such Person; (b) such Person’s capital is not unreasonably small in
relation to its business or any contemplated or undertaken transaction; and
(c) such Person does not intend to incur, or believe (nor should it
reasonably believe) that it


 


19

















 


will
incur, debts beyond its ability to pay such debts as they become due; and
(ii) such Person is “solvent” within the meaning given that term and
similar terms under applicable laws relating to fraudulent transfers and
conveyances.  For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light
of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.


 


“Spin-Off
Transaction” means the distribution by American Express Company to
its stockholders by means of a share dividend of 100% of the outstanding common
stock of Company owned by American Express Company and all transactions related
thereto, all substantially as described in the Form 10.


 


“Spin-Off
Transaction Documents” means, collectively, the Separation and
Distribution Agreement, the Tax Allocation Agreement, the Transition Services
Agreement and all other material definitive documents pertaining to the
Spin-Off Transaction.


 


“Subsidiary”,
with respect to any Person, means any corporation, partnership, trust, limited
liability company, association, joint venture or other business entity of which
more than 50% of the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to
vote in the election of the members of the Governing Body is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof.


 


“Swap Counterparty”
means a Lender or an Affiliate of a Lender that has entered into a Hedge
Agreement with Company or one of its Subsidiaries.


 


“Swing Line Lender”
means Wells Fargo, or any Person serving as a successor Administrative Agent
hereunder, in its capacity as Swing Line Lender hereunder.


 


“Swing Line Loan
Commitment” means the commitment of Swing Line Lender to make Swing
Line Loans to Company pursuant to subsection 2.1A(ii).


 


“Swing Line Loans”
means the Loans made by Swing Line Lender to Company pursuant to subsection
2.1A(ii).


 


“Swing Line Note”
means any promissory note of Company issued pursuant to subsection 2.1E to
evidence the Swing Line Loans of Swing Line Lender, substantially in the form
of Exhibit V annexed hereto.


 


“Tax” or
“Taxes” means any present or
future tax, levy, impost, duty, fee, assessment, deduction, withholding or
other charge of any nature and whatever called, by whomsoever, on whomsoever
and wherever imposed, levied, collected, withheld or assessed, including
interest, penalties, additions to tax and any similar liabilities with respect
thereto.


 


“Tax Allocation
Agreement” means the Tax Allocation Agreement dated as of
September 30, 2005 by and between Company and American Express Company.


 


20

















 


“Total Utilization
of Revolving Loan Commitments” means, as at any date of
determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans plus (ii) the aggregate principal
amount of all outstanding Bid Loans plus (iii) the aggregate
principal amount of all outstanding Swing Line Loans plus (iv) the
Letter of Credit Usage.


 


“Transition Services
Agreement” means the Transition Services Agreement dated as of
September 30, 2005 by and between Company and American Express Company.


 


“Type”
means (a) with respect to a Revolving Loan, its character as a Base Rate
Loan or a Eurodollar Rate Revolving Loan, and (b) with respect to a Bid
Loan, its character as an Absolute Rate Loan or a Eurodollar Margin Bid Loan.


 


“UCC”
means the Uniform Commercial Code as in effect in any applicable jurisdiction.


 


“UCP” is
defined in subsection 3.6.


 


“Unasserted
Obligations” means, at any time, Obligations for taxes, costs,
indemnifications, reimbursements, damages and other liabilities (except for
(i) the principal of and interest on, and fees relating to, any
Indebtedness and (ii) contingent reimbursement obligations in respect of
amounts that may be drawn under Letters of Credit) in respect of which no claim
or demand for payment has been made (or, in the case of Obligations for
indemnification, no notice for indemnification has been issued by the
Indemnitee) at such time.


 


“Wells Fargo”
has the meaning assigned to that term in the introduction to this Agreement.


 


1.2                               Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement.


 


Except as otherwise expressly provided in this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.  Financial statements
and other information required to be delivered by Company to Lenders pursuant
to subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(v)).  Calculations in connection
with the definitions, covenants and other provisions of this Agreement shall
utilize GAAP as in effect on the date of determination, applied in a manner
consistent with that used in preparing the financial statements referred to in
subsection 5.3.  If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and Company, Administrative Agent or Requisite Lenders shall so
request, Administrative Agent, Lenders and Company shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of Requisite
Lenders), provided that, until so amended, such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein
and Company shall provide to Administrative Agent and Lenders reconciliation
statements provided for in subsection 6.1(v).  For purposes of determining
compliance with the financial covenants in Section 7.4 of this Agreement,
the application of Financial Accounting Standards Board Interpretation
No. 46 shall be disregarded with respect to


 


21

















 


financial
consolidation of any entity that is required to be included in the consolidated
financial statements of Company solely as a result of such application.


 


1.3          Other Definitional Provisions and Rules of
Construction.


 


A.           
Any
of the terms defined herein may, unless the context otherwise requires, be used
in the singular or the plural, depending on the reference.


 


B.           
References
to “Sections” and “subsections” shall be to Sections and subsections,
respectively, of this Agreement unless otherwise specifically provided. 
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.


 


C.           
The
use in any of the Loan Documents of the word “include” or “including”, when
following any general statement, term or matter, shall not be construed to
limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as “without limitation” or “but not limited to” or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter.


 


D.           
Unless
otherwise expressly provided herein, references to Organizational Documents,
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document.


 


Section 2.              AMOUNTS
AND TERMS OF LOANS


 


2.1                               Loans; Making of Loans; the Register;
Optional Notes; Bid Loans.


 


A.           
Loans.  Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Company herein set forth,
each Lender hereby severally agrees to make Revolving Loans as described in
subsection 2.1A(i) and Swing Line Lender hereby agrees to make the Swing
Line Loans as described in subsection 2.1A(ii).  In addition, Company may
request Bid Loans as described in subsection 2.1A(iii).


 


(i)           
Revolving Loans.  Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to make revolving loans
(each such loan a “Revolving
Loan”)
to Company from time to time during the period from the Effective Date to but
excluding the Revolving Loan Commitment Termination Date in an aggregate amount
not exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan
Commitments to be used in accordance with the terms of this Agreement. 
The original amount of each Lender’s Revolving Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto and the original
Revolving Loan Commitment Amount is $750,000,000; provided that the
amount of the Revolving Loan Commitment of each


 


22

















 


Lender
shall be adjusted to give effect to any assignment of such Revolving Loan
Commitment pursuant to subsection 10.1B and shall be reduced from time to time
by the amount of any reductions thereto made pursuant to subsection 2.4. 
Each Lender’s Revolving Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and Company hereby agrees that all Revolving Loans
and all other Obligations shall be paid in full no later than that date. 
Amounts borrowed under this subsection 2.1A(i) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination Date.


 


Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall
be subject to the limitation that in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan Commitment
Amount then in effect.


 


(ii)          
Swing Line Loans.


 


(a)          
General Provisions.  Swing Line Lender hereby agrees, subject to
the limitations set forth in the last paragraph of subsection 2.1A(ii) and
set forth below with respect to the maximum amount of Swing Line Loans
permitted to be outstanding from time to time, to make a portion of the
Revolving Loan Commitments available to Company from time to time during the
period from the Effective Date to but excluding the Revolving Loan Commitment
Termination Date by making Swing Line Loans to Company in an aggregate amount
not exceeding the amount of the Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5A, notwithstanding the fact that such
Swing Line Loans, when aggregated with Swing Line Lender’s outstanding
Revolving Loans and Swing Line Lender’s Pro Rata Share of the Letter of Credit
Usage then in effect, may exceed Swing Line Lender’s Revolving Loan
Commitment.  The original amount of the Swing Line Loan Commitment is
$25,000,000; provided that any reduction of the Revolving Loan
Commitment Amount made pursuant to subsection 2.4 that reduces the Revolving
Loan Commitment Amount to an amount less than the then current amount of the
Swing Line Loan Commitment shall result in an automatic corresponding reduction
of the amount of the Swing Line Loan Commitment to the amount of the Revolving
Loan Commitment Amount, as so reduced, without any further action on the part
of Company, Administrative Agent or Swing Line Lender.  The Swing Line
Loan Commitment shall expire on the Revolving Loan Commitment Termination Date
and all Swing Line Loans and all other amounts owed hereunder with respect to
the Swing Line Loans shall be paid in full no later than that date.


 


(b)          
Swing Line Loan Prepayment with Proceeds of Revolving Loans.  With
respect to any Swing Line Loans that have not been voluntarily prepaid by
Company pursuant to subsection 2.4A(i), Swing Line Lender may, at any time in
its sole and absolute discretion but not less frequently than once weekly,
deliver to Administrative Agent (with a copy to Company), no later than 12:00
noon (Minneapolis time) on the first Business Day in advance of the proposed
Funding Date, a notice requesting Lenders to make Revolving Loans that are Base
Rate


 


23














 


Loans
on such Funding Date in an amount equal to the amount of such Swing Line Loans
(the “Refunded Swing Line Loans”)
outstanding on the date such notice is given.  Company hereby authorizes
the giving of any such notice and the making of any such Revolving Loans. 
Anything contained in this Agreement to the contrary notwithstanding,
(1) the proceeds of such Revolving Loans made by Lenders other than Swing
Line Lender shall be immediately delivered by Administrative Agent to Swing
Line Lender (and not to Company) and applied to repay a corresponding portion
of the Refunded Swing Line Loans and (2) on the day such Revolving Loans
are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans
shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing
Line Lender, and such portion of the Swing Line Loans deemed to be so paid
shall no longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute
part of Swing Line Lender’s outstanding Revolving Loans and shall be due under
the Revolving Note, if any, of Swing Line Lender.  If any portion of any
such amount paid (or deemed to be paid) to Swing Line Lender should be
recovered by or on behalf of Company from Swing Line Lender in any bankruptcy
proceeding, in any assignment for the benefit of creditors or otherwise, the
loss of the amount so recovered shall be ratably shared among all Lenders in
the manner contemplated by subsection 10.5.


 


(c)          
Swing Line Loan Assignments.  On the Funding Date of each Swing
Line Loan, each Lender shall be deemed to, and hereby agrees to, purchase an
assignment of such Swing Line Loan in an amount equal to its Pro Rata
Share.  If for any reason (1) Revolving Loans are not made upon the
request of Swing Line Lender as provided in the immediately preceding paragraph
in an amount sufficient to repay any amounts owed to Swing Line Lender in
respect of such Swing Line Loan or (2) the Revolving Loan Commitments are
terminated at a time when such Swing Line Loan is outstanding, upon notice from
Swing Line Lender as provided below, each Lender shall fund the purchase of
such assignment in an amount equal to its Pro Rata Share (calculated, in the
case of the foregoing clause (2), immediately prior to such termination of the
Revolving Loan Commitments) of the unpaid amount of such Swing Line Loan
together with accrued interest thereon.  Upon one Business Day’s notice
from Swing Line Lender, each Lender shall deliver to Swing Line Lender such
amount in same day funds at the Funding and Payment Office.  In order to
further evidence such assignment (and without prejudice to the effectiveness of
the assignment provisions set forth above), each Lender agrees to enter into an
Assignment Agreement at the request of Swing Line Lender in form and substance
reasonably satisfactory to Swing Line Lender.  In the event any Lender
fails to make available to Swing Line Lender any amount as provided in this
paragraph, Swing Line Lender shall be entitled to recover such amount on demand
from such Lender together with interest thereon at the rate customarily used by
Swing Line Lender for the correction of errors among banks for three Business
Days and thereafter at the Base Rate.  In the event Swing Line Lender
receives a payment of any amount with respect to which other Lenders have
funded the purchase of


 


24

















 


assignments
as provided in this paragraph, Swing Line Lender shall promptly distribute to
each such other Lender its Pro Rata Share of such payment.


 


(d)          
Lenders’ Obligations.  Anything contained herein to the contrary
notwithstanding, each Lender’s obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to subsection
2.1A(ii)(b) and each Lender’s obligation to purchase an assignment of any
unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall
be absolute and unconditional and shall not be affected by any circumstance,
including (1) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against Swing Line Lender, Company or any
other Person for any reason whatsoever; (2) the occurrence or continuation
of an Event of Default or a Potential Event of Default; (3) any adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company or any of its Subsidiaries; (4) any
breach of this Agreement or any other Loan Document by any party thereto; or
(5) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided that such obligations of each
Lender are subject to the condition that (x) Swing Line Lender believed in
good faith that all conditions under Section 4 to the making of the
applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the
case may be, were satisfied at the time such Refunded Swing Line Loans or
unpaid Swing Line Loans were made or (y) the satisfaction of any such
condition not satisfied had been waived in accordance with subsection 10.6
prior to or at the time such Refunded Swing Line Loans or other unpaid Swing
Line Loans were made.


 


(iii)         
Bid Loans.


 


(a)          
General.  Subject to the terms and conditions set forth herein,
each Lender agrees that Company may from time to time request the Lenders to
submit offers to make loans in Dollars (each such loan, a “Bid
Loan”) to Company prior to the Revolving Loan
Commitment Termination Date pursuant to this subsection 2.1A(iii); provided,
however, that after giving effect to any Bid Borrowing, the Total Utilization
of Revolving Loan Commitments shall not exceed the Revolving Loan Commitment
Amount.  There shall not be more than seven different Interest Periods in
effect with respect to Bid Loans at any time.  Company shall repay each
Bid Loan on the last day of the Interest Period in respect thereof.


 


(b)          
Requesting Competitive Bids.  Company may request the submission of
Competitive Bids by delivering a Bid Request to the Administrative Agent not
later than 1:00 P.M. (Minneapolis time) (i) one Business Day prior to
the requested date of any Bid Borrowing that is to consist of Absolute Rate
Loans, or (ii) four Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurodollar Margin Bid Loans.  Each Bid
Request shall specify (i) the requested date of the Bid Borrowing (which
shall be a Business Day), (ii) the aggregate principal amount of Bid Loans
requested (which must be in a minimum amount of $5,000,000 and a multiple of
$1,000,000


 


25

















 


in excess thereof),
(iii) the Type of Bid Loans requested, (iv) the duration of the
Interest Period with respect thereto (which shall be for maturities of 7 to 360
days) and (v) the day-count convention, if other than actual/360, and
shall be signed by an authorized Officer of Company. No Bid Request shall
contain a request for (i) more than one Type of Bid Loan or (ii) Bid
Loans having more than three different Interest Periods. Unless the
Administrative Agent otherwise agrees in its sole and absolute discretion,
Company may not submit a Bid Request if it has submitted another Bid Request
within the prior five Business Days.


 


(c)          
Submitting Competitive Bids.


 


(i)           
The Administrative Agent shall promptly notify each Lender of each Bid Request
received by it from Company and the contents of such Bid Request.


 


(ii)          
Each Lender may (but shall have no obligation to) submit a Competitive Bid
containing an offer to make one or more Bid Loans in response to such Bid
Request.  Such Competitive Bid must be delivered to the Administrative
Agent not later than 11:30 A.M. (Minneapolis time) (A) on the requested
date of any Bid Borrowing that is to consist of Absolute Rate Loans, and
(B) three Business Days prior to the requested date of any Bid Borrowing
that is to consist of Eurodollar Margin Bid Loans; provided, however, that any
Competitive Bid submitted by Wells Fargo in its capacity as a Lender in
response to any Bid Request must be submitted to the Administrative Agent not
later than 11:15 A.M. (Minneapolis time) on the date on which Competitive
Bids are required to be delivered by the other Lenders in response to such Bid
Request.  Each Competitive Bid shall specify (A) the proposed date of
the Bid Borrowing; (B) the principal amount of each Bid Loan for which
such Competitive Bid is being made, which principal amount (x) may be equal
to, greater than or less than the Commitment of the bidding Lender,
(y) must be in a minimum amount of $5,000,000 and a multiple of $1,000,000
in excess thereof, and (z) may not exceed the principal amount of Bid
Loans for which Competitive Bids were requested; (C) if the proposed Bid
Borrowing is to consist of Absolute Rate Loans, the Absolute Rate offered for
each such Bid Loan and the Interest Period applicable thereto; (D) if the
proposed Bid Borrowing is to consist of Eurodollar Margin Bid Loans, the
Eurodollar Bid Margin with respect to each such Eurodollar Margin Bid Loan and
the Interest Period applicable thereto; and (E) the identity of the
bidding Lender.


 


(iii)         
Any Competitive Bid shall be disregarded if it (A) is received after the
applicable time specified in subsection (ii) above, (B) is not
substantially in the form of a Competitive Bid as specified herein,
(C) contains qualifying, conditional or similar language,
(D) proposes terms other than or in addition to those set forth in the
applicable Bid Request, or (E) is otherwise not responsive to such Bid
Request.  Any Lender may


 


26

















 


correct a Competitive Bid
containing a manifest error by submitting a corrected Competitive Bid
(identified as such) not later than the applicable time required for submission
of Competitive Bids.  Any such submission of a corrected Competitive Bid
shall constitute a revocation of the Competitive Bid that contained the
manifest error.  The Administrative Agent may, but shall not be required
to, notify any Lender of any manifest error it detects in such Lender’s
Competitive Bid.


 


(iv)         
Subject only to the provisions of subsections 2.6B, 2.6C and 4.2 and subsection
(iii) above, each Competitive Bid shall be irrevocable.


 


(d)          
Notice to Borrower of Competitive Bids.  Not later than 12:00 noon
(Minneapolis time) (i) on the requested date of any Bid Borrowing that is
to consist of Absolute Rate Loans, or (ii) three Business Days prior to
the requested date of any Bid Borrowing that is to consist of Eurodollar Margin
Bid Loans, the Administrative Agent shall notify Company of the identity of
each Lender that has submitted a Competitive Bid that complies with subsection
2.1A(iii)(c) and of the terms of the offers contained in each such
Competitive Bid.


 


(e)          
Acceptance of Competitive Bids.  Not later than 12:30 P.M.
(Minneapolis time) (i) on the requested date of any Bid Borrowing that is
to consist of Absolute Rate Loans, and (ii) three Business Days prior to
the requested date of any Bid Borrowing that is to consist of Eurodollar Margin
Bid Loans, Company shall notify the Administrative Agent of its acceptance or
rejection of the offers notified to it pursuant to subsection
2.1A(iii)(d).  Company shall be under no obligation to accept any
Competitive Bid and may choose to reject all Competitive Bids.  In the
case of acceptance, such notice shall specify the aggregate principal amount of
Competitive Bids for each Interest Period that is accepted.  Company may
accept any Competitive Bid in whole or in part; provided that:


 


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


 


(ii)          
the principal amount of each Bid Loan must be $5,000,000 and a multiple of
$1,000,000 in excess thereof;


 


(iii)         
the acceptance of offers may be made only on the basis of ascending Absolute
Rates or Eurodollar Bid Margins within each Interest Period; and


 


(iv)         
Company may not accept any offer that is described in subsection
2.1A(iii)(c)(iii) or that otherwise fails to comply with the requirements
hereof.


 


(f)           
Procedure for Identical Bids.  If two or more Lenders have
submitted Competitive Bids at the same Absolute Rate or Eurodollar Bid Margin,


 


27

















 


as the
case may be, for the same Interest Period, and the result of accepting all of
such Competitive Bids in whole (together with any other Competitive Bids at
lower Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted
for such Interest Period in conformity with the requirements of subsection
2.1A(iii)(e)(iii)) would be to cause the aggregate outstanding principal amount
of the applicable Bid Borrowing to exceed the amount specified therefor in the
related Bid Request, then, unless otherwise agreed by Company, the
Administrative Agent and such Lenders, such Competitive Bids shall be accepted
as nearly as possible in proportion to the amount offered by each such Lender
in respect of such Interest Period, with such accepted amounts being rounded to
the nearest whole multiple of $1,000,000.


 


(g)          
Notice to Lenders of Acceptance or Rejection of Bids.  The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its offer
has been accepted, of the amount of the Bid Loan or Bid Loans to be made by it
on the date of the applicable Bid Borrowing.  Any Competitive Bid or
portion thereof that is not accepted by Company by the applicable time
specified in subsection 2.1A(iii)(e) shall be deemed rejected.


 


(h)          
Notice of Eurodollar Base Rate.  If any Bid Borrowing is to consist
of Eurodollar Margin Loans, the Administrative Agent shall determine the
Eurodollar Base Rate for the relevant Interest Period, and promptly after
making such determination, shall notify Company and the Lenders that will be
participating in such Bid Borrowing of such Eurodollar Base Rate.


 


(i)           
Funding of Bid Loans.  Each Lender that has received notice
pursuant to subsection 2.1A(iii)(g) that all or a portion of its
Competitive Bid has been accepted by Company shall make the amount of its Bid
Loan(s) available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later than 2:00 P.M.
(Minneapolis time) on the date of the requested Bid Borrowing.  Upon
satisfaction of the applicable conditions set forth in subsection 4.2, the
Administrative Agent shall make all funds so received available to Company in
like funds as received by the Administrative Agent.


 


(j)           
Notice of Range of Bids.  After each Competitive Bid auction
pursuant to this subsection 2.1A(iii), the Administrative Agent shall notify
each Lender that submitted a Competitive Bid in such auction of the ranges of
bids submitted (without the bidder’s name) and accepted for each Bid Loan and
the aggregate amount of each Bid Borrowing.


 


B.           
Borrowing Mechanics.  Revolving Loans made on any Funding Date (other than
Swing Line Loans, Revolving Loans made pursuant to a request by Swing Line
Lender pursuant to subsection 2.1A(ii) or Revolving Loans made pursuant to
subsection 3.3B) shall be in an aggregate minimum amount of $5,000,000 and
multiples of $1,000,000 in excess of that amount.  Swing Line Loans made
on any Funding Date shall be in an aggregate minimum amount of $1,000,000 and
multiples of $500,000 in excess of that amount.  Whenever Company


 


28

















 


desires
that Lenders make Revolving Loans it shall deliver to Administrative Agent a
duly executed Notice of Revolving Borrowing no later than 1:00 P.M.
(Minneapolis time) at least three Business Days in advance of the proposed Funding
Date (in the case of a Eurodollar Rate Loan) or at least one Business Day in
advance of the proposed Funding Date (in the case of a Base Rate Loan). 
Whenever Company desires that Swing Line Lender make a Swing Line Loan, it
shall deliver to Administrative Agent a duly executed Notice of Revolving
Borrowing no later than 1:00 P.M. (Minneapolis time) on the proposed
Funding Date.  Revolving Loans may be continued as or converted into Base
Rate Loans and Eurodollar Rate Loans in the manner provided in subsection
2.2D.  In lieu of delivering a Notice of Revolving Borrowing, Company may
give Administrative Agent telephonic notice by the required time of any
proposed borrowing under this subsection 2.1B; provided that such notice
shall be promptly confirmed in writing by delivery of a duly executed Notice of
Revolving Borrowing to Administrative Agent on or before the applicable Funding
Date.


 


Neither Administrative Agent nor any Lender shall
incur any liability to Company in acting upon any telephonic notice referred to
above that Administrative Agent believes in good faith to have been given by an
Officer or other person authorized to borrow on behalf of Company or for
otherwise acting in good faith under this subsection 2.1B or under subsection
2.2D, and upon funding of Loans by Lenders, and upon conversion or continuation
of the applicable basis for determining the interest rate with respect to any
Loans pursuant to subsection 2.2D, in each case in accordance with this
Agreement, pursuant to any such telephonic notice Company shall have effected
Loans or a conversion or continuation, as the case may be, hereunder.


 


Company shall notify Administrative Agent prior to the
funding of any Revolving Loans in the event that any of the matters to which
Company is required to certify in the applicable Notice of Revolving Borrowing
is no longer true and correct as of the applicable Funding Date, and the
acceptance by Company of the proceeds of any Revolving Loans shall constitute a
re-certification by Company, as of the applicable Funding Date, as to the
matters to which Company is required to certify in the applicable Notice of
Revolving Borrowing.


 


Except as otherwise provided in subsections 2.6B, 2.6C
and 2.6G, a Notice of Revolving Borrowing for, or a Notice of Conversion/Continuation
for conversion to, or continuation of, a Eurodollar Rate Loan (or telephonic
notice in lieu thereof) shall be irrevocable on and after the related Interest
Rate Determination Date, and Company shall be bound to make a borrowing or to effect
a conversion or continuation in accordance therewith.


 


C.           
Disbursement of Funds.  All Revolving Loans shall be made by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that
neither Administrative Agent nor any Lender shall be responsible for any
default by any other Lender in that other Lender’s obligation to make a
Revolving Loan requested hereunder nor shall the amount of the Commitment of
any Lender to make the particular Type of Loan requested be increased or
decreased as a result of a default by any other Lender in that other Lender’s
obligation to make a Revolving Loan requested hereunder.  Promptly after
receipt by Administrative Agent of a Notice of Revolving Borrowing pursuant to
subsection 2.1A (or telephonic notice in lieu thereof), Administrative Agent
shall notify each Lender for that Type of Loan or Swing Line Lender, as the
case may be, of the proposed borrowing.  Each such Lender


 


29

















 


(other
than Swing Line Lender) shall make the amount of its Revolving Loan available
to Administrative Agent not later than 1:00 P.M. (Minneapolis time) on the
applicable Funding Date, and Swing Line Lender shall make the amount of its
Swing Line Loan available to Administrative Agent not later than 3:00 P.M.
(Minneapolis time) on the applicable Funding Date, in each case in same day
funds in Dollars, at the Funding and Payment Office.  Except as provided
in subsection 2.1A(ii) and subsection 3.3B with respect to Revolving Loans
used to repay Refunded Swing Line Loans or to reimburse any Issuing Lender for
the amount of a drawing under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in subsections 4.1
and 4.2, Administrative Agent shall make the proceeds of such Revolving Loans
available to Company on the applicable Funding Date by causing an amount of
same day funds in Dollars equal to the proceeds of all such Revolving Loans
received by Administrative Agent from Lenders to be credited to the account of
Company at the Funding and Payment Office.


 


Unless Administrative Agent shall have been notified
by any Lender prior to a Funding Date that such Lender does not intend to make
available to Administrative Agent the amount of such Lender’s Revolving Loan
requested on such Funding Date, Administrative Agent may assume that such
Lender has made such amount available to Administrative Agent on such Funding
Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount on such Funding
Date.  If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate.  If such Lender does not
pay such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify Company and Company shall
immediately pay such corresponding amount to Administrative Agent together with
interest thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent, at the rate payable under this
Agreement for Base Rate Loans.  Nothing in this subsection 2.1C shall be
deemed to relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that Company may have against any Lender
as a result of any default by such Lender hereunder.


 


D.           
The Register.  Administrative Agent, acting for these purposes
solely as an agent of Company (it being acknowledged that Administrative Agent,
in such capacity, and its officers, directors, employees, agent and affiliates
shall constitute Indemnitees under subsection 10.3), shall maintain (and make
available for inspection by Company and by each Lender, but only as to
information regarding the Loans made by such Lender, upon reasonable prior
notice at reasonable times) at its address referred to in subsection 10.8 a
register for the recordation of, and shall record, the names and addresses of
Lenders and the respective amounts of the Revolving Loan Commitment, Swing Line
Loan Commitment, Revolving Loans and Swing Line Loans of each Lender from time
to time (the “Register”).  Company,
Administrative Agent and Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof; all amounts owed with
respect to any Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof; and any request, authority or consent of any
Person who, at the


 


30

















 


time
of making such request or giving such authority or consent, is listed in the
Register as a Lender shall be conclusive and binding on any subsequent holder,
assignee or transferee of the corresponding Commitments or Loans.  Each
Lender shall record on its internal records the amount of its Loans and
Commitments and each payment in respect hereof, and any such recordation shall
be conclusive and binding on Company, absent manifest error, subject to the
entries in the Register, which shall, absent manifest error, govern in the event
of any inconsistency with any Lender’s records.  Failure to make any
recordation in the Register or in any Lender’s records, or any error in such
recordation, shall not affect any Loans or Commitments or any Obligations in
respect of any Loans.


 


E.            
Optional Notes.  If so requested by any Lender by written notice to
Company (with a copy to Administrative Agent) at least two Business Days prior
to the Closing Date or at any time thereafter, Company shall execute and
deliver to such Lender (and/or, if applicable and if so specified in such
notice, to any Person who is an assignee of such Lender pursuant to subsection
10.1) on the Closing Date (or, if such notice is delivered after the Closing
Date, promptly after Company’s receipt of such notice) a promissory note or
promissory notes to evidence such Lender’s Revolving Loans or Swing Line Loans,
substantially in the form of Exhibit IV or Exhibit V
annexed hereto, respectively, with appropriate insertions.


 


2.2                               Interest on the Loans.


 


A.           
Rate of Interest.  Subject to the provisions of subsections 2.6 and
2.7, each Revolving Loan shall bear interest on the unpaid principal amount
thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate or the Eurodollar
Rate.  Subject to the provisions of subsection 2.7, each Swing Line Loan
shall bear interest on the unpaid principal amount thereof from the date made
through maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate.  The applicable basis for determining the rate
of interest with respect to any Revolving Loan shall be selected by Company
initially at the time a Notice of Revolving Borrowing is given with respect to
such Loan pursuant to subsection 2.1B, and the basis for determining the
interest rate with respect to any Revolving Loan may be changed from time to
time pursuant to subsection 2.2D.  If on any day a Revolving Loan is
outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the Base Rate.


 


(i)           
Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the Revolving
Loans shall bear interest through maturity as follows:


 


(a)          
if a Base Rate Loan, then at the Base Rate; or


 


(b)          
if a Eurodollar Rate Loan, then at the sum of the Eurodollar Rate plus
the Eurodollar Rate Margin.


 


(ii)          
Each Bid Loan shall bear interest on the outstanding principal amount thereof
for the Interest Period therefor at a rate per annum equal to the Eurodollar
Rate


 


31

















 


for
such Interest Period plus (or minus) the Eurodollar Bid Margin, or at the
Absolute Rate for such Interest Period, as the case may be.


 


(iii)         
Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the Swing Line
Loans shall bear interest through maturity at the Base Rate.


 


B.           
Interest Periods.  In connection with each Eurodollar Rate Loan or Bid
Request, Company may, pursuant to the applicable Notice of Revolving Borrowing,
Notice of Conversion/Continuation or Bid Request, as the case may be, select an
interest period (each an “Interest Period”) to be applicable to such Loan, which Interest Period
shall be, at Company’s option, (a) as to each Eurodollar Rate Revolving
Loan, the period commencing on the date such Eurodollar Rate Revolving Loan is
disbursed or converted to or continued as a Eurodollar Rate Revolving Loan and
ending on the date one, two, three or six months thereafter, as selected by
Company in its Notice of Revolving Borrowing or nine or twelve months if
requested by Company and available to all the Lenders; and (b) as to each
Bid Loan, a period of not less than 7 days and not more than 360 days as
selected by Company in its Bid Request; provided that:


 


(i)           
the initial Interest Period for any Eurodollar Rate Loan shall commence on the
Funding Date in respect of such Loan, in the case of a Loan initially made as a
Eurodollar Rate Loan, or on the date specified in the applicable Notice of
Conversion/Continuation, in the case of a Loan converted to a Eurodollar Rate
Revolving Loan;


 


(ii)          
in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on the
day on which the next preceding Interest Period expires;


 


(iii)         
if an Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day; provided
that, if any Interest Period would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding
Business Day;


 


(iv)         
any Interest Period that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause
(v) of this subsection 2.2B, end on the last Business Day of a calendar
month;


 


(v)          
no Interest Period with respect to any portion of the Revolving Loans or any
Bid Loans shall extend beyond the Revolving Loan Commitment Termination Date;


 


(vi)         
there shall be no more than seven Interest Periods with respect to Revolving
Loans outstanding at any time; and


 


(vii)        
in the event Company fails to specify an Interest Period for any Eurodollar
Rate Loan in the applicable Notice of Revolving Borrowing or Notice of


 


32

















 


Conversion/Continuation,
Company shall be deemed to have selected an Interest Period of one month.


 


C.           
Interest Payments.  Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that, in the event any Swing Line Loans or any
Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection
2.4A(i), interest accrued on such Loans through the date of such prepayment
shall be payable on the next succeeding Interest Payment Date applicable to
Base Rate Loans (or, if earlier, at final maturity).


 


D.           
Conversion or Continuation.  Subject to the provisions of
subsection 2.6, Company shall have the option (i) to convert at any time
all or any part of its outstanding Revolving Loans equal to $1,000,000 and
multiples of $100,000 in excess of that amount from Loans bearing interest at a
rate determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the
expiration of any Interest Period applicable to a Eurodollar Rate Revolving
Loan, to continue all or any portion of such Loan equal to $1,000,000 and
multiples of $1,000,000 in excess of that amount as a Eurodollar Rate Revolving
Loan; provided, however, that a Eurodollar Rate Revolving Loan
may only be converted into a Base Rate Loan on the expiration date of an
Interest Period applicable thereto.


 


Company shall deliver a duly executed Notice of
Conversion/Continuation to Administrative Agent no later than 1:00 P.M.
(Minneapolis time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least
three Business Days in advance of the proposed conversion/continuation date (in
the case of a conversion to, or a continuation of, a Eurodollar Rate Revolving
Loan).  In lieu of delivering a Notice of Conversion/Continuation, Company
may give Administrative Agent telephonic notice by the required time of any
proposed conversion/continuation under this subsection 2.2D; provided
that such notice shall be promptly confirmed in writing by delivery of a duly
executed Notice of Conversion/Continuation to Administrative Agent on or before
the proposed conversion/continuation date.  Administrative Agent shall
notify each Lender of any Loan subject to a Notice of Conversion/Continuation.


 


E.            
Default Rate.  Upon the occurrence and during the continuation of
any Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand by Administrative Agent at a rate that is 2% per annum in excess of the
interest rate otherwise payable under this Agreement with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Base Rate Loans); provided that, in the case of
Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at
the time any such increase in interest rate is effective such Eurodollar Rate
Loans shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest
rate otherwise payable under this Agreement for Base Rate Loans.  Payment
or acceptance of the increased rates of interest provided for in this
subsection


 


33














 


2.2E
is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of Administrative Agent or any Lender.


 


F.            
Computation of Interest.  Except as may be provided with respect to a
Bid Loan, interest on the Loans shall be computed on the basis of a 365-day
year (or a 366-day year in case of a leap year) with respect to Base Rate Loans
bearing interest based on the Prime Rate and otherwise a 360-day year, in each
case for the actual number of days elapsed in the period during which it
accrues.  In computing interest on any Loan, the date of the making of
such Loan or the first day of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted from a Eurodollar Rate
Revolving Loan, the date of conversion of such Eurodollar Rate Revolving Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Revolving Loan, the date of conversion of such Base Rate Loan to such
Eurodollar Rate Loan, as the case may be, shall be excluded; provided
that if a Loan is repaid on the same day on which it is made, one day’s
interest shall be paid on that Loan.


 


G.           
Maximum Rate.  Notwithstanding the foregoing provisions of this
subsection 2.2, in no event shall the rate of interest payable by Company with
respect to any Loan exceed the maximum rate of interest permitted to be charged
under applicable law.


 


2.3                               Fees.


 


A.           
Facility Fee.  Company shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility
fee equal to the Applicable Margin times the actual daily amount of the
Revolving Loan Commitment Amount (or, if the Revolving Loan Commitment Amount
has terminated, on the Total Utilization of Revolving Loan Commitments), regardless
of usage.  The facility fee shall accrue at all times from the Closing
Date to the Revolving Loan Commitment Termination Date (and thereafter so long
as any Loans or Letter of Credit Usage remain outstanding), including at any
time during which one or more of the conditions in subsection 4.2 is not met,
and shall be due and payable in arrears on and to (but excluding) the last
Business Day of each March, June, September and December of each year
and on the Revolving Loan Commitment Termination Date (and, if applicable,
thereafter on demand).  The facility fee and utilization fee referred to
in subsection 2.3B shall be calculated quarterly in arrears, and if there is
any change in the Applicable Margin during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Margin separately for each
period during such quarter that such Applicable Margin was in effect.


 


B.           
Utilization Fee.  Company agrees to pay to the Administrative Agent
for the pro  rata account of each Lender, in accordance with such
Lender’s Loans, a utilization fee for each quarter during which the average
daily Total Utilization of Revolving Loan Commitments for such quarter is
greater than 50% of the Revolving Loan Commitment Amount.  The utilization
fee shall accrue at all such times, including at any time during which one or
more of the conditions in subsection 4.2 is not met.  If applicable, such
utilization fee shall be equal to the Applicable Margin times the
average daily Total Utilization of Revolving Loan Commitments during such
quarter, due and payable in arrears on the last Business Day of each March,
June,


 


34

















 


September and
December of each year and on the Revolving Loan Commitment Termination
Date (and, if applicable, thereafter on demand).


 


C.           
Other Fees.  Company agrees to pay to the Agents such fees in the
amounts and at the times separately agreed upon between Company and the Agents.


 


2.4                               Repayments, Prepayments and Reductions of
Revolving Loan Commitment Amount; General Provisions Regarding Payments.


 


A.           
Prepayments and Reductions in Revolving Loan Commitment Amount.


 


(i)           
Voluntary Prepayments.  Company may, upon written or telephonic
notice to Administrative Agent on or prior to 12:00 noon (Minneapolis time) on
the date of prepayment, which notice, if telephonic, shall be promptly
confirmed in writing, at any time and from time to time prepay, without premium
or penalty, any Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $1,000,000 and multiples of $500,000 in excess of
that amount.  Company may, upon not less than one Business Day’s prior
written or telephonic notice, in the case of Base Rate Loans, and three Business
Days’ prior written or telephonic notice, in the case of Eurodollar Rate Loans,
in each case given to Administrative Agent by 12:00 noon (Minneapolis time) on
the date required and, if given by telephone, promptly confirmed in writing to
Administrative Agent, who will promptly notify each Lender whose Loans are to
be prepaid of such prepayment, at any time and from time to time prepay,
without premium or penalty, any Revolving Loans on any Business Day in whole or
in part in an aggregate minimum amount of $5,000,000 and multiples of
$1,000,000 in excess of that amount.  Notice of prepayment having been
given as aforesaid, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified therein. 
Any such voluntary prepayment shall be applied as specified in subsection
2.4A(iv) and, in the case of Eurodollar Rate Loans, shall be subject to
subsection 2.6D.


 


(ii)          
Voluntary Reductions of Revolving Loan Commitments.  Company may,
upon not less than three Business Days’ prior written or telephonic notice
confirmed in writing to Administrative Agent, or upon such lesser number of
days’ prior written or telephonic notice, as determined by Administrative Agent
in its sole discretion, at any time and from time to time, terminate in whole
or permanently reduce in part, without premium or penalty, the Revolving Loan
Commitment Amount in an amount up to the amount by which the Revolving Loan
Commitment Amount exceeds the Total Utilization of Revolving Loan Commitments
at the time of such proposed termination or reduction; provided that any
such partial reduction of the Revolving Loan Commitment Amount shall be in an
aggregate minimum amount of $1,000,000 and multiples of $100,000 in excess of
that amount.  Company’s notice to Administrative Agent (who will promptly
notify each Lender of such notice) shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction shall be effective on the date
specified in Company’s notice and shall reduce the amount of the Revolving Loan
Commitment of each Lender


 


35

















 


proportionately
to its Pro Rata Share.  Any such voluntary reduction of the Revolving Loan
Commitment Amount shall be applied as specified in subsection 2.4A(iv).


 


(iii)         
Mandatory Prepayments Due to Reductions of Revolving Loan Commitment Amount. 
Company shall from time to time prepay first the Swing Line Loans,
second the Revolving Loans and third the Bid Loans (and, after prepaying all
Loans, Cash collateralize any outstanding Letters of Credit by depositing the
requisite amount with the Issuing Lender) to the extent necessary so that the
Total Utilization of Revolving Loan Commitments shall not at any time exceed
the Revolving Loan Commitment Amount then in effect.  At such time as the
Total Utilization of Revolving Loan Commitments shall be equal to or less than
the Revolving Loan Commitment Amount if no Event of Default has occurred and is
continuing, to the extent any Cash collateral was provided by Company and has
not been applied to any Obligations, such amount shall be released to Company.


 


(iv)         
Application of Prepayments.


 


(a)          
Application of Voluntary Prepayments by Type of Loans and Order of Maturity. 
Any voluntary prepayments pursuant to subsection 2.4A(i) shall be applied
as specified by Company in the applicable notice of prepayment; provided
that in the event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied first to
repay outstanding Swing Line Loans to the full extent thereof, and second
to repay outstanding Revolving Loans to the full extent thereof.


 


(b)          
Application of Mandatory Prepayments by Type of Loans.  Any
mandatory reduction of the Revolving Loan Commitment Amount pursuant to this
subsection 2.4A shall be in proportion to each Lender’s Pro Rata Share.


 


(c)          
Application of Prepayments to Base Rate Loans and Eurodollar Rate Loans. 
Considering Revolving Loans being prepaid separately, any prepayment thereof
shall be applied first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner that minimizes
the amount of any payments required to be made by Company pursuant to
subsection 2.6D.


 


(v)          
No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan
Lender.


 


B.           
General Provisions Regarding Payments.


 


(i)           
Manner and Time of Payment.  All payments by Company of principal,
interest, fees and other Obligations shall be made in Dollars in same day
funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 2:00 P.M.
(Minneapolis time) on the date due at the Funding and Payment Office for the
account of Lenders; funds received by Administrative Agent after that time on
such due date shall be deemed to have been paid by Company on the next
succeeding Business Day.


 


36

















 


(ii)          
Application of Payments to Principal and Interest.  Except as
provided in subsection 2.2C, all payments in respect of the principal amount of
any Loan shall include payment of accrued interest on the principal amount
being repaid or prepaid, and all such payments shall be applied to the payment
of interest before application to principal.


 


(iii)         
Apportionment of Payments.  Aggregate payments of principal and
interest shall be apportioned among all outstanding Loans to which such
payments relate, in each case proportionately to Lenders’ respective Pro Rata
Shares or, in the case of Bid Loans, for the account of the respective Lenders
entitled to such payments.  Administrative Agent shall promptly distribute
to each Lender, at the account specified in the payment instructions delivered
to Administrative Agent by such Lender, its Pro Rata Share of all such payments
received by Administrative Agent and fees of such Lender, if any, when received
by Administrative Agent pursuant to subsections 2.3 and 3.2. 
Notwithstanding the foregoing provisions of this subsection 2.4B(iii), if,
pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Revolving Loans, Administrative Agent shall give effect thereto
in apportioning interest payments received thereafter.


 


(iv)         
Payments on Business Days.  Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of interest hereunder
or of the commitment fees hereunder, as the case may be.


 


C.           
Payments after Event of Default.  Upon the occurrence and
during the continuation of an Event of Default, if requested by Requisite
Lenders, or upon acceleration of the Obligations pursuant to Section 8,
all payments received by Administrative Agent, whether from Company or
otherwise may, in the discretion of Administrative Agent, be held by Administrative
Agent, and/or (then or at any time thereafter) shall be applied in full or in
part by Administrative Agent, in each case in the following order of priority:


 


(i)           
to the payment of all costs and expenses of such sale, collection or other
realization, all other expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, and all amounts for which
Administrative Agent is entitled to compensation (including the fees described
in subsection 2.3C), reimbursement and indemnification under any Loan Document
and all advances made by Administrative Agent thereunder for the account of
Company, and to the payment of all costs and expenses paid or incurred by
Administrative Agent in connection with the Loan Documents, all in accordance
with subsections 9.4, 10.2 and 10.3 and the other terms of this Agreement and
the Loan Documents;


 


(ii)          
thereafter, to the payment of all other Obligations for the ratable benefit of
the holders thereof (subject to the provisions of subsection
2.4B(ii) hereof); and


 


37

















 


(iii)         
thereafter, to the payment to or upon the order of Company or to whosoever may
be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.


 


2.5                               Use of Proceeds.


 


A.           
Loans.  The proceeds of any Loans may be applied by Company for working
capital or any other general corporate purposes.


 


B.           
Margin Regulations.  No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board or to violate
the Exchange Act, in each case as in effect on the date or dates of such
borrowing and such use of proceeds.


 


2.6                               Special Provisions Governing Eurodollar
Rate Loans.


 


Notwithstanding any other provision of this Agreement
to the contrary, the following provisions shall govern with respect to
Eurodollar Rate Loans as to the matters covered:


 


A.           
Determination of Applicable Interest Rate.  On each Interest Rate
Determination Date, Administrative Agent shall determine in accordance with the
terms of this Agreement (which determination shall, absent manifest error, be
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurodollar Rate Revolving Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to Company and each
applicable Lender.


 


B.           
Inability to Determine Applicable Interest Rate.  In the event that
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date that by reason of circumstances affecting the interbank
Eurodollar market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of Eurodollar Rate, Administrative Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Company and
each Lender of such determination, whereupon (i) no Loans may be made as,
or converted to, Eurodollar Rate Revolving Loans until such time as
Administrative Agent notifies Company and Lenders that the circumstances giving
rise to such notice no longer exist and (ii) any Notice of Revolving
Borrowing or Notice of Conversion/Continuation given by Company with respect to
the Loans in respect of which such determination was made shall be deemed to be
for a Base Rate Loan.


 


C.       
Illegality or
Impracticability of Eurodollar Rate Loans.  In the event that on any
date any Lender shall have determined (which determination shall be conclusive
and binding upon all parties hereto but shall be made only after consultation
with Company and Administrative Agent) that the making, maintaining or
continuation of its Eurodollar Rate Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law,


 


38

















 


treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the interbank Eurodollar market
or the position of such Lender in that market, then, and in any such event,
such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or
by telephone confirmed in writing) to Company and Administrative Agent of such
determination.  Administrative Agent shall promptly notify each other
Lender of the receipt of such notice.  Thereafter (a) the obligation
of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar
Rate Revolving Loans shall be suspended until such notice shall be withdrawn by
the Affected Lender, (b) to the extent such determination by the Affected
Lender relates to a Eurodollar Rate Loan then being requested by Company
pursuant to a Notice of Revolving Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or
convert such Loan to, as the case may be) a Base Rate Loan, (c) the
Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans
(the “Affected Loans”) shall be terminated
at the earlier to occur of the expiration of the Interest Period then in effect
with respect to the Affected Loans or when required by law, and (d) the
Affected Loans shall automatically convert into Base Rate Loans on the date of
such termination.  Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a Eurodollar
Rate Loan then being requested by Company pursuant to a Notice of Revolving
Borrowing, Bid Request or a Notice of Conversion/Continuation, Company shall
have the option, subject to the provisions of subsection 2.6D, to rescind such
Notice of Revolving Borrowing, Bid Request or Notice of Conversion/Continuation
as to all Lenders by giving notice (by telefacsimile or by telephone confirmed
in writing) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above. 
Administrative Agent shall promptly notify each other Lender of the receipt of
such notice.  Except as provided in the immediately preceding sentence,
nothing in this subsection 2.6C shall affect the obligation of any Lender other
than an Affected Lender to make or maintain Loans as, or to convert Loans to,
Eurodollar Rate Loans in accordance with the terms of this Agreement.


 


D.           
Compensation For Breakage or Non-Commencement of Interest Periods.  Company shall
compensate each Lender, upon written request by that Lender pursuant to
subsection 2.8A, for all reasonable losses, expenses and liabilities (including
any interest paid by that Lender to lenders of funds borrowed by it to make or
carry its Eurodollar Rate Loans and any loss, expense or liability sustained by
that Lender in connection with the liquidation or re-employment of such funds)
which that Lender may sustain: (i) if for any reason (other than a default
by that Lender) a borrowing of any Eurodollar Rate Loan does not occur on a
date specified therefor in a Notice of Revolving Borrowing or a telephonic
request therefor, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request therefor, (ii) if any
prepayment or other principal payment or any conversion of any of its
Eurodollar Rate Loans (including any prepayment or conversion occasioned by the
circumstances described in subsection 2.6C) occurs on a date prior to the last
day of an Interest Period applicable to that Loan, (iii) if any prepayment
of any of its Eurodollar Rate Loans is not made on any date specified in a notice
of prepayment given by Company, or (iv) as a consequence of any other
default by Company in the repayment of its Eurodollar Rate Loans on a date
prior to the last day


 


39

















 


of
the Interest Period therefor.  Breakage cost loss shall consist of an
amount equal to the excess, if a positive number, of (i) the amount of
interest that would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Eurodollar Rate Loans provided
for herein (excluding, however, the Eurodollar Rate Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
Eurodollar market.


 


E.            
Booking of Eurodollar Rate Loans.  Any Lender may make, carry
or transfer Eurodollar Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of that Lender.


 


F.            
Assumptions Concerning Funding of Eurodollar Rate Loans.  Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had funded each of its Eurodollar Rate
Loans through the purchase of a Eurodollar deposit bearing interest at the rate
obtained pursuant to clause (i) of the definition of Eurodollar Rate in an
amount equal to the amount of such Eurodollar Rate Loan and having a maturity
comparable to the relevant Interest Period, whether or not its Eurodollar Rate
Loans had been funded in such manner.


 


G.           
Eurodollar Rate Loans After Default.  After the occurrence of and
during the continuation of an Event of Default, (i) Company may not elect
to have a Loan be made or maintained as, or converted to, a Eurodollar Rate
Loan after the expiration of any Interest Period then in effect for that Loan
and (ii) subject to the provisions of subsection 2.6D, any Notice of
Revolving Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be for a Base Rate Loan or, if the conditions to
making a Loan set forth in subsection 4.2 cannot then be satisfied, to be
rescinded by Company.


 


2.7                               Increased Costs; Taxes; Capital Adequacy.


 


A.           
Compensation for Increased Costs.  Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby including, for the avoidance of doubt, Excluded Taxes), in the event
that any Lender (including any Issuing Lender) shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any Change in Law:


 


(i)           
subjects such Lender to any additional tax of any kind whatsoever with respect
to this Agreement or any of its obligations hereunder (including with respect
to issuing or maintaining any Letters of Credit or purchasing or maintaining
any participations therein or maintaining any Commitment hereunder) or any
payments to such Lender of principal, interest, fees or any other amount
payable hereunder (except for the imposition of, or any change in the rate of,
any Excluded Tax payable by such Lender);


 


40

















 


(ii)          
imposes, modifies or holds applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, or advances or loans
by, or other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the definition of
Eurodollar Rate); or


 


(iii)         
imposes any other condition (other than with respect to Taxes) on or affecting
such Lender or its obligations hereunder or the interbank Eurodollar market;


 


and
the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender with respect thereto; then, in any such
case, Company shall promptly pay to such Lender, upon receipt of the statement
referred to in subsection 2.8A, such additional amount or amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion may reasonably determine) as
may be necessary to compensate such Lender on an after-tax basis for any such
increased cost or reduction in amounts received or receivable hereunder. 
Company shall not be required to compensate a Lender pursuant to this
subsection 2.7A for any increased cost or reduction in respect of a period
occurring more than 90 days prior to the date on which such Lender notifies
Company of such Change in Law and such Lender’s intention to claim compensation
therefor, except, if the Change in Law giving rise to such increased cost or reduction
is retroactive, no such 90 day time limitation shall apply to such period of
retroactivity, so long as such Lender requests compensation within 90 days from
the date on which such Lender obtained actual knowledge of such Change in Law.


 


B.           
Taxes.


 


(i)           
Payments to Be Free and Clear.  Any and all payments by or on
account of any obligation of Company under this Agreement and the other Loan
Documents (except as required by law) shall be made free and clear of, and
without any deduction or withholding on account of, any Indemnified Taxes.


 


(ii)          
Grossing-up of Payments.  If Company or any other Person is
required by law to make any deduction or withholding on account of any Tax from
any sum paid or payable by Company to Administrative Agent or any Lender under
any of the Loan Documents:


 


(a)          
Company shall notify Administrative Agent of any such requirement or any change
in any such requirement as soon as Company becomes aware of it;


 


(b)          
Company shall timely pay any such Tax to the relevant Government Authority when
such Tax is due, in accordance with applicable law;


 


(c)          
unless such Tax is an Excluded Tax, the sum payable by Company shall be
increased to the extent necessary to ensure that, after making the required


 


41

















 


deductions
(including deductions applicable to additional sums payable under this
subsection 2.7B(ii)), Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to the sum it would have received had
no such deduction been required or made; and


 


(d)          
within 30 days after the due date of payment of any Tax which it is required by
clause (b) above to pay, Company shall deliver to Administrative Agent the
original or a certified copy of an official receipt or other document that
provides reasonable evidence the payment and its remittance to the relevant
Government Authority.


 


(iii)         
Indemnification by Company.  Company shall indemnify Administrative
Agent and each Lender, within 30 days after the date Administrative Agent or
such Lender (as the case may be) makes written demand therefor, for the full
amount of any Indemnified Taxes (including for the full amount of any
Indemnified Taxes imposed or asserted on or attributable to amounts payable
under this subsection 2.7B(iii)) paid by Administrative Agent or such Lender,
as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant Government
Authority.  A certificate as to the amount of such payment or liability
delivered to Company by a Lender (with a copy to Administrative Agent), or by
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.


 


(iv)         
Tax Status of Lenders.  Unless not legally entitled to do so:


 


(a)          
any Foreign Lender shall deliver two (2) copies to Company and
Administrative Agent on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter, as may
be necessary in the determination of Company or Administrative Agent, each in
the reasonable exercise of its discretion), of either:


 


(1)          
properly completed and duly executed copies of Internal Revenue Service
Form W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party, or


 


(2)          
properly completed and duly executed copies of Internal Revenue Service
Form W-8ECI, or


 


(3)          
in the case of a Foreign Lender claiming the benefits of the exemption for
“portfolio interest” under Section 881(c) of the Internal Revenue
Code, (A) a duly executed certificate to the effect that such Foreign
Lender is not (i) a “bank” within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a
ten-percent shareholder (within the meaning of Section 881(c)(3)(B) of
the Internal Revenue Code) of Company or (iii) a controlled foreign
corporation described in Section 881(c)(3)(C) of the Internal Revenue
Code and (B) properly


 


42

















 


completed
and duly executed copies of Internal Revenue Service Form W-8BEN,


 


in each case together
with properly completed and duly executed copies of any other form prescribed
by applicable law as a basis for claiming exemption from or a reduction in any
Tax and such supplementary documentation as may be prescribed by applicable law
to permit Company and Administrative Agent to determine the withholding or
deduction required to be made, if any;


 


(b)          
any Lender that is not a Foreign Lender and has not otherwise established to
the reasonable satisfaction of Company and Administrative Agent that it is an
exempt recipient (as defined in section 6049(b)(4) of the Internal Revenue
Code and the United States Treasury Regulations thereunder) shall deliver to
Company and Administrative Agent two (2) copies on or prior to the date on
which such Lender becomes a Lender under this Agreement (and from time to time
thereafter as prescribed by applicable law or upon the request of Company or
Administrative Agent), duly executed and properly completed copies of Internal
Revenue Service Form W-9; and


 


(c)          
each Lender hereby agrees, from time to time after the initial delivery by such
Lender of such forms, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect, that such Lender shall promptly
(1) deliver to Administrative Agent and Company two original copies of
renewals, amendments or additional or successor forms, properly completed and
duly executed by such Lender, together with any other certificate or statement
of exemption required in order to confirm or establish that such Lender is
entitled to an exemption from or reduction of any Tax with respect to payments
to such Lender under the Loan Documents and, if applicable, that such Lender
does not act for its own account with respect to any portion of such payment,
or (2) notify Administrative Agent and Company of its inability to deliver
any such forms, certificates or other evidence.


 


(v)          
Refunds.  If Company believes that a Lender or Administrative Agent
shall be entitled to a refund for any Indemnified Tax that Company has paid
hereunder, it shall notify such Lender or Administrative Agent, as applicable,
in writing of the availability of such refund and such Lender or Administrative
Agent shall, within 30 days after the receipt of a request from Company, apply
for such refund at Company’s sole expense.  If Company has paid any
Indemnified Taxes pursuant to this subsection 2.7B and any Lender or Administrative
Agent at any time thereafter receives, in its sole judgment, a refund of such
Indemnified Taxes (whether by receipt of a payment or direct offset for other
such Taxes due), then such Lender or Administrative Agent shall promptly pay to
Company the amount of such refund or credit (net of all expenses incurred by
such Lender or Administrative Agent to obtain such refund and without interest,
except for the after-Tax amount of any interest paid by the relevant Government
Authority with respect to the refund); provided, however, that
under no circumstances shall any Lender or Administrative Agent be required to
make a payment under this


 


43

















 


subsection
2.7B(v) to the extent the after-Tax proceeds that such Lender or
Administrative Agent receives under this Agreement or any other Loan Document
(determined after any payment required under this subsection 2.7B(v)) is less
than the after-Tax proceeds that such Lender or Administrative Agent would have
received (as determined by such Lender or Administrative Agent in its sole
judgment) had no Indemnified Taxes been imposed on the relevant payment
hereunder.  If a Lender or Administrative Agent makes a payment to Company
under this subsection 2.7B(v) and such Lender or Administrative Agent is
required to repay such refund to any Government Authority, Company agrees to
repay the amount paid over to Company under this subsection 2.7B(v) (plus
any penalties, interest, and other related charges imposed on such Lender or
Administrative Agent by the applicable Government Authority with respect to the
repayment of such refund).


 


C.           
Capital Adequacy Adjustment.  If any Lender shall have
determined that any Change in Law regarding capital adequacy has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender’s Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such Change in Law (taking into
consideration the policies of such Lender or such controlling corporation with
regard to capital adequacy), then from time to time, within ten Business Days
after receipt by Company from such Lender of the statement referred to in
subsection 2.8A, Company shall pay to such Lender such additional amount or amounts
as will compensate such Lender or such controlling corporation on an after-tax
basis for such reduction.  Company shall not be required to compensate a
Lender pursuant to this subsection 2.7C for any reduction in respect of a
period occurring more than 90 days prior to the date on which such Lender
notifies Company of such Change in Law and such Lender’s intention to claim
compensation therefor, except, if the Change in Law giving rise to such
reduction is retroactive, no such 90 day time limitation shall apply to such
period of retroactivity, so long as such Lender requests compensation within 90
days from the date on which such Lender obtained actual knowledge of such
Change in Law.


 


2.8         
Statement of Lenders; Obligation of Lenders and Issuing Lenders to Mitigate.


 


A.           
Statements.  Each Lender claiming compensation or reimbursement
pursuant to subsection 2.6D, 2.7 or 2.8B shall deliver to Company (with a copy
to Administrative Agent) a written statement, setting forth in reasonable detail
the basis of the calculation of such compensation or reimbursement, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.


 


B.           
Mitigation.  Each Lender and Issuing Lender agrees that, as
promptly as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such Lender or
Issuing Lender, as the case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to receive
payments under subsection 2.7, it will use reasonable efforts to make, issue,
fund or maintain the


 


44

















 


Commitments
of such Lender or the Loans or Letters of Credit of such Lender or Issuing
Lender through another lending or letter of credit office of such Lender or
Issuing Lender, if (i) as a result thereof the circumstances which would
cause such Lender to be an Affected Lender would cease to exist or the
additional amounts which would otherwise be required to be paid to such Lender
or Issuing Lender pursuant to subsection 2.7 would be materially reduced and
(ii) as determined by such Lender or Issuing Lender in its good faith,
reasonable judgment, such action would not otherwise be disadvantageous to such
Lender or Issuing Lender; provided that such Lender or Issuing Lender
will not be obligated to utilize such other lending or letter of credit office
pursuant to this subsection 2.8B unless Company agrees to pay all incremental
expenses incurred by such Lender or Issuing Lender as a result of utilizing
such other lending or letter of credit office as described above.


 


2.9         
Replacement of a Lender.


 


If (i) Company receives a statement of amounts
due pursuant to subsection 2.8A from a Lender (other than for breakage costs
under subsection 2.6D), (ii) a Lender is a Defaulting Lender, (iii) a
Lender (a “Non-Consenting Lender”)
refuses to consent to an amendment, modification or waiver of this Agreement
that, pursuant to subsection 10.6, requires consent of 100% of the Lenders or
100% of the Lenders with Obligations directly affected or (iv) a Lender
becomes an Affected Lender (any such Lender, a “Subject Lender”), so long as (i) no Event of Default
shall have occurred and be continuing and Company has obtained a commitment
from another Lender or an Eligible Assignee to purchase at par the Subject
Lender’s Loans and assume the Subject Lender’s Commitments and all other
obligations of the Subject Lender hereunder, (ii) such Lender is not an
Issuing Lender with respect to any Letters of Credit outstanding (unless all
such Letters of Credit are terminated or arrangements reasonably acceptable to such
Issuing Lender (such as a “back-to-back” letter of credit) are made) and (iii),
if applicable, the Subject Lender is unwilling to withdraw the notice delivered
to Company pursuant to subsection 2.8 upon 10 days prior written notice to the
Subject Lender and Administrative Agent and/or is unwilling to remedy its
default upon three days prior written notice to the Subject Lender and
Administrative Agent, Company may require the Subject Lender to assign all of
its Loans and Commitments to such other Lender, Lenders, Eligible Assignee or
Eligible Assignees pursuant to the provisions of subsection 10.1B; provided
that, prior to or concurrently with such replacement, (1) the Subject
Lender shall have received payment in full of all principal, interest, fees and
other amounts (including all amounts under subsections 2.6D, 2.7 and/or 2.8B
(if applicable)) through such date of replacement and a release from its
obligations under the Loan Documents, (2) the processing fee required to
be paid by subsection 10.1B(i) shall have been paid to Administrative
Agent by Company or the assignee, (3) all of the requirements for such
assignment contained in subsection 10.1B, including, without limitation, the
consent of Administrative Agent (if required) and the receipt by Administrative
Agent of an executed Assignment Agreement and other supporting documents, have
been fulfilled, and (4) in the event such Subject Lender is a
Non-Consenting Lender, each assignee shall consent, at the time of such
assignment, to each matter in respect of which such Subject Lender was a
Non-Consenting Lender.


 


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2.10       
Increase in Commitments.


 


A.           
Request for Increase.  Provided there exists no Potential Event of Default
or Event of Default, upon notice to the Administrative Agent (which shall
promptly notify the Lenders), Company may from time to time request an increase
in the Revolving Loan Commitment Amount by an amount (for all such requests)
not exceeding $250,000,000; provided that (i) the Revolving Loan
Commitment Amount may not exceed $1,000,000,000; and provided further that any
such request for an increase shall be in a minimum amount of $25,000,000 and in
multiples of $5,000,000 in excess thereof and (ii) Company may not request
more than two increases during any twelve month period.  At the time of
sending such notice, Company (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 Revolving Loan Commitment and, if so, whether by an amount equal
to, greater than, or less than its Pro Rata Share of such requested
increase.  Any Lender not responding within such time period shall be
deemed to have declined to increase its Revolving Loan Commitment.


 


C.           
Notification by Administrative Agent; Additional Lenders.  The
Administrative Agent shall notify Company and each Lender of the Lenders’
responses to each request made hereunder.  If the Lenders do not agree to
the full amount of a requested increase, subject to the approval of the
Administrative Agent and the Issuing Lender (which approvals shall not be
unreasonably withheld or delayed), Company 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 Revolving Loan
Commitment Amount is increased in accordance with this Section, the
Administrative Agent and Company shall determine the effective date (the “Increase Effective Date”) and the final
allocation of such increase.  The Administrative Agent shall promptly
notify Company and the Lenders of the final allocation of such increase, the
Increase Effective Date and revised Pro Rata Shares.


 


E.            
Conditions to Effectiveness of Increase.  As a condition precedent to
such increase, Company shall deliver to the Administrative Agent an Officer’s
Certificate dated as of the Increase Effective Date (i) certifying and
attaching the resolutions adopted by Company approving or consenting to such
increase, and (ii) certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in
Section 5 and the other Loan Documents are true and correct on and as of
the Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and (B) no Potential Event of Default
or Event of Default exists.  Company shall prepay any Revolving Loans
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to subsection 2.6D) to the extent necessary to keep the
outstanding Revolving Loans ratable with any revised Pro Rata Shares arising
from any nonratable increase in the Revolving Loan Commitments under this
subsection.


 


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F.            
Conflicting Provisions.  This Section shall supersede any
provisions in subsection 10.5 or 10.6 to the contrary.


 


2.11       
Extension of Revolving Loan Commitment Termination Date.


 


Prior to the Revolving Loan Commitment Termination
Date, Company may request an extension of the Revolving Loan Commitment
Termination Date by submitting a request for an extension to the Administrative
Agent (an “Extension Request”) no
earlier than 90 days, but no later than 60 days prior to either or both of the
first and second anniversaries of the Closing Date.  The Extension Request
must specify the new Revolving Loan Commitment Termination Date requested by
Company and the date (which must be at least 30 days after the Extension
Request is delivered to the Administrative Agent) as of which the Lenders must
respond to the Extension Request, which date shall not be less than 20 days
prior to the applicable anniversary date (the “Response Date”).  Promptly upon receipt of an Extension
Request, the Agent shall notify each Lender of the contents thereof and shall
request each Lender to approve the Extension Request.  Each Lender may, in
its sole and absolute discretion, approve or deny any Extension Request. 
Each Lender approving the Extension Request (an “Extending Lender”) shall deliver its written consent no later
than the Response Date.  The Administrative Agent shall provide written
notice to Company of the Lenders’ response no later than 15 days prior to the
applicable anniversary date.  The Extending Lenders’ Revolving Loan
Commitments (and the Revolving Loan Commitment Termination Date) shall be
extended for one additional year after the Revolving Loan Commitment Termination
Date in effect at the time the Extension Request is received, including the
Revolving Loan Commitment Termination Date as one of the days in the
calculation of the days elapsed; provided that at least 50% of the Revolving
Loan Commitment Amount is extended or otherwise committed to by Extending
Lenders and any new lenders.  Otherwise, the Revolving Loan Commitment
Termination Date shall not be extended.


 


The Commitment of any Lender that declines an
Extension Request or fails to approve an Extension Request on or prior to the
Response Date (a “Declining Lender”)
shall be terminated on the Revolving Loan Commitment Termination Date in effect
at the time the Extension Request is received (without regard to any extension
by other Lenders) and Company shall pay to such Declining Lender all principal,
interest, fees and other amounts owing to such Declining Lender on the
Revolving Loan Commitment Termination Date in effect at the time the Extension
Request is received (without regard to any extension by other Lenders). 
Company shall have the right, on or prior to the applicable anniversary date,
to replace any Declining Lender with a third party financial institution
reasonably acceptable to the Administrative Agent and Company in the manner set
forth in subsection 2.9.


 


Section 3.            
LETTERS OF CREDIT


 


3.1         
Issuance of Letters of Credit and Lenders’ Purchase of Participations
Therein.


 


A.           
Letters of Credit.  Company may request, in accordance with the
provisions of this subsection 3.1, from time to time during the period from the
Effective Date to but excluding the Revolving Loan Commitment Termination Date,
that one or more Lenders issue Letters of Credit for the account of Company for
the general corporate purposes of


 


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Company
or a Subsidiary of Company.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, any one or more Lenders may, but (except as provided in
subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in
accordance with the provisions of this subsection 3.1; provided that
Company shall not request that any Lender issue (and no Lender shall issue):


 


(i)           
any Letter of Credit if, after giving effect to such issuance, the Total
Utilization of Revolving Loan Commitments would exceed the Revolving Loan
Commitment Amount then in effect;


 


(ii)          
any Letter of Credit if, after giving effect to such issuance, the Letter of
Credit Usage would exceed $50,000,000;


 


(iii)         
any Letter of Credit having an expiration date later than the earlier of
(a) five days prior to the Revolving Loan Commitment Termination Date and
(b) the date which is one year from the date of issuance of such Letter of
Credit; provided that the immediately preceding clause (b) shall
not prevent any Issuing Lender from agreeing that a Letter of Credit will
automatically be extended for one or more successive periods not to exceed one year
each unless such Issuing Lender elects not to extend for any such additional
period; and provided, further that such Issuing Lender shall
elect not to extend such Letter of Credit if it has knowledge that an Event of
Default has occurred and is continuing (and has not been waived in accordance
with subsection 10.6) at the time such Issuing Lender must elect whether or not
to allow such extension; or


 


(iv)         
any Letter of Credit denominated in a currency other than Dollars.


 


Notwithstanding anything contained in this Agreement,
no Issuing Lender shall be under any obligation to issue any Letter of Credit
if (i) the Issuing Lender has received written notice that the conditions
precedent set forth in subsection 4.3 have not been satisfied or (ii) a
default of any Lender’s obligations to fund under subsection 3.3C exists or any
Lender is at such time a Defaulting Lender hereunder, unless the Issuing Lender
has entered into satisfactory arrangements with Company or such Lender to
eliminate the Issuing Lender’s risk with respect to such Lender.


 


B.           
Mechanics of Issuance.


 


(i)           
Request for Issuance.  Whenever Company desires the issuance of a
Letter of Credit, it shall deliver to the proposed Issuing Lender (with a copy
to Administrative Agent if Administrative Agent is not the proposed Issuing
Lender) a Request for Issuance no later than 1:00 P.M. (Minneapolis time)
at least five Business Days or such shorter period as may be agreed to by the
Issuing Lender in any particular instance, in advance of the proposed date of
issuance.  The Issuing Lender, in its reasonable discretion, may require
changes in the text of the proposed Letter of Credit or any documents described
in or attached to the Request for Issuance.  In furtherance of the
provisions of subsection 10.8, and not in limitation thereof, Company may
submit Requests for Issuance by telefacsimile and Administrative Agent and
Issuing Lenders may rely and act upon any such Request for Issuance without
receiving an original signed copy thereof.


 


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Company shall
notify the applicable Issuing Lender (and Administrative Agent, if
Administrative Agent is not such Issuing Lender) prior to the issuance of any
Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Request for Issuance is no longer true
and correct as of the proposed date of issuance of such Letter of Credit, and
upon the issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Request for Issuance.


 


(ii)          
Determination of Issuing Lender.  Upon receipt by a proposed
Issuing Lender of a Request for Issuance pursuant to subsection
3.1B(i) requesting the issuance of a Letter of Credit, (a) in the
event Administrative Agent is the proposed Issuing Lender, Administrative Agent
shall be the Issuing Lender with respect to such Letter of Credit and shall
issue such Letter of Credit, notwithstanding the fact that the Letter of Credit
Usage with respect to such Letter of Credit and with respect to all other
Letters of Credit issued by Administrative Agent, when aggregated with
Administrative Agent’s outstanding Revolving Loans and Swing Line Loans, may
exceed the amount of Administrative Agent’s Revolving Loan Commitment then in
effect; and (b) in the event any other Lender is the proposed Issuing
Lender, such Lender shall promptly notify Company and Administrative Agent
whether or not, in its sole discretion, it has elected to issue such Letter of
Credit, and (1) if such Lender so elects to issue such Letter of Credit it
shall be the Issuing Lender with respect thereto and (2) if such Lender
fails to so promptly notify Company and Administrative Agent or declines to
issue such Letter of Credit, Company may request Administrative Agent or
another Lender to be the Issuing Lender with respect to such Letter of Credit
in accordance with the provisions of this subsection 3.1B.


 


(iii)         
Issuance of Letter of Credit.  Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection 4.3,
the Issuing Lender shall issue the requested Letter of Credit in accordance
with the Issuing Lender’s standard operating procedures.


 


(iv)         
Notification to Lenders.  Upon the issuance of or amendment to any
Letter of Credit the applicable Issuing Lender shall promptly notify
Administrative Agent and Company of such issuance or amendment in writing and
such notice shall be accompanied by a copy of such Letter of Credit or
amendment.  Upon receipt of such notice (or, if Administrative Agent is
the Issuing Lender, together with such notice), Administrative Agent shall notify
each Lender in writing of such issuance or amendment and the amount of such
Lender’s respective participation in such  Letter of Credit or amendment,
and, if so requested by a Lender, Administrative Agent shall provide such
Lender with a copy of such Letter of Credit or amendment.  In the event
that Issuing Lender is other than Administrative Agent, such Issuing Lender
will send by facsimile transmission to Administrative Agent, promptly upon the
first Business Day of each week, a report of its daily aggregate maximum amount
available for drawing under commercial Letters of Credit for the previous
week.  Upon receipt of such report, Administrative Agent shall notify each
Lender in writing of the contents thereof.


 


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C.           
Lenders’ Purchase of Participations in Letters of Credit.  Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
agrees to, have irrevocably purchased from the Issuing Lender a participation
in such Letter of Credit and any drawings honored thereunder in an amount equal
to such Lender’s Pro Rata Share of the maximum amount that is or at any time
may become available to be drawn thereunder.


 


3.2         
Letter of Credit Fees.


 


Company agrees to pay the following amounts with
respect to Letters of Credit issued hereunder:


 


(i)           
with respect to each Letter of Credit, (a) a fronting fee, payable
directly to the applicable Issuing Lender for its own account, in an amount
agreed to between Company and the applicable Issuing Lender and (b) a
letter of credit fee, payable to Administrative Agent for the account of
Lenders, equal to the applicable Eurodollar Rate Margin plus, for as
long as any increased rates of interest apply pursuant to subsection 2.2E, 2%
per annum, multiplied by the daily amount available to be drawn under
such Letter of Credit, each such fronting fee or letter of credit fee to be
payable in arrears on and to (but excluding) the last Business Day of each
March, June, September and December of each year and computed on the
basis of a 360-day year for the actual number of days elapsed; and


 


(ii)          
with respect to the issuance, amendment or transfer of each Letter of Credit
and each payment of a drawing made thereunder (without duplication of the fees
payable under clause (i) above), documentary and processing charges
payable directly to the applicable Issuing Lender for its own account in
accordance with such Issuing Lender’s standard schedule for such charges in effect
at the time of such issuance, amendment, transfer or payment, as the case may
be.


 


For purposes of calculating any fees payable under
clause (i) of this subsection 3.2, the daily amount available to be drawn
under any Letter of Credit shall be determined as of the close of business on
any date of determination.


 


3.3         
Drawings and Reimbursement of Amounts Paid Under Letters of Credit.


 


A.           
Responsibility of Issuing Lender With Respect to Drawings.  In determining
whether to honor any drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Lender shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so as to ascertain
whether they appear on their face to be in accordance with the terms and
conditions of such Letter of Credit.


 


B.           
Reimbursement by Company of Amounts Paid Under Letters of Credit.  In the event an
Issuing Lender has determined to honor a drawing under a Letter of Credit
issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the “Reimbursement
Date”)
in an amount in Dollars and in same day funds equal to the amount of such
payment; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless Company


 


50

















 


shall
have notified Administrative Agent and such Issuing Lender prior to 12:00 noon
(Minneapolis time) on the date such drawing is honored that Company intends to
reimburse such Issuing Lender for the amount of such payment with funds other
than the proceeds of Revolving Loans, Company shall be deemed to have given a
timely Notice of Revolving Borrowing to Administrative Agent requesting Lenders
to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in
an amount in Dollars equal to the amount of such payment and (ii) subject
to satisfaction or waiver of the conditions specified in subsection 4.2,
Lenders shall, on the Reimbursement Date, make Revolving Loans that are Base
Rate Loans in the amount of such payment, the proceeds of which shall be
applied directly by Administrative Agent to reimburse such Issuing Lender for
the amount of such payment; and provided, further that if for any reason
proceeds of Revolving Loans are not received by such Issuing Lender on the
Reimbursement Date in an amount equal to the amount of such payment, Company
shall reimburse such Issuing Lender, on demand, in an amount in same day funds
equal to the excess of the amount of such payment over the aggregate amount of
such Revolving Loans, if any, which are so received.  Nothing in this subsection
3.3B shall be deemed to relieve any Lender from its obligation to make
Revolving Loans on the terms and conditions set forth in this Agreement, and
Company shall retain any and all rights it may have against any Lender
resulting from the failure of such Lender to make such Revolving Loans under
this subsection 3.3B.  During the continuance of an Event of Default, if
Administrative Agent receives any Cash collateral in respect of any outstanding
Letter of Credit, such Cash collateral shall be held by Administrative Agent
for the ratable benefit of the Lenders.


 


C.           
Payment by Lenders of Unreimbursed Amounts Paid Under Letters of Credit.


 


(i)           
Payment by Lenders.  In the event that Company shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount  equal to the amount of any payment by such Issuing Lender under a
Letter of Credit issued by it, such Issuing Lender shall promptly notify
Administrative Agent, who shall promptly notify each Lender of the unreimbursed
amount of such honored drawing and of such Lender’s respective participation
therein based on such Lender’s Pro Rata Share (after giving effect to any
Revolving Loans made by such Lender under subsection 3.3B in respect of such drawing). 
Each Lender (other than such Issuing Lender) shall make available to
Administrative Agent an amount equal to its respective participation, in
Dollars, in same day funds, at the Funding and Payment Office, not later than
1:00 P.M. (Minneapolis time) on the first Business Day after the date
notified by Administrative Agent, and Administrative Agent shall make available
to such Issuing Lender in Dollars, in same day funds, at the office of such
Issuing Lender on such Business Day the aggregate amount of the payments so
received by Administrative Agent.  In the event that any Lender fails to
make available to Administrative Agent on such Business Day the amount of such
Lender’s participation in such Letter of Credit as provided in this subsection
3.3C, such Issuing Lender shall be entitled to recover such amount on demand
from such Lender together with interest thereon at the rate customarily used by
such Issuing Lender for the correction of errors among banks for three Business
Days and thereafter at the Base Rate.  Nothing in this subsection 3.3C
shall be deemed to prejudice the right of Administrative Agent to recover, for
the benefit of Lenders, from any Issuing Lender any amounts made available to
such Issuing Lender pursuant to this subsection


 


51

















 


3.3C
in the event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of Credit by
such Issuing Lender in respect of which payments were made by Lenders
constituted gross negligence or willful misconduct on the part of such Issuing
Lender.


 


(ii)          
Distribution to Lenders of Reimbursements Received From Company. 
In the event any Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any payment by
such Issuing Lender under a Letter of Credit issued by it, and Administrative
Agent or such Issuing Lender thereafter receives any payments from Company in
reimbursement of such payment under the Letter of Credit, to the extent any
such payment is received by such Issuing Lender, it shall distribute such
payment to Administrative Agent, and Administrative Agent shall distribute to
each other Lender that has paid all amounts payable by it under subsection
3.3C(i) with respect to such payment such Lender’s Pro Rata Share of all
payments subsequently received by Administrative Agent or by such Issuing
Lender from Company.  Any such distribution shall be made to a Lender at
the account specified in subsection 2.4B(iii).


 


D.           
Interest on Amounts Paid Under Letters of Credit.


 


(i)           
Payment of Interest by Company.  Company agrees to pay to
Administrative Agent, with respect to payments under any Letters of Credit
issued by any Issuing Lender, interest on the amount paid by such Issuing
Lender in respect of each such payment from the date a drawing is honored to
but excluding the date such amount is reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B) at a rate equal to (a) for the period from the date such drawing is
honored to but excluding the Reimbursement Date, the rate then in effect under
this Agreement with respect to Base Rate Loans and (b) thereafter, a rate
which is 2% per annum in excess of the rate of interest otherwise payable under
this Agreement with respect to Base Rate Loans.  Interest payable pursuant
to this subsection 3.3D(i) shall be computed on the basis of a 365-day
year (or 366-day year in case of a leap year) for the actual number of days
elapsed in the period during which it accrues and shall be payable on demand
or, if no demand is made, on the date on which the related drawing under a
Letter of Credit is reimbursed in full.


 


(ii)          
Distribution of Interest Payments by Administrative Agent. 
Promptly upon receipt by Administrative Agent of any payment of interest
pursuant to subsection 3.3D(i) with respect to a payment under a Letter of
Credit, (a) Administrative Agent shall distribute to (x) each Lender
(including the Issuing Lender) out of the interest received by Administrative
Agent in respect of the period from the date such drawing is honored to but
excluding the date on which the applicable Issuing Lender is reimbursed for the
amount of such payment (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B), the amount that such Lender would
have been entitled to receive in respect of the letter of credit fee that would
have been payable in respect of such Letter of Credit for such period pursuant
to subsection 3.2 if no drawing had been honored under such Letter of Credit,
and (y) such Issuing Lender the amount, if any, remaining after payment of
the amounts applied pursuant to clause (x),


 


52

















 


and
(b) in the event such Issuing Lender shall have been reimbursed by other
Lenders pursuant to subsection 3.3C(i) for all or any portion of such
payment, Administrative Agent shall distribute to each Lender (including such
Issuing Lender) that has paid all amounts payable by it under subsection
3.3C(i) with respect to such payment such Lender’s Pro Rata Share of any
interest received by Administrative Agent in respect of that portion of such
payment so made by Lenders for the period from the date on which such Issuing
Lender was so reimbursed to but excluding the date on which such portion of
such payment is reimbursed by Company.  Any such distribution shall be
made to a Lender at the account specified in subsection 2.4B(iii).


 


3.4         
Obligations Absolute.


 


The obligation of Company to reimburse each Issuing
Lender for payments under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances including any of the following circumstances:


 


(i)           
any lack of validity or enforceability of any Letter of Credit;


 


(ii)          
the existence of any claim, set-off, defense or other right which Company or
any Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting),
any Issuing Lender or other Lender or any other Person or, in the case of a
Lender, against Company, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Company or one of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured);


 


(iii)         
any draft or other document presented under any 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;


 


(iv)         
payment by the applicable Issuing Lender under any Letter of Credit against
presentation of a draft or other document which does not substantially comply
with the terms of such Letter of Credit;


 


(v)          
any adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its Subsidiaries;


 


(vi)         
any breach of this Agreement or any other Loan Document by any party thereto;


 


(vii)        
any other circumstance or happening whatsoever, whether or not similar to any
of the foregoing; or


 


(viii)       
the fact that an Event of Default or a Potential Event of Default shall have
occurred and be continuing;


 


53

















 


provided, in each case, that payment by the
applicable Issuing Lender under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of such Issuing Lender under
the circumstances in question (as determined by a final judgment of a court of
competent jurisdiction).


 


3.5         
Nature of Issuing Lenders’ Duties.


 


As between Company and any Issuing Lender, Company
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit issued by such Issuing Lender by, the respective beneficiaries of such
Letters of Credit.  In furtherance and not in limitation of the foregoing,
such Issuing Lender shall not be responsible for:  (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such 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; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under any such Letter of Credit or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit
of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of such Issuing Lender,
including any act or omission by a Government Authority, and none of the above
shall affect or impair, or prevent the vesting of, any of such Issuing Lender’s
rights or powers hereunder.


 


In furtherance and extension and not in limitation of
the specific provisions set forth in the first paragraph of this subsection
3.5, any action taken or omitted by any Issuing Lender under or in connection
with the Letters of Credit issued by it or any documents and certificates
delivered thereunder, if taken or omitted in good faith, shall not put such
Issuing Lender under any resulting liability to Company.


 


Notwithstanding anything to the contrary contained in
this subsection 3.5, Company shall retain any and all rights it may have
against any Issuing Lender for any liability arising solely out of the gross
negligence or willful misconduct of such Issuing Lender, as determined by a
final judgment of a court of competent jurisdiction.


 


3.6         
Applicability of UCP.


 


Unless otherwise expressly agreed by the Issuing Lender and
Company when a Letter of Credit is issued, the rules of the Uniform
Customs and Practice for Documentary Credits (UCP 500) (the “UCP”), as most recently published by
the International Chamber of Commerce at the time of issuance, shall apply to
each Letter of Credit.


 


54

















 


Section 4.             CONDITIONS
TO LOANS AND LETTERS OF CREDIT


 


The obligations of Lenders to make Loans and the
issuance of Letters of Credit hereunder are subject to the satisfaction of the
following conditions.


 


4.1         
Conditions to Closing.


 


This Agreement shall become effective subject to prior
or concurrent satisfaction of the following conditions, upon which the Closing
Date shall occur:


 


A.           
Loan Documents.  Company shall deliver to Lenders (or to
Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Company, each,
unless otherwise noted, dated the date hereof:


 


(i)           
Copies of the Organizational Documents of Company, certified by the Secretary
of State of its jurisdiction of organization or, if such document is of a type
that may not be so certified, certified by the secretary or similar officer of
Company, together with a good standing certificate from the Secretary of State
of its jurisdiction of organization dated a recent date prior to the date hereof;


 


(ii)          
Resolutions of the Governing Body of Company approving and authorizing the
execution, delivery and performance of the Loan Documents, certified as of the
date hereof by the secretary or similar officer of Company as being in full
force and effect without modification or amendment;


 


(iii)         
Signature and incumbency certificates of the officers of Company executing the
Loan Documents;


 


(iv)         
Executed originals of the Loan Documents; and


 


(v)          
Such other opinions, documents or materials as Administrative Agent or any
Lender may reasonably request.


 


B.           
Fees.  Company shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent, the Syndication Agent
and Lenders, the fees payable on the date hereof referred to in subsection 2.3.


 


C.           
Representations and Warranties.  Company shall have delivered
to Administrative Agent an Officer’s Certificate, in form and substance
satisfactory to Administrative Agent, to the effect that the representations
and warranties in Section 5 are true and correct in all material respects
on and as of the date hereof to the same extent as though made on and as of
that date (or, to the extent such representations and warranties specifically relate
to an earlier date, that such representations and warranties were true and
correct in all material respects on and as of such earlier date); provided
that, if a representation and warranty is qualified as to materiality, the
applicable materiality qualifier set forth above shall be disregarded with
respect to such representation and warranty for purposes of this condition.


 


55














 


D.           
Financial Statements.  Lenders shall have received from Company audited
financial statements for the year ended December 31, 2004 and unaudited
financial statements for the fiscal quarter ended June 30, 2005 of Company
and its Subsidiaries in form and substance reasonably satisfactory to
Administrative Agent.


 


E.            
Opinions of Counsel.  Lenders shall have received executed copies of the
opinion of Cleary Gottlieb Steen & Hamilton LLP, counsel for Company,
and John Junek, Esq., Executive Vice President and General Counsel of
Company, each dated as of the date hereof and in form and substance reasonably
satisfactory to Administrative Agent.


 


F.            
Solvency Assurances.  Administrative Agent and Lenders shall have received
an Officer’s Certificate of Company dated as of the date hereof as to solvency
matters in form and substance reasonably satisfactory to Administrative Agent.


 


G.           
Debt Ratings.  Company shall have furnished to Administrative
Agent a letter or a public statement from either S&P or Moody’s stating
that after the Spin-Off Transaction and subject to the conditions in such
letter(s) (which conditions shall be satisfactory to Administrative
Agent), Company shall have a Debt Rating of not less than A- or A3, respectively,
and neither S&P’s nor Moody’s Debt Rating shall be less than BBB+ or Baa1,
respectively.


 


H.           
Necessary Governmental Authorizations and Consents; Expiration of Waiting
Periods, Etc.  Company shall have obtained all Governmental Authorizations
and all consents of other Persons, in each case that are necessary or advisable
in connection with the transactions contemplated by the Loan Documents and all
Governmental Authorizations and consents necessary for the continued operation
of the business conducted by Company and its Subsidiaries in substantially the
same manner as conducted prior to the date hereof.  Each such Governmental
Authorization and consent shall be in full force and effect, except in a case
where the failure to obtain or maintain a Governmental Authorization or
consent, either individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.  All applicable waiting
periods shall have expired without any action being taken or threatened by any
competent authority that would restrain, prevent or otherwise impose adverse
conditions on the transactions contemplated by the Loan Documents or the
financing thereof.  No action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to any of the foregoing
shall be pending.


 


I.             
Completion of Proceedings.  All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its
counsel shall be satisfactory in form and substance to Administrative Agent and
such counsel, and Administrative Agent and such counsel shall have received all
such counterpart originals or certified copies of such documents as
Administrative Agent may reasonably request.


 


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4.2         
Conditions to Effective Date; All Loans.


 


The obligations of Lenders to make any Revolving Loans
and Swing Line Loans on any Funding Date are, in addition to the conditions
precedent specified in subsection 4.1, subject to prior or concurrent
satisfaction of the following conditions:


 


A.           
Spin-Off Transaction.


 


(i)           
In the good faith judgment of Administrative Agent, there shall not exist
(A) any order, decree, judgment, ruling or injunction which would
materially and adversely affect any aspect of the Spin-Off Transaction, or any
portion thereof, or the transactions hereunder in the manner contemplated
hereunder, and (b) any pending or, to the knowledge of Company or to
Administrative Agent, threatened action, suit, investigation or other arbitral,
administrative or judicial proceeding, which, if adversely determined, would
reasonably be expected to result in a Material Adverse Effect or materially and
adversely affect any aspect of the Spin-Off Transaction.


 


(ii)          
American Express Company and Company shall have received all approvals,
consents and waivers, and shall have made or given all necessary filings and
notices as shall be required to consummate the Spin-Off Transaction, and each
portion thereof, and the other transactions contemplated hereby without the
occurrence of any material default under, material conflict with or material
violation of (A) any applicable laws or approvals, consents and waivers
from any Government Authority, or (B) any agreement, document or
instrument to which Company or any of its Subsidiaries is a party or by which
any of them or their properties or their businesses are bound, and all
applicable waiting periods shall have expired without any action being taken by
any Government Authority that could restrain, prevent or impose any material
adverse conditions on Company and its Subsidiaries or such other transactions
or that could seek or threaten any of the foregoing, and no law or regulation
shall be applicable which in the reasonable judgment of the Administrative
Agent would have such effect.


 


(iii)         
The Spin-Off Transaction shall have been consummated substantially consistent
with the description set forth in the Form 10 and in accordance with the
terms of the Spin-Off Transaction Documents and the Form 10, which
Spin-Off Transaction Documents shall not have been materially altered, amended
or otherwise changed or supplemented or any condition therein waived in any
manner which would materially adversely affect the Lenders without the prior
written consent of the Lenders, and in compliance with all applicable laws and
regulations or approvals, consents and waivers from any Government Authority.


 


(iv)         
Company shall have delivered to Administrative Agent an Officer’s Certificate
in form and substance reasonably satisfactory to Administrative Agent, (i) certifying
as to and attaching true and correct copies of the Spin-Off Transaction
Documents and (ii) certifying as to compliance, on a pro forma basis, with
the Consolidated Leverage Ratio and Consolidated Net Worth for Company and its
Subsidiaries as of the date of consummation of the Spin-Off Transaction.


 


57

















 


B.           
Notice of Revolving Borrowing.  Administrative Agent shall
have received before that Funding Date, in accordance with the provisions of
subsection 2.1B, a duly executed Notice of Revolving Borrowing, in each case
signed by a duly authorized Officer of Company.


 


C.           
Representations and Warranties True; No Default; Etc.  As of that
Funding Date:


 


(i)           
the representations and warranties contained herein (other than subsection 5.4)
and in the other Loan Documents shall be true and correct in all material
respects on and as of that Funding Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as
of such earlier date; provided, that, if a representation and warranty
is qualified as to materiality, the materiality qualifier set forth above shall
be disregarded with respect to such representation and warranty for purposes of
this condition;


 


(ii)          
no event shall have occurred and be continuing or would result from the
consummation of the borrowing contemplated by such Notice of Revolving
Borrowing that would constitute an Event of Default or a Potential Event of
Default; and


 


(iii)         
no order, judgment or decree of any arbitrator or Government Authority shall
purport to enjoin or restrain such Lender from making the Loans to be made by
it on that Funding Date.


 


4.3         
Conditions to Letters of Credit.


 


The issuance of any Letter of Credit hereunder
(whether or not the applicable Issuing Lender is obligated to issue such Letter
of Credit) is subject to the following conditions precedent:


 


A.           
On
or before the date of issuance of such Letter of Credit, Administrative Agent
shall have received, in accordance with the provisions of subsection 3.1B(i),
an originally executed Request for Issuance (or a facsimile copy thereof) in
each case signed by a duly authorized Officer of Company, together with all
other information specified in subsection 3.1B(i) and such other documents
or information as the applicable Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.


 


B.           
On
the date of issuance of such Letter of Credit, all conditions precedent
described in subsection 4.2C shall be satisfied to the same extent as if the
issuance of such Letter of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Funding Date.


 


58

















 


Section 5.             COMPANY’S
REPRESENTATIONS AND WARRANTIES


 


In order to induce Lenders to enter into this
Agreement and to make the Loans, to induce Issuing Lenders to issue Letters of
Credit and to induce Lenders to purchase participations therein, Company
represents and warrants to each Lender:


 


5.1         Organization,
Powers, Qualification, Good Standing, Business and Subsidiaries.


 


A.           
Organization and Powers.  Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware. Company
has all requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted, to enter into the Loan
Documents to which it is a party and to carry out the transactions contemplated
thereby.


 


B.           
Qualification and Good Standing.  Company is qualified to do
business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing would
not reasonably be expected to result in a Material Adverse Effect.


 


C.           
Conduct of Business.  Company and its Subsidiaries are engaged only in the
businesses permitted to be engaged in pursuant to subsection 7.7.


 


D.           
Subsidiaries.  The Capital Stock of each of the Significant
Subsidiaries of Company is duly authorized, validly issued, fully paid and
nonassessable and none of such Capital Stock constitutes Margin Stock. 
Each of the Subsidiaries of Company is a corporation, partnership, trust or
limited liability company duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of organization set forth
therein, has all requisite organizational power and authority to own and
operate its properties and to carry on its business as now conducted, and is
qualified to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and operations,
in each case except where failure to be so qualified or in good standing or a
lack of such power and authority would not reasonably be expected to result in
a Material Adverse Effect.


 


5.2         
Authorization of Borrowing, etc.


 


A.           
Authorization of Borrowing.  The execution, delivery and
performance of the Loan Documents have been duly authorized by all necessary
organizational action on the part of Company.


 


B.           
No Conflict.  The execution, delivery and performance by Company
of the Loan Documents and the consummation of the transactions contemplated by
the Loan Documents do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to Company or any of
its Subsidiaries, the Organizational Documents of Company or any of its
Subsidiaries or any order, judgment or decree of any court or other Government
Authority binding on Company or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any


 


59

















 


Contractual
Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of its
Subsidiaries, except for such approvals or consents which will be obtained on
or before the date hereof and disclosed in writing to Lenders and except, in
each case, to the extent such violation, conflict, Lien or failure to obtain
such approval or consent would not reasonably be expected to result in a
Material Adverse Effect.


 


C.           
Governmental Consents.  The execution, delivery and performance by
Company of the Loan Documents and the consummation of the transactions
contemplated by the Loan Documents do not and will not require any Governmental
Authorization except to the extent failure to obtain any such Governmental
Authorization would not reasonably be expected to have a Material Adverse
Effect.


 


D.           
Binding Obligation.  Each of the Loan Documents has been duly executed
and delivered by Company and is the legally valid and binding obligation of
Company, enforceable against Company in accordance with its respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or similar laws relating to or limiting creditors’ rights
generally or by equitable principles relating to enforceability.


 


5.3         
Financial Condition.


 


Company has heretofore delivered to Lenders, at
Lenders’ request, the audited consolidated balance sheets, statements of income
and cash flows of Company and its Subsidiaries as at and for the year ended
December 31, 2004, and the unaudited consolidated balance sheets, statements
of income and cash flows of Company and its Subsidiaries as at and for the
fiscal quarter ended June 30, 2005.  All such statements were
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position (on a consolidated basis) of the entities described in
such financial statements as at the respective dates thereof and the results of
operations and cash flows (on a consolidated basis) of the entities described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal
year-end adjustments and the absence of footnote disclosure.


 


5.4         
No Material Adverse Change.


 


Since December 31, 2004, no event or change has
occurred that has resulted in or evidences, either in any case or in the
aggregate, a Material Adverse Effect, except for the occurrence of the Spin-Off
Transaction, including the incurrence of expenses related thereto.


 


5.5         
Title to Properties; Liens.


 


Company and its Significant Subsidiaries have good and
marketable title to all of their respective properties and assets reflected in
the financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, in


 


60

















 


each
case except for assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted under subsection
7.5 and except for defects and irregularities that would not reasonably be
expected to result in a Material Adverse Effect.  Except as permitted by
this Agreement, all such properties and assets are free and clear of Liens.


 


5.6         
Litigation; Adverse Facts.


 


Except as set forth in Schedule 5.6 annexed
hereto, there are no Proceedings (whether or not purportedly on behalf of
Company or any of its Subsidiaries) at law or in equity, or before or by any
court or other Government Authority (including any Environmental Claims) that
are pending or, to the knowledge of Company, threatened against or affecting
Company or any of its Subsidiaries or any property of Company or any of its
Subsidiaries and that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.  Neither Company nor any
of its Subsidiaries (i) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect, or (ii) is subject to or
in default with respect to any final judgments, writs, injunctions, decrees,
rules or regulations of any court or other Government Authority that,
individually or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect.


 


5.7         
Payment of Taxes.


 


Except to the extent permitted by subsection 6.3, all
federal and all other material tax returns and reports of Company and its
Subsidiaries required to be filed by any of them have been timely filed, and
all taxes shown on such tax returns to be due and payable and all material
assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises that are due and payable have been paid when due and payable,
unless such taxes, assessments, fees or charges are being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings and
reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.


 


5.8         
Governmental Regulation.


 


Company is not subject to regulation under the Public
Utility Holding Company Act of 1935 or the Investment Company Act of 1940.


 


5.9         
Securities Activities.


 


No part of the proceeds of the Loans will be used for the
purpose, directly or indirectly, of buying or carrying any Margin Stock.


 


5.10       
Employee Benefit Plans.


 


A.           
Company,
each of its Subsidiaries and each of their respective ERISA Affiliates are in
material compliance with all applicable provisions and requirements of ERISA
and the regulations and published interpretations thereunder with respect to
each Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan.  To the


 


61

















 


knowledge
of Company and each of its Subsidiaries, each Employee Benefit Plan that is
intended to qualify under Section 401(a) of the Internal Revenue Code
is so qualified.


 


B.           
No
ERISA Event has occurred or is reasonably expected to occur.


 


5.11       
Environmental Protection.


 


In the ordinary course of its business, the officers
of Company and its Subsidiaries consider the effect of Environmental Laws on
the business of Company and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to Company due
to Environmental Laws.  On the basis of this consideration, Company has
concluded that Environmental Laws would not reasonably be expected to have a
Material Adverse Effect.  Neither Company nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance
with any of the requirements of applicable Environmental Laws or are the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any Hazardous Materials into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.


 


5.12       
Solvency.


 


Company is and, after the consummation of the Spin-Off
Transaction and upon the incurrence of any Obligations by Company on any date
on which this representation is made, will be, Solvent.


 


5.13       
Disclosure.


 


No representation or warranty of Company contained in
the Confidential Information Memorandum or in any Loan Document or in any other
document, certificate or written statement furnished to Lenders by or on behalf
of Company for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any information not furnished
by it) necessary in order to make the statements contained herein or therein
not misleading in light of the circumstances in which the same were made. 
Any projections and pro forma financial information contained in such materials
are based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results.


 


5.14       
Foreign Assets Control Regulations, etc..


 


Neither the making of the Loans to, or issuance of
Letters of Credit on behalf of, Company nor its use of the proceeds thereof
will violate the Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.  Without limiting the foregoing, neither Company
nor any of its Subsidiaries or Affiliates (a) is or will become a Person
whose property or interests in property


 


62

















 


are
blocked pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. 
Reg.  49079 (2001)) or (b) engages or will engage in any dealings or
transactions, or be otherwise associated, with any such Person.  Company
and its Subsidiaries and Affiliates are in compliance, in all material
respects, with the Uniting And Strengthening America By Providing Appropriate
Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act of 2001).


 


Section 6.             AFFIRMATIVE
COVENANTS


 


Company covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until payment in full of
all of the Loans and other Obligations (other than Unasserted Obligations) and
the cancellation or expiration of all Letters of Credit, unless Requisite
Lenders shall otherwise give consent, Company shall perform, and shall cause
each of its Subsidiaries to perform, all covenants in this Section 6.


 


6.1         
Financial Statements and Other Reports.


 


Company will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and administered
in accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP.  Company will deliver, or cause to be
delivered, to Administrative Agent and Lenders:


 


(i)           
Events of Default, etc.:  reasonably promptly upon any officer of
Company obtaining knowledge of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender has
given any notice (other than to Administrative Agent) or taken any other action
with respect to a claimed Event of Default or Potential Event of Default, an
Officer’s Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken by
any such Person and the nature of such claimed Event of Default or Potential
Event of Default, and what action Company has taken, is taking and proposes to
take with respect thereto;


 


(ii)          
Quarterly Financials:  (a) as soon as available and in any
event within 45 days after the end of each of the first three Fiscal Quarters
of each Fiscal Year, the consolidated balance sheets of Company and its Subsidiaries
as at the end of such Fiscal Quarter and the related consolidated statements of
income, stockholders’ equity and cash flows of Company and its Subsidiaries for
such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present, in all material
respects, the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for
the periods indicated, subject to changes resulting from audit and normal
year-end adjustments and the absence of footnote disclosure, and
(b) within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, a narrative report describing the operations of
Company and its Subsidiaries in the


 


63

















 


form
prepared for presentation to senior management for such Fiscal Quarter and for
the period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter; it being understood and agreed that the delivery of
Company’s Form 10-Q promptly following the filing thereof with the
Securities and Exchange Commission shall satisfy the delivery requirements set
forth in this clause (subject to the time periods set forth in this clause (ii));


 


(iii)         
Year-End Financials:  as soon as available and in any event within
90 days after the end of each Fiscal Year, (a) the consolidated balance
sheets of Company and its Subsidiaries as at the end of such Fiscal Year and
the related consolidated statements of income, stockholders’ equity and cash
flows of Company and its Subsidiaries for such Fiscal Year, setting forth in
each case in comparative form the corresponding figures for the previous Fiscal
Year, all in reasonable detail and certified by the chief financial officer of
Company that they fairly present, in all material respects, the consolidated
financial condition of Company and its Subsidiaries as at the dates indicated
and the consolidated results of their operations and their cash flows for the
periods indicated, (b) a report for Company and its Subsidiaries setting
forth in comparative form the corresponding figures for the previous Fiscal
Year, (c) a narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior management for
such Fiscal Year, (d) in the case of all such consolidated financial
statements, a report and opinion thereon of Ernst & Young LLP or other
independent certified public accountants of recognized national standing
selected by Company and reasonably satisfactory to Administrative Agent, which
report and opinion shall be prepared in accordance with audit standards of the
Public Company Accounting Oversight Board and applicable Securities Laws
unqualified as to the scope of the audit or the ability of Company and its
Subsidiaries to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material respects, the
consolidated financial position of Company and its Subsidiaries as at the dates
indicated and the consolidated results of their operations and their cash flows
for the periods indicated in conformity with GAAP applied on a basis consistent
with prior years (except as otherwise disclosed in such financial statements)
and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards, and it being understood and agreed that the
delivery of Company’s Form 10-K promptly after the filing thereof with the
Securities and Exchange Commission shall satisfy the requirements set forth in
this clause (subject to the time periods set forth in this clause (iii));


 


(iv)         
Compliance Certificates:  together with each delivery of financial
statements pursuant to subdivisions (ii) and (iii) above, (a) an
Officer’s Certificate of Company stating that the signers have reviewed the
terms of this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and condition of
Company and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such Officer’s Certificate,
of any condition or event that constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof


 


64

















 


and
what action Company has taken, is taking and proposes to take with respect
thereto; and (b) a Compliance Certificate demonstrating in reasonable
detail compliance at the end of the applicable accounting periods with the
restrictions contained in subsection 7.4;


 


(v)          
SAP Financial Statements.  (a) as soon as available and in any
event within 60 days after the end of each of the first three Fiscal Quarters
of each Fiscal Year, copies of the unaudited Quarterly Statement of IDS
Property Casualty Insurance Company, IDS Life Insurance Company and each other
Insurance Subsidiary requested in writing by Administrative Agent, certified by
the chief financial officer or the treasurer of such Insurance Subsidiary, all
such statements to be prepared in accordance with SAP consistently applied
throughout the periods reflected therein and (b) as soon as available and
in any event within 100 days after the end of each Fiscal Year, copies of the
audited Annual Statement of IDS Property Casualty Insurance Company, IDS Life
Insurance Company and each other Insurance Subsidiary requested in writing by
Administrative Agent certified by Ernst & Young LLP or other
independent certified public accountants of recognized national standing
selected by Company and reasonably satisfactory to Administrative Agent, all
such statements to be prepared in accordance with SAP consistently applied
throughout the periods reflected therein.


 


(vi)         
SEC Filings and Press Releases:  promptly upon their becoming
available, copies of (a) regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses, if
any, filed by Company or any of its Subsidiaries with any securities exchange
or with the Securities and Exchange Commission or any governmental or private
regulatory authority, and (b) all press releases and other statements made
available generally by Company or any of its Subsidiaries to the public
concerning material developments in the business of Company and its
Subsidiaries, taken as a whole;


 


(vii)        
ERISA Events:  promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Company, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto;


 


(viii)       
ERISA Notices:  with reasonable promptness, copies of all notices
received by Company or any of its Subsidiaries from a Multiemployer Plan
sponsor concerning an ERISA Event;


 


(ix)          
Ratings:  reasonably promptly after becoming aware of any change in
Company’s Debt Rating, a statement describing such change, whether such change
was made by S&P, Moody’s or both and the effective date of such change; and


 


(x)           
Other Information:  with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by Administrative Agent.


 


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6.2         
Existence, etc.


 


Except as permitted under subsection 7.5, Company
will, and will cause each of its Subsidiaries to, at all times preserve and
keep in full force and effect its existence and all rights and franchises
material to its business; provided, however that neither Company
nor any of its Subsidiaries shall be required to preserve any such right or
franchise if the Governing Body of Company or such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of Company or such Subsidiary, as the case may be, and that the loss
thereof would not reasonably be expected to result in a Material Adverse
Effect; provided  further that Company will not be required to
preserve and keep in full force and effect the existence of any Subsidiary, if
the Governing Body of Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Company or such Subsidiary and that the loss thereof would not reasonably be
expected to result in a Material Adverse Effect.


 


6.3         
Payment of Taxes and Claims.


 


Company will, and will cause each of its Significant
Subsidiaries to, pay all material taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its income, businesses or franchises before any material penalty accrues
thereon, and all material claims (including claims for labor, services,
materials and supplies) for sums that have become due and payable and that by
law have or may become a Lien upon any of its properties or assets, prior to
the time when any material penalty or fine shall be incurred with respect
thereto; provided that no such tax, assessment, charge or claim need be
paid if it is being contested in good faith by appropriate proceedings, so long
as (i) such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor and (ii) in
the case of a tax, assessment, charge or claim which has or may become a Lien
against any of the assets of Company or its Significant Subsidiaries, the Lien
is not being enforced by foreclosure or sale of any portion of such assets to
satisfy such charge or claim or is otherwise permitted by this Agreement.


 


6.4         
Maintenance of Properties; Insurance.


 


A.           
Maintenance of Properties.  Company will, and will cause
each of its Significant Subsidiaries to, maintain or cause to be maintained in
good repair, working order and condition, ordinary wear and tear excepted, all
material properties used or useful in the business of Company and its
Significant Subsidiaries (including all material intellectual property).


 


B.           
Insurance.  Company will insure its and its Subsidiaries’ assets
and businesses in such manner and to such extent as is customary for companies
engaged in the same or similar businesses in similar locations.


 


6.5         
Inspection Rights.


 


Company shall, and shall cause each of its Significant Subsidiaries
to, permit any authorized representatives designated by Administrative Agent
(and, during the continuance of an Event of Default, any Lender) to visit and
inspect any of the properties of Company or of any of its Significant
Subsidiaries, to inspect, copy and take extracts from its and their financial
and


 


66

















 


accounting
records, and to discuss its and their affairs, finances and accounts with its
and their officers and independent public accountants (provided that Company
may, if it so chooses, be present at or participate in any such discussion),
all upon reasonable notice and at such reasonable times during normal business
hours and as often as may reasonably be requested or at any time or from time
to time following the occurrence and during the continuation of an Event of
Default.


 


6.6         
Compliance with Laws, etc.


 


Company shall comply, and shall cause each of its
Subsidiaries to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Government Authority (including all Environmental
Laws), noncompliance with which would reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect.


 


Section 7.             
NEGATIVE COVENANTS


 


Company covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until payment in full of
all of the Loans and other Obligations (other than Unasserted Obligations) and
the cancellation or expiration of all Letters of Credit, unless Requisite
Lenders shall otherwise give consent, Company shall perform, and shall cause
each of its Subsidiaries to perform, all covenants in this Section 7.


 


7.1         
Liens and Related Matters.


 


A.           
Prohibition on Liens.  Company shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, create, incur, assume or permit
to exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC or under any similar recording or notice statute, except:


 


(i)           
Permitted Encumbrances;


 


(ii)          
Liens described in Schedule 7.1 annexed hereto;


 


(iii)         
Liens securing obligations in an aggregate amount not to exceed 10% of
Consolidated Net Worth incurred in connection with any transaction (including
an agreement with respect thereto) now existing or hereafter entered into which
is a rate swap transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions)
and any combination of these transactions, parallel loans, back-to-back loans
or other similar arrangements or contracts, in each case entered into in the
ordinary course of business for the purpose of asset and liability management;


 


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(iv)         
Liens on any property or assets existing at the time such property or asset was
acquired (including Liens on the property or assets of any Person that becomes
a Subsidiary of Company that existed at the time such Person became a
Subsidiary by acquisition, merger, consolidation or otherwise), which Liens
were not created in contemplation of such acquisition; provided that
(i) such Liens shall not extend to or cover any property or assets of any
character other than the property being acquired and (ii) such Liens shall
secure only those obligations which such Liens secured on the date of such
acquisition;


 


(v)          
Liens in respect of purchase money and Capital Lease obligations upon or in any
real property or equipment acquired or held by Company or any Subsidiary in the
ordinary course of business to secure the purchase price of such property or
equipment or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such property or equipment; provided that
(i) such Liens shall not extend to or cover any property or assets of any
character other than the property or equipment being financed and (ii) the
aggregate amount of Indebtedness secured by such Liens does not exceed
$100,000,000 at any time outstanding;


 


(vi)         
Liens on any real property securing Indebtedness in respect of which
(i) the recourse of the holder of such Indebtedness (whether direct or
indirect and whether contingent or otherwise) under the instrument creating the
Lien or providing for the Indebtedness secured by the Lien is limited to such
real property directly securing such Indebtedness and (ii) such holder may
not under the instrument creating the Lien or providing for the Indebtedness
secured by the Lien collect by levy of execution or otherwise against assets or
property of such Borrower (other than such real property directly securing such
Indebtedness) if such Borrower fails to pay such Indebtedness when due and such
holder obtains a judgment with respect thereto, except for recourse obligations
that are customary in “non-recourse” real estate transactions;


 


(vii)        
Liens on assets held by entities which are required to be included in Company’s
consolidated financial statements solely as a result of the application of
Financial Accounting Standards Board Interpretation No. 46;


 


(viii)       
other Liens securing liabilities in an aggregate amount not to exceed 5% of
Consolidated Net Worth; and


 


(ix)          
the replacement, extension or renewal of any Lien permitted by clauses (ii),
(iv) and (v) above upon or in the same property subject thereto
arising out of the replacement, extension or renewal of the Indebtedness
secured thereby (without any increase in the amount thereof).


 


B.           
No Further Negative Pledges.  Neither Company nor any of
its Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, other than (i) any agreement evidencing
Indebtedness secured by Liens permitted by this Agreement, as to the assets
securing such Indebtedness, (ii) any agreement evidencing an asset sale,
as to the assets being sold and (iii) the Bridge Loan Agreement and any
indenture or other agreement pursuant to


 


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which
any Indebtedness is issued, the proceeds of which are used to repay
Indebtedness incurred under the Bridge Loan Agreement (and any indenture or
other agreement entered into in connection with a refinancing or replacement
thereof).


 


C.           
No Restrictions on Subsidiary Distributions to Company or Other Subsidiaries.  Company will
not, and will not permit any of its Subsidiaries to, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Subsidiary to (i) pay
dividends or make any other distributions on any of such Subsidiary’s Capital
Stock owned by Company or any other Subsidiary of Company, (ii) repay or
prepay any Indebtedness owed by such Subsidiary to Company or any other
Subsidiary of Company, (iii) make loans or advances to Company or any
other Subsidiary of Company, or (iv) transfer any of its property or
assets to Company or any other Subsidiary of Company, except in each case (a) as
provided in this Agreement, (b) as to transfers of assets, as may be
provided in an agreement with respect to a sale of such assets and (c) as
required by law.


 


7.2         
Acquisitions.


 


Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, acquire, by purchase or otherwise, all
or substantially all the business, property or fixed assets of, or Capital
Stock of any Person, or any division or line of business of any Person except
Company and its Subsidiaries may acquire, in a single transaction or series of
related transactions (a) all or substantially all of the assets or a
majority of the outstanding Securities entitled to vote in an election of
members of the Governing Body of a Person or (b) any division, line of
business or other business unit of a Person (such Person or such division, line
of business or other business unit of such Person being referred to herein as
the “Target”), in each case that
is a type of business (or assets used in a type of business) permitted to be
engaged in by Company and its Subsidiaries pursuant to subsection 7.7, so long
as (1) no Event of Default or Potential Event of Default shall then exist
or would exist after giving effect thereto and (2) after giving effect to
such acquisition and any financing thereof on a pro forma basis as if such
acquisition had been completed on the first day of the four Fiscal Quarter
period ending on the last day of the most recent Fiscal Quarter for which
financial statements have been delivered pursuant to subsection
6.1(ii) (such last day, the “test date”), Company and its Subsidiaries
would have been in compliance with each of the financial covenants set forth in
subsection 7.4.


 


7.3         
Restricted Junior Payments.


 


Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment so long as any Event of Default or
Potential Event of Default shall have occurred and be continuing or shall be
caused thereby.


 


7.4         
Financial Covenants.


 


A.           
Maximum Leverage Ratio.  Company shall not permit the Consolidated
Leverage Ratio as of the last day of the most recently ended Fiscal Quarter to
exceed 40%.


 


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B.           
Consolidated Net Worth.  Company shall maintain a Consolidated Net
Worth at all times equal to at least 75% of the greater of (i) pro forma
Consolidated Net Worth as of the Effective Date and (ii) pro forma
Consolidated Net Worth as of June 30, 2005.


 


7.5         
Restriction on Fundamental Changes; Asset Sales.


 


Company shall not, and shall not permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or substantially all of its business, property or assets,
whether now owned or hereafter acquired, except:


 


(i)           
any Subsidiary of Company may be merged with or into Company or any
wholly-owned Subsidiary, or be liquidated, wound up or dissolved, or all or any
part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any wholly-owned Subsidiary; provided that,
in the case of such a merger, Company or such wholly-owned Subsidiary shall be
the continuing or surviving Person; and


 


(ii)          
any Person may be merged with or into Company or any Subsidiary if the
acquisition of the Capital Stock of such Person by Company or such Subsidiary
would have been permitted pursuant to subsection 7.2; provided that
(a) in the case of Company, Company shall be the continuing or surviving
Person, (b) if a Subsidiary is not the surviving or continuing Person, the
surviving Person becomes a Subsidiary and (c) no Potential Event of
Default or Event of Default shall have occurred or be continuing after giving
effect thereto.


 


7.6         
Transactions with Affiliates.


 


Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) of any kind with any Affiliate of Company,
whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to Company or such Subsidiary as
would be obtainable by Company or such Subsidiary at the time in a comparable
arm’s length transaction with a Person other than an Affiliate, provided that
the foregoing restriction will not apply to the Spin-Off Transaction or
transactions between or among the Company and any of its wholly-owned
Subsidiaries or between and among any wholly-owned Subsidiaries.


 


7.7         
Conduct of Business.


 


From and after the Closing Date, Company shall not,
and shall not permit any of its Subsidiaries to, engage in any businesses that
are material to Company and its Subsidiaries, taken as a whole, other than the
businesses engaged in by Company and its Subsidiaries on the Closing Date and
businesses reasonably related thereto.


 


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Section 8.             EVENTS
OF DEFAULT


 


If any of the following conditions or events (“Events of Default”) shall occur:


 


8.1         
Failure to Make Payments When Due.


 


Failure by Company to pay any principal of any Loan
when due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Company to pay
when due any amount payable to an Issuing Lender in reimbursement of any
drawing under a Letter of Credit; or failure by Company to pay any interest on
any Loan or any fee or any other amount due under this Agreement within five
Business Days after the date due; or


 


8.2         
Default in Other Agreements.


 


(i)           
Failure of Company or any of its Subsidiaries to pay when due any principal of
or interest on or any other amount payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in subsection 8.1) or
Contingent Obligations with an aggregate principal amount of $50,000,000  or more, in each case beyond the
end of any grace period provided therefor; or


 


(ii)          
breach or default by Company or any of its Subsidiaries with respect to any
other material term of (a) one or more items of Indebtedness or Contingent
Obligations in the individual or aggregate principal amounts referred to in
clause (i) above or (b) any loan agreement, mortgage, indenture or
other agreement relating to such item(s) of Indebtedness or Contingent
Obligation(s), if the effect of such breach or default is to cause, or to
permit the holder or holders of that Indebtedness or Contingent
Obligation(s) (or a trustee on behalf of such holder or holders) to cause,
that Indebtedness or Contingent Obligation(s) to become or be declared due
and payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be (with all notices provided for
therein having been given and all grace periods provided for therein having
lapsed, such that no further notice or passage of time is required in order for
such holders or such trustee to exercise such right, other than notice of their
or its election to exercise such right); or


 


8.3         
Breach of Certain Covenants.


 


Failure of Company to perform or comply with any term
or condition contained in subsections 2.5, 6.1(i), 6.2 or Section 7 (other
than subsection 7.1B, to the extent such failure to comply therewith relates
solely to an agreement entered into by a Subsidiary of Company which is not a
Significant Subsidiary) of this Agreement; or


 


8.4         
Breach of Warranty.


 


Any representation, warranty or certification made by
Company in any Loan Document or in any certificate at any time given by Company
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or


 


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8.5         
Other Defaults Under Loan Documents.


 


Company shall default in the performance of or
compliance with any term contained in this Agreement or any of the other Loan
Documents, other than any such term referred to or covered in any other
subsection of this Section 8, and such default shall not have been
remedied or waived within 30 days after receipt by Company of notice from
Administrative Agent or any Lender of such default; or


 


8.6         
Involuntary Bankruptcy; Appointment of Receiver, etc.


 


(i)           
A court having jurisdiction in the premises shall enter a decree or order for
relief in respect of Company or any of its Subsidiaries in an involuntary case
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, which decree or order shall remain
unstayed for a period of 60 days; or any other similar relief shall be granted
under any applicable federal or state law and shall remain unstayed for a
period of 60 days; or


 


(ii)          
an involuntary case shall be commenced against Company or any of its
Subsidiaries under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for the appointment of
a receiver, liquidator, sequestrator, trustee, conservator, custodian or other
officer having similar powers over Company or any of its Subsidiaries, or over
all or a substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver, trustee
or other custodian of Company or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries, and any such event described in
this clause (ii) shall continue for 60 days unless dismissed, bonded or
discharged; or


 


8.7         
Voluntary Bankruptcy; Appointment of Receiver, etc.


 


(i)           
Company or any of its Subsidiaries shall have an order for relief entered with
respect to it or commence a voluntary case under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under
any such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; or Company or any of its Subsidiaries shall make any assignment for
the benefit of creditors; or


 


(ii)          
Company or any of its Subsidiaries shall be unable, or shall fail generally, or
shall admit in writing its inability, to pay its debts as such debts become
due; or the Governing Body of Company or any of its Subsidiaries (or any
committee thereof) shall adopt any resolution or otherwise authorize any action
to approve any of the actions referred to in clause (i) above or this
clause (ii); or


 


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8.8         
Judgments and Attachments.


 


Any money judgment, writ or warrant of attachment or
similar process involving in the aggregate at any time an amount in excess of
$50,000,000 to the extent not adequately covered by insurance as to which a
solvent and unaffiliated insurance company has acknowledged coverage, shall be
entered or filed against Company or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days (or in any event later than five days prior to the date
of any proposed sale thereunder); or


 


8.9         
Dissolution.


 


Any order, judgment or decree shall be entered against
Company or any of its Subsidiaries decreeing the dissolution or split up of
Company or that Subsidiary and such order shall remain undischarged or unstayed
for a period in excess of 60 days; or


 


8.10       
Employee Benefit Plans.


 


There shall occur one or more ERISA Events that
individually or in the aggregate result in or would reasonably be expected to
result in liability of Company in excess of $25,000,000; or there shall exist
an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans to which Company or any of its Subsidiaries has contributed (excluding
for purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), which would reasonably be expected to result in a
Material Adverse Effect; or


 


8.11       
Change in Control.


 


A Change in Control shall have occurred after the
Spin-Off Transaction; or


 


8.12       
Licensing.


 


Any License of any Regulated Subsidiary (a) shall
be revoked by the Government Authority which issued such License, or any action
(administrative or judicial) to revoke a License shall have been commenced
against any Regulated Subsidiary and shall not have been dismissed within 180
days after the commencement thereof, (b) shall be suspended by such Government
Authority for a period in excess of thirty (30) days or (c) shall not be
reissued or renewed by such Government Authority upon the expiration thereof
following application for such reissuance or renewal by any Regulated
Subsidiary, in each case to the extent such revocation, action, suspension,
nonreissuance or nonrenewal would reasonably be expected to have a Material
Adverse Effect; or


 


8.13       
Certain Proceedings.


 


Any Regulated Subsidiary shall become subject to any
conservation, rehabilitation or liquidation order, directive or mandate issued
by any Government Authority or any Regulated Subsidiary shall become subject to
any other directive or mandate issued by any


 


73

















 


Government
Authority which would reasonably be expected to have a Material Adverse Effect
and which is not stayed within ten (10) days; or


 


8.14       
Invalidity of Loan Documents; Repudiation of Obligations.


 


At any time after the execution and delivery thereof,
(i) any Loan Document or any provision thereof, for any reason other than
the satisfaction in full of all Obligations, shall cease to be in full force
and effect (other than in accordance with its terms) or shall be declared to be
null and void, or (ii) Company shall contest the validity or
enforceability of any Loan Document or any provision thereof in writing or deny
in writing that it has any further liability, including with respect to future
advances by Lenders, under any Loan Document or any provision thereof:


 


THEN (i) upon the occurrence of any Event of Default
described in subsection 8.6 or 8.7, each of (a) the unpaid principal
amount of and accrued interest on the Loans, (b) an amount equal to the
maximum amount that may at any time be drawn under all Letters of Credit then
outstanding (whether or not any beneficiary under any such Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents or certificates required to draw under such Letter of
Credit), and (c) all other Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by Company,
and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate, and
(ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Company, declare all
or any portion of the amounts described in clauses (a) through
(c) above to be, and the same shall forthwith become, immediately due and
payable, and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate; provided
that the foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase assignments
of any unpaid Swing Line Loans as provided in subsection 2.1A(ii).


 


Notwithstanding anything contained in the preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to clause (ii) of such paragraph Company shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on principal
and, to the extent permitted by law, on overdue interest, at the rates
specified in this Agreement) and all Events of Default and Potential Events of
Default (other than non-payment of the principal of and accrued interest on the
Loans, in each case which is due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to subsection 10.6, then Requisite
Lenders, by written notice to Company, may at their option rescind and annul
such acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon.  The provisions of this paragraph are intended merely
to bind Lenders to a decision which may be made at the election of Requisite
Lenders and are not intended, directly or indirectly, to benefit Company, and
such provisions


 


74

















 


shall
not at any time be construed so as to grant Company the right to require
Lenders to rescind or annul any acceleration hereunder or to preclude
Administrative Agent or Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set
forth in this paragraph are met.


 


Section 9.             ADMINISTRATIVE
AGENT


 


9.1         
Appointment.


 


A.           
Appointment of Administrative Agent.  Wells Fargo is hereby
appointed Administrative Agent hereunder and under the other Loan
Documents.  Each Lender hereby authorizes Administrative Agent to act as
its agent in accordance with the terms of this Agreement and the other Loan
Documents.  Wells Fargo agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as applicable. 
The provisions of this Section 9 are solely for the benefit of Agents and
Lenders and none of Company or any of its Subsidiaries shall have rights as a
third party beneficiary of any of the provisions thereof.  In performing
its functions and duties under this Agreement, Administrative Agent (other than
as provided in subsection 2.1D) shall act solely as an agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for Company or any of its
Subsidiaries.


 


9.2         
Powers and Duties; General Immunity.


 


A.           
Powers; Duties Specified.  Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender’s behalf and to
exercise such powers, rights and remedies hereunder and under the other Loan
Documents as are specifically delegated or granted to Administrative Agent by
the terms hereof and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto.  Administrative Agent shall have only
those duties and responsibilities that are expressly specified in this
Agreement and the other Loan Documents.  Administrative Agent may exercise
such powers, rights and remedies and perform such duties by or through its
agents or employees.  Administrative Agent shall not have, by reason of
this Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender or Company; and nothing in this Agreement or any of the
other Loan Documents, expressed or implied, is intended to or shall be so
construed as to impose upon Administrative Agent any obligations in respect of
this Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.


 


B.           
No Responsibility for Certain Matters.  No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or
any other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by such Agent to Lenders or by or on behalf
of Company to such Agent or any Lender in connection with the Loan Documents
and the transactions contemplated thereby or for the financial condition or
business affairs of Company or any other Person liable for the payment of any
Obligations, nor shall such Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions,
covenants or


 


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agreements
contained in any of the Loan Documents or as to the use of the proceeds of the
Loans or the use of the Letters of Credit or as to the existence or possible
existence of any Event of Default or Potential Event of Default.  Anything
contained in this Agreement to the contrary notwithstanding, Administrative Agent
shall not have any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts
thereof.


 


C.           
Exculpatory Provisions.  No Agent or any of its officers, directors,
employees or agents shall be liable to Lenders for any action taken or omitted
by such Agent under or in connection with any of the Loan Documents except to
the extent caused by such Agent’s gross negligence or willful misconduct. 
An Agent shall be entitled to refrain from any act or the taking of any action
(including the failure to take an action) in connection with this Agreement or
any of the other Loan Documents or from the exercise of any power, discretion
or authority vested in it hereunder or thereunder unless and until such Agent
shall have received instructions in respect thereof from Requisite Lenders (or
such other Lenders as may be required to give such instructions under
subsection 10.6) and, upon receipt of such instructions from Requisite Lenders
(or such other Lenders, as the case may be), such Agent shall be entitled to
act or (where so instructed) refrain from acting, or to exercise such power,
discretion or authority, in accordance with such instructions; provided
that no Agent shall be required to take any action that, in its opinion or the
opinion of its counsel, may expose such Agent to liability or that is contrary
to any Loan Document or applicable law.  Without prejudice to the
generality of the foregoing, (i) each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any communication (including any
electronic message, Internet or intranet website posting or other
distribution), instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender
shall have any right of action whatsoever against an Agent as a result of such
Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).


 


D.           
Agents Entitled to Act as Lender.  The agency hereby created
shall in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, an Agent in its individual capacity as a Lender
hereunder.  With respect to its participation in the Loans and the Letters
of Credit, an Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term “Lender” or
“Lenders” or any similar term shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity.  An Agent and
its Affiliates may accept deposits from, lend money to, acquire equity
interests in and generally engage in any kind of commercial banking, investment
banking, trust, financial advisory or other business with Company or any of its
Affiliates as if it were not performing the duties specified herein, and may
accept fees and other consideration from Company for services in connection
with this Agreement and otherwise without having to account for the same to
Lenders.


 


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9.3         
Independent Investigation by Lenders; No Responsibility For Appraisal of Creditworthiness.


 


Each Lender agrees that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of
Lenders or to provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the making of the
Loans or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.


 


9.4         
Right to Indemnity.


 


Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify each Agent and its officers, directors,
employees, agents, attorneys, professional advisors and Affiliates to the
extent that any such Person shall not have been reimbursed by Company, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including reasonable counsel fees
and disbursements and fees and disbursements of any financial advisor engaged
by Agents) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against an Agent or such other Person in
exercising the powers, rights and remedies of an Agent or performing duties of
an Agent hereunder or under the other Loan Documents or otherwise in its
capacity as Agent in any way relating to or arising out of this Agreement or
the other Loan Documents; provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of an Agent resulting solely
from such Agent’s gross negligence or willful misconduct as determined by a
final judgment of a court of competent jurisdiction.  If any indemnity
furnished to an Agent or any other such Person for any purpose shall, in the
opinion of such Agent, be insufficient or become impaired, such Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.


 


9.5         
Resignation of Agents; Successor Administrative Agent and Swing Line Lender.


 


A.           
Resignation; Successor Administrative Agent.  Any Agent may resign at any
time by giving 30 days’ prior written notice thereof to Lenders and
Company.  Upon any such notice of resignation by Administrative Agent,
Requisite Lenders shall have the right, upon five Business Days’ notice to
Company, to appoint a successor Administrative Agent.  If no such
successor shall have been so appointed by Requisite Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, the retiring Administrative Agent may,
on behalf of Lenders, appoint a successor Administrative Agent.  If Administrative
Agent shall notify Lenders and Company that no Person has accepted such
appointment as successor Administrative Agent, such resignation shall
nonetheless become effective in accordance with Administrative Agent’s notice
and (i) the retiring Administrative Agent shall be discharged from its
duties and obligations under the Loan


 


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Documents,
and (ii) all payments, communications and determinations provided to be
made by, to or through Administrative Agent shall instead be made by, to or
through each Lender directly, until such time as Requisite Lenders appoint a
successor Administrative Agent in accordance with this subsection 9.5A. 
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
(if not already discharged as set forth above).  After any retiring Agent’s
resignation hereunder, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement.


 


B.           
Successor Swing Line Lender.  Any resignation of Administrative
Agent pursuant to subsection 9.5A shall also constitute the resignation of
Wells Fargo or its successor as Swing Line Lender, and any successor
Administrative Agent appointed pursuant to subsection 9.5A shall, upon its
acceptance of such appointment, become the successor Swing Line Lender for all
purposes hereunder.  In such event (i) Company shall prepay any
outstanding Swing Line Loans made by the retiring Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring
Administrative Agent and Swing Line Lender shall surrender any Swing Line Note
held by it to Company for cancellation, and (iii) if so requested by the
successor Administrative Agent and Swing Line Lender in accordance with
subsection 2.1E, Company shall issue a Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of Exhibit V
annexed hereto, in the amount of the Swing Line Loan Commitment then in effect
and with other appropriate insertions.


 


9.6         
Duties of Other Agents.


 


To the extent that any Lender is identified in this
Agreement as a co-agent, documentation agent or syndication agent, such Lender
shall not have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such. 
Without limiting the foregoing, none of such Lenders shall have or be deemed to
have a fiduciary relationship with any Lender.


 


9.7         
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 proceeding relative to Company or any of the
Subsidiaries of Company, Administrative Agent (irrespective of whether the
principal of any Loan shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether Administrative Agent shall
have made any demand on Company) shall be entitled and empowered, by
intervention in such proceeding or otherwise


 


(i)           
to file and prove a claim for the whole amount of principal and interest owing
and unpaid in respect of the Loans and any other Obligations that are owing and
unpaid and to file such other papers or documents as may be necessary or
advisable in order to have the claims of Lenders and Agents (including any
claim for the reasonable compensation, expenses, disbursements and advances of
Lenders and Agents and their


 


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agents
and counsel and all other amounts due Lenders and Agents under subsections 2.3
and 10.2) allowed in such judicial proceeding, and


 


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


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agents and their agents
and counsel, and any other amounts due Agents under subsections 2.3 and 10.2.


 


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


 


Section 10.             MISCELLANEOUS


 


10.1       
Successors and Assigns; Assignments and Participations in Loans and Letters
of Credit.


 


A.           
General.  This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders (it
being understood that Lenders’ rights of assignment are subject to the further
provisions of this subsection 10.1).  Neither Company’s rights nor
obligations hereunder nor any interest therein may be assigned or delegated by
Company without the prior written consent of all Lenders (and any attempted
assignment or transfer by Company without such consent shall be null and
void).  No sale, assignment or transfer or participation of any
obligations of a Lender in respect of a Letter of Credit or any participation
therein may be made separately from a sale, assignment, transfer or
participation of a corresponding interest in the Revolving Loan Commitment and
the Revolving Loans of the Lender effecting such sale, assignment, transfer or
participation.  Anything contained herein to the contrary notwithstanding,
except as provided in subsection 2.1A(ii) and subsection 10.5, the Swing
Line Loan Commitment and the Swing Line Loans of Swing Line Lender may not be
sold, assigned or transferred as described below to any Person other than a
successor Administrative Agent and Swing Line Lender to the extent contemplated
by subsection 9.5.  Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Affiliates of each of Administrative Agent and Lenders
and Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


B.           
Assignments.


 


(i)           
Amounts and Terms of Assignments.  Any Lender may assign to one or
more Eligible Assignees all or any portion of its rights and obligations under
this


 


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Agreement;
provided that (a), except in the case of an assignment of the entire
remaining amount of the assigning Lender’s rights and obligations under this
Agreement the aggregate amount of the Revolving Loan Exposure of the assigning
Lender and the assignee subject to each such assignment shall not be less than
$5,000,000, unless Administrative Agent otherwise consents (such consent not to
be unreasonably withheld or delayed), provided that simultaneous assignments to
or by two or more related Funds shall be treated as one assignment for purposes
of this clause (a), (b) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loan or the Commitment
assigned; and any assignment of all or any portion of a Revolving Loan
Commitment, Revolving Loan or Letter of Credit participation shall be made only
as an assignment of the same proportionate part of the assigning Lender’s Revolving
Loan Commitment, Revolving Loans and Letter of Credit participations,
(c) the parties to each assignment shall execute and deliver to
Administrative Agent an Assignment Agreement, together with a processing and
recordation fee of $3,500, and the Eligible Assignee, if it shall not already
be a Lender, shall deliver to Administrative Agent information reasonably
requested by Administrative Agent, including forms, certificates or other
information in compliance with subsection 2.7B(iv) and (d), except in the
case of an assignment to another Lender, an Affiliate of a Lender (provided
that such Affiliate has a long-term non-credit enhanced unsecured debt rating
of at least A- (in the case of S&P) or A3 (in the case of Moody’s)) or an
Approved Fund of a Lender, Administrative Agent and, if no Event of Default has
occurred and is continuing, Company, shall have consented thereto (which
consent shall not be unreasonably withheld or delayed).


 


Upon such execution, delivery and consent, from and
after the effective date specified in such Assignment Agreement, (y) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender hereunder and
(z) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive the termination
of this Agreement under subsection 10.9B) and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering all
or the remaining portion of an assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto; provided that,
anything contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is an Issuing Lender such Lender shall continue
to have all rights and obligations of an Issuing Lender until the cancellation
or expiration of any Letters of Credit issued by it and the reimbursement of
any amounts drawn thereunder).  The assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall, if so requested by the assignee and/or the assigning
Lender in accordance with subsection 2.1E, be issued to the assignee and/or to
the assigning Lender, substantially in the form of Exhibit IV or Exhibit V
annexed hereto, as the case may be, with appropriate insertions, to reflect the
amounts of the new Commitments and/or outstanding Revolving Loans, as the case
may be, of the assignee and/or the assigning Lender.  Other than as
provided in subsection 2.1A(ii) and subsection 10.5, any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection


 


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10.1B
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection
10.1C.


 


(ii)          
Acceptance by Administrative Agent; Recordation in Register.  Upon
its receipt of an Assignment Agreement executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with the
processing and recordation fee referred to in subsection 10.1B(i) and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iv), Administrative Agent
shall, if Administrative Agent and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required pursuant
to subsection 10.1B(i)), (a) accept such Assignment Agreement by executing
a counterpart thereof as provided therein (which acceptance shall evidence any
required consent of Administrative Agent to such assignment), (b) record
the information contained therein in the Register, and (c) give prompt
notice thereof to Company.  Administrative Agent shall maintain a copy of
each Assignment Agreement delivered to and accepted by it as provided in this
subsection 10.1B(ii).


 


C.           
Participations.  Any Lender may, without the consent of, or notice
to, Company or Administrative Agent, sell participations to one or more Persons
(other than a natural Person or Company or any of its Affiliates) in all or a
portion of such Lender’s rights and/or obligations under this Agreement; provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) Company,
Administrative Agent and Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.  Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver directly affecting
(i) subsection 2.4A(iii) or the extension of the scheduled final maturity
date of any Loan allocated to such participation or (ii) a reduction of
the principal amount of or the rate of interest payable on any Loan allocated
to such participation.  Subject to the further provisions of this
subsection 10.1C, Company agrees that each Participant shall be entitled to the
benefits of subsections 2.6D and 2.7 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection 10.1B. 
To the extent permitted by law, each Participant also shall be entitled to the
benefits of subsection 10.4 as though it were a Lender, provided such
Participant agrees to be subject to subsection 10.5 as though it were a
Lender.  A Participant shall not be entitled to receive any greater
payment under subsections 2.6D and 2.7A 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 Company’s prior written consent.  No Participant shall be entitled to
the benefits of subsection 2.7 unless Company is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of
Company, to comply with subsection 2.7B(iv) as though it were a Lender.


 


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D.           
Pledges and Assignments.  Any Lender may, without the consent of
Administrative Agent or Company, at any time pledge or assign a security
interest in all or any portion of its Loans, and the other Obligations owed to
such Lender, to secure obligations of such Lender, including without limitation
(A) any pledge or assignment to secure obligations to any Federal Reserve
Bank and (B) in the case of any Lender that is a Fund, any pledge or
assignment to any holders of obligations owed, or securities issued, by such
Lender including to any trustee for, or any other representative of, such
holders; provided that (i) no Lender shall be relieved of any of
its obligations hereunder as a result of any such assignment or pledge and
(ii) in no event shall any assignee or pledgee be considered to be a
“Lender” or be entitled to require the assigning Lender to take or omit to take
any action hereunder.


 


E.            
Information.  Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to pledgees under subsection 10.10D, assignees and participants (including
prospective assignees and participants), in each case subject to subsection
10.18.


 


F.            
Agreements of Lenders.  Each Lender listed on the signature
pages hereof hereby agrees, and each Lender that becomes a party hereto
pursuant to an Assignment Agreement shall be deemed to agree, (i) that it
is an Eligible Assignee described in clause (ii) of the definition
thereof; (ii) that it has experience and expertise in the making of or
purchasing loans such as the Loans; and (iii) that it will make or
purchase Loans for its own account in the ordinary course of its business and without
a view to distribution of such Loans within the meaning of the Securities Act
or the Exchange Act or other federal securities laws (it being understood that,
subject to the provisions of this subsection 10.1, the disposition of such
Loans or any interests therein shall at all times remain within its exclusive
control).


 


10.2       
Expenses.


 


Whether or not the transactions contemplated hereby
shall be consummated, Company agrees to pay promptly (i) all reasonable
and documented out-of-pocket costs and expenses incurred by Administrative
Agent and the Syndication Agent, including reasonable and documented fees,
expenses and disbursements of counsel to the Agents, in connection with the
negotiation, preparation, execution and administration of the Loan Documents
and any consents, amendments, waivers or other modifications thereto and any
other documents or matters requested by Company; (ii) all other costs and
expenses incurred by the Administrative Agent and the Syndication Agent in
connection with the syndication of the Commitments; (iii) all reasonable
costs and expenses, including reasonable attorneys’ fees (including allocated
costs of internal counsel) and reasonable fees, costs and expenses of
accountants, advisors and consultants, incurred by Administrative Agent and its
counsel at any time when an Event of Default has occurred and is continuing,
relating to efforts to evaluate or assess Company or any of its Subsidiaries
and its business or financial condition; and (iv) all reasonable costs and
expenses, including reasonable attorneys’ fees (including allocated costs of
internal counsel),  reasonable fees, costs and expenses of accountants,
advisors and consultants and costs of settlement, incurred by Administrative
Agent and Lenders in enforcing any Obligations of or in collecting any payments
due from Company hereunder or under the other Loan Documents (including in
connection with the enforcement of the Loan Documents) or in connection with
any


 


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refinancing
or restructuring of the credit arrangements provided under this Agreement in
the nature of a “work-out” or pursuant to any insolvency or bankruptcy
proceedings.


 


10.3       
Indemnity.


 


In addition to the payment of expenses pursuant to
subsection 10.2, whether or not the transactions contemplated hereby shall be
consummated, Company agrees to defend (subject to Indemnitees’ selection of
counsel), indemnify, pay and hold harmless Administrative Agent and Lenders
(including Issuing Lenders), and the officers, directors, trustees, employees,
agents, advisors and Affiliates of Administrative Agent and Lenders
(collectively called the “Indemnitees”),
from and against any and all Indemnified Liabilities (as hereinafter defined); provided
that Company shall not have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise solely from the gross negligence or willful misconduct of
that Indemnitee as determined by a final judgment of a court of competent
jurisdiction.


 


As used herein, “Indemnified
Liabilities” means, collectively, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of counsel for Indemnitees in connection
with any investigative, administrative or judicial proceeding commenced or
threatened by any Person, whether or not any such Indemnitee shall be
designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner relating to or arising out of this Agreement
or the other Loan Documents or the transactions contemplated hereby or thereby
(including Lenders’ agreement to make the Loans hereunder or the use or
intended use of the proceeds thereof or the issuance of Letters of Credit
hereunder or the use or intended use of any thereof, the failure of an Issuing
Lender to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto Government Authority, or any enforcement of any of the Loan Documents).


 


To the extent that the undertakings to defend,
indemnify, pay and hold harmless set forth in this subsection 10.3 may be
unenforceable in whole or in part because they are violative of any law or
public policy, Company shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.


 


10.4       
Set-Off.


 


In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuation of any Event of Default each of Lenders
and their Affiliates is hereby authorized by Company at any time or from time
to time, without notice to Company or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits


 


83

















 


(general
or special, time or demand, provisional or final, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by that Lender or any Affiliate of that Lender to or for the credit or the
account of Company and each of its Subsidiaries against and on account of the
Obligations of Company or any of its Subsidiaries to that Lender (or any
Affiliate of that Lender) or to any other Lender (or any Affiliate of any other
Lender) under this Agreement, the Letters of Credit and participations therein
and the other Loan Documents, including all claims of any nature or description
arising out of or connected with this Agreement, the Letters of Credit and
participations therein or any other Loan Document, irrespective of whether or
not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.


 


10.5       
Ratable Sharing.


 


Lenders hereby agree among themselves that if any of
them shall, whether by voluntary or mandatory payment (other than a payment or
prepayment of Loans made and applied in accordance with the terms of this
Agreement), by realization upon security, through the exercise of any right of
set-off or banker’s lien, by counterclaim or cross action or by the enforcement
of any right under the Loan Documents or otherwise, or as adequate protection
of a deposit treated as cash collateral under the Bankruptcy Code, receive
payment or reduction of a proportion of the aggregate amount of principal, interest,
amounts payable in respect of Letters of Credit, fees and other amounts then
due and owing to that Lender hereunder or under the other Loan Documents
(collectively, the “Aggregate Amounts Due”
to such Lender) that is greater than the proportion received by any other
Lender in respect of the Aggregate Amounts Due to such other Lender, then the
Lender receiving such proportionately greater payment shall, unless such
proportionately greater payment is required by the terms of this Agreement,
(i) notify Administrative Agent and each other Lender of the receipt of
such payment and (ii) apply a portion of such payment to purchase
assignments (which it shall be deemed to have purchased from each seller of an
assignment simultaneously upon the receipt by such seller of its portion of
such payment) of the Aggregate Amounts Due to the other Lenders so that all
such recoveries of Aggregate Amounts Due shall be shared by all Lenders in
proportion to the Aggregate Amounts Due to them; provided that (A) if all
or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of Company or otherwise, those purchases shall be rescinded and
the purchase prices paid for such assignments shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest
and (B) the foregoing provisions shall not apply to (1) any payment
made by Company pursuant to and in accordance with the express terms of this
Agreement or (2) any payment obtained by a Lender as consideration for the
assignment (other than an assignment pursuant to this subsection 10.5) of or
the sale of a participation in any of its Obligations to any Eligible Assignee
or Participant pursuant to subsection 10.1B.  Company expressly consents
to the foregoing arrangement and agrees that any purchaser of an assignment so
purchased may exercise any and all rights of a Lender as to such assignment as
fully as if that Lender had complied with the provisions of subsection 10.1B
with respect to such assignment.  In order to further evidence such
assignment (and without prejudice to the effectiveness of the assignment
provisions set forth above), each purchasing Lender and each selling Lender agree
to


 


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enter
into an Assignment Agreement at the request of a selling Lender or a purchasing
Lender, as the case may be, in form and substance reasonably satisfactory to
each such Lender.


 


10.6       
Amendments and Waivers.


 


No amendment, modification, termination or waiver of
any provision of this Agreement or of the Notes, and no consent to any
departure by Company therefrom, shall in any event be effective without the
written concurrence of Requisite Lenders; provided that no such amendment,
modification, termination, waiver or consent shall, without the consent of:


 


(i)           
each Lender with Obligations directly affected (whose consent shall be
sufficient for any such amendment, modification, termination or waiver without
the consent of Requisite Lenders) (1) reduce or forgive the principal
amount of any Loan, (2) postpone the scheduled final maturity date of any
Loan (but not the date of any scheduled installment of principal), (3) postpone
the date on which any interest or any fees are payable, (4) decrease the
interest rate borne by any Loan (other than any waiver of any increase in the
interest rate applicable to any of the Loans pursuant to subsection 2.2E) or
the amount of any fees payable hereunder (other than any waiver of any increase
in the fees applicable to Letters of Credit pursuant to subsection 3.2
following an Event of Default), (5) reduce the amount or postpone the due
date of any amount payable in respect of any Letter of Credit reimbursement
obligation, (6) extend the expiration date of any Letter of Credit beyond
the Revolving Loan Commitment Termination Date, (7) except as provided in
subsection 2.11, extend the Revolving Commitment Termination Date,
(8) change in any manner the obligations of Lenders relating to the
purchase of participations in Letters of Credit or (9) change in any
manner the provisions of subsection 2.4B to provide that Lenders will not share
pro rata in reductions of the Revolving Loan Commitment Amount;


 


(ii)          
each Lender, (1) change in any manner the definition of “Pro Rata Share”
or the definition of “Requisite Lenders” (except for any changes resulting
solely from an increase in the aggregate amount of the Commitments approved by
Requisite Lenders), (2) change the provisions of subsection
2.4B(iii) to provide that Lenders will not share pro rata in payments,
(3) change in any manner any provision of this Agreement that, by its
terms, expressly requires the approval or concurrence of all Lenders,
(4) increase the maximum duration of Interest Periods permitted hereunder,
or (5) change in any manner or waive the provisions contained in
subsection 2.4A(iii), subsection 2.4C, subsection 8.1, subsection 10.5 or this
subsection 10.6.


 


In addition, no amendment, modification, termination
or waiver of any provision (i) of any Note shall be effective without the
written concurrence of the Lender which is the holder of that Note,
(ii) of subsection 2.1A(ii) or of any other provision of this Agreement
relating to the Swing Line Loan Commitment or the Swing Line Loans shall be
effective without the written concurrence of Swing Line Lender, (iii) of
Section 3 shall be effective without the written concurrence of
Administrative Agent and, with respect to the purchase of participations in
Letters of Credit, without the written concurrence of each Issuing Lender that
has issued an outstanding Letter of Credit or has not been reimbursed for a
payment under a Letter of Credit, (iv) of Section 9 or of any other
provision of this Agreement which, by its terms, expressly


 


85

















 


requires
the approval or concurrence of Administrative Agent shall be effective without
the written concurrence of Administrative Agent; and (v) that increases
the amount of a Commitment of a Lender shall be effective without the consent
of such Lender.


 


Administrative Agent may, but shall have no obligation
to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that Lender.  Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which it was given.  No notice to or demand on Company in any case shall
entitle Company to any other or further notice or demand in similar or other
circumstances.  Any amendment, modification, termination, waiver or
consent effected in accordance with this subsection 10.6 shall be binding upon
each Lender at the time outstanding, each future Lender and, if signed by
Company, on Company.


 


Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.


 


10.7       
Independence of Covenants.


 


All covenants hereunder shall be given independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or
would otherwise be within the limitations of, another covenant shall not avoid
the occurrence of an Event of Default or Potential Event of Default if such
action is taken or condition exists.


 


10.8       
Notices; Effectiveness of Signatures; Posting on Electronic Delivery Systems.


 


A.           
Notices.  Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, or sent by telefacsimile or United
States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telefacsimile in
complete and legible form, or three Business Days after depositing it in the
United States mail with postage prepaid and properly addressed; provided
that notices to Administrative Agent, Swing Line Lender and any Issuing Lender
shall not be effective until received.  For the purposes hereof, the
address of Company, Administrative Agent, Swing Line Lender and the Issuing
Lender shall be as set forth on Schedule 10.8 and the address of each other
Lender shall be as set forth on its Administrative Questionnaire or (i) as
to Company and Administrative Agent, such other address as shall be designated
by such Person in a written notice delivered to the other parties hereto and
(ii) as to each other party, such other address as shall be designated by
such party in a written notice delivered to Administrative Agent. 
Electronic mail and Internet and intranet websites may be used to distribute
routine communications, such as financial statements and other information as
provided in subsection 6.1.  Administrative Agent or Company may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.


 


86

















 


B.           
Effectiveness of Signatures.  Loan Documents and notices
under the Loan Documents may be transmitted and/or signed by telefacsimile and
by signatures delivered in ‘PDF’ format by electronic mail; provided, however,
that after the Closing Date no signature with respect to any notice, request,
agreement, waiver, amendment or other document that is intended to have a
binding effect may be sent by electronic mail.  The effectiveness of any
such documents and signatures shall, subject to applicable law, have the same
force and effect as an original copy with manual signatures and shall be
binding on Company, Agents and Lenders.  Administrative Agent may also
require that any such documents and signature be confirmed by a manually-signed
copy thereof; provided, however, that the failure to request or
deliver any such manually-signed copy shall not affect the effectiveness of any
facsimile document or signature.


 


C.           
Posting on Electronic Delivery Systems.  Company acknowledges and
agrees that (I) Administrative Agent may make any material delivered by
Company to Administrative Agent, as well as any amendments, waivers, consents,
and other written information, documents, instruments and other materials
relating to Company, any of its Subsidiaries, or any other materials or matters
relating to this Agreement, the Notes or any of the transactions contemplated
hereby (collectively, the “Communications”), available to the Lenders by posting such notices on an
electronic delivery system (which may be provided by Administrative Agent, an
Affiliate of Administrative Agent, or any Person that is not an Affiliate of
Administrative Agent), such as IntraLinks, or a substantially 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
Company or its securities) (each, a “Public Lender”).  Company acknowledges that
(i) the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks
associated with such distribution; provided that Administrative Agent
agrees to use reasonable efforts to require that any Lender with access to the
Platform agrees to keep the Communications confidential on substantially the
same terms set forth in subsection 10.18, (ii) the Platform is provided
“as is” and “as available” and (iii) neither Administrative Agent nor any
of its Affiliates warrants the accuracy, completeness, timeliness, sufficiency,
or sequencing of the Communications posted on the Platform. 
Administrative Agent and its Affiliates expressly disclaim with respect to the
Platform any liability for errors in transmission, incorrect or incomplete
downloading, delays in posting or delivery, or problems accessing the
Communications posted on the Platform and any liability for any losses, costs,
expenses or liabilities that may be suffered or incurred in connection with the
Platform.  No warranty of any kind, express, implied or statutory, including,
without limitation, 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 Administrative Agent or any of its Affiliates in
connection with the Platform.


 


The Company hereby agrees that (w) all Communications
that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Communications “PUBLIC”, Company shall be deemed to have authorized
Administrative Agent, any Issuing Lender and the Lenders to treat such
Communications as not containing any material non-public information with respect
to Company or its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Communications
constitute confidential information pursuant to


 


87














 


subsection
10.18, they shall be treated as set forth in such subsection); (y) all
Communications marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor”; and
(z) Administrative Agent shall be entitled to treat any Communications
that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Investor”.


 


Each Lender agrees that notice to it (as provided in
the next sentence) (a “Notice”)
specifying that any Communication has been posted to the Platform shall for
purposes of this Agreement constitute effective delivery to such Lender of such
information, documents or other materials comprising such Communication. 
Each Lender agrees (i) to notify, on or before the date such Lender
becomes a party to this Agreement (pursuant to an Administrative Questionnaire
or otherwise), Administrative Agent in writing of such Lender’s e-mail address
to which a Notice may be sent (and from time to time thereafter to ensure that
Administrative Agent has on record an effective e-mail address for such Lender)
and (ii) that any Notice may be sent to such e-mail address. 
Notwithstanding the foregoing, Company shall not be responsible for any failure
of the Platform or for the inability of any Lender to access any Communication
made available by Company to Administrative Agent in connection with the
Platform and in no event shall any such failure constitute an Event of Default
hereunder.


 


10.9       
Survival of Representations, Warranties and Agreements.


 


A.           
All
representations, warranties and agreements made herein shall survive the
execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.


 


B.           
Notwithstanding
anything in this Agreement or implied by law to the contrary, the agreements of
Company set forth in subsections 2.6D, 2.7, 10.2, 10.3, 10.4, 10.16 and 10.17
and the agreements of Lenders set forth in subsections 9.2C, 9.4, 10.5, 10.17
and 10.18 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination of this Agreement.


 


10.10     
Failure or Indulgence Not Waiver; Remedies Cumulative.


 


No failure or delay on the part of an Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any
other Loan Document shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other power, right or privilege.  All
rights and remedies existing under this Agreement and the other Loan Documents
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.


 


10.11     
Marshalling; Payments Set Aside.


 


Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Company or any other party or
against or in payment of any or all of the Obligations.  To the extent
that Company makes a payment or payments to Administrative Agent or Lenders (or
to Administrative Agent for the benefit of Lenders), or Agents or Lenders
enforce


 


88

















 


any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.


 


10.12     
Severability.


 


In case any provision in or obligation under this
Agreement or the Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.


 


10.13     
Obligations Several; Independent Nature of Lenders’ Rights; Damage Waiver.


 


The obligations of Lenders hereunder are several and
no Lender shall be responsible for the obligations or Commitments of any other
Lender hereunder.  Nothing contained herein or in any other Loan Document,
and no action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders, or Lenders and Company, as a partnership, an association, a
joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and, subject
to subsection 9.6, each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such
purpose.


 


To the extent permitted by law, Company shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with or as a result
of this Agreement (including, without limitation, subsection 2.1C hereof), any
other Loan Document, any transaction contemplated by the Loan Documents, any
Loan or the use of proceeds thereof.


 


10.14     
Applicable Law.


 


THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ANY SUCH LOAN DOCUMENT),
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.


 


89

















 


10.15     
Construction of Agreement; Nature of Relationship.


 


Company acknowledges that (i) it has been
represented by counsel in the negotiation and documentation of the terms of
this Agreement, (ii) it has had full and fair opportunity to review and
revise the terms of this Agreement, (iii) this Agreement has been drafted
jointly by the parties hereto, and (iv) neither Administrative Agent nor
any Lender or other Agent has any fiduciary relationship with or duty to
Company arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between Administrative Agent, the other
Agents and Lenders, on one hand, and Company, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor.  Accordingly,
each of the parties hereto acknowledges and agrees that the terms of this
Agreement shall not be construed against or in favor of another party.


 


10.16     
Consent to Jurisdiction and Service of Process.


 


ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST COMPANY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY OBLIGATIONS HEREUNDER AND THEREUNDER, MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND
CITY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY,
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY


 


(I)           
ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE
OF SUCH COURTS;


 


(II)          
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;


 


(III)        
AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED
BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER
JURISDICTION; AND


 


(IV)        
AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.16 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.


 


10.17     
Waiver of Jury Trial.


 


EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. 
The scope of this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject matter
of this transaction, including contract claims, tort


 


90

















 


claims,
breach of duty claims and all other common law and statutory claims.  Each
party hereto acknowledges that this waiver is a material inducement to enter
into a business relationship, that each has already relied on this waiver in
entering into this Agreement, and that each will continue to rely on this
waiver in their related future dealings.  Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel.  THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO
THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. 
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.


 


10.18     
Confidentiality.


 


Each Lender shall hold all non-public information
obtained pursuant to the requirements of this Agreement in accordance with such
Lender’s customary procedures for handling confidential information of this
nature, it being understood and agreed by Company that in any event a Lender
may make disclosures (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, and legal counsel and other
advisors who are engaged in evaluating, approving, negotiating, structuring or
administering this Agreement (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 on
substantially the same terms as provided herein), (b) to the extent
requested by any Government Authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
subsection 10.18, to (i) any pledgee under subsection 10.10, any Eligible
Assignee of or participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or
(ii) any direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty’s or prospective counterparty’s
professional advisor) to any credit derivative transaction relating to
obligations of Company, (g) with the consent of Company, (h) to the
extent such information (i) becomes publicly available other than as a
result of a breach of this subsection 10.18 or (ii) becomes available to Administrative
Agent or any Lender on a nonconfidential basis from a source other than Company
or a party not known by Administrative Agent or such Lender to be subject to
similar confidentiality restrictions or (i) to the National Association of
Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s
or its Affiliates’ investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates and that no written or oral
communications from counsel to an Agent and no information that is or is
designated as privileged or as attorney work product may be disclosed to any
Person unless such Person is a Lender or a Participant hereunder; provided
that, unless specifically prohibited by applicable law or court order, each


 


91

















 


Lender
shall notify Company of any request by any Government Authority or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such Government
Authority) for disclosure of any such non-public information prior to
disclosure of such information; and provided, further that in no
event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.  In addition, upon
reasonable advance notice to Company, Administrative Agent and Lenders may
disclose the existence of this Agreement and information about this Agreement
to market data collectors, similar service providers to the lending industry,
and service providers to Administrative Agent and Lenders, and Administrative
Agent or any of its Affiliates may place customary “tombstone” advertisements
relating hereto in publications (including publications circulated in
electronic form) of its choice at its own expense (which shall be subject to
review and comment by the Company prior to publication).


 


10.19     
Counterparts; Effectiveness.


 


This Agreement and any amendments, waivers, consents
or supplements hereto or in connection herewith may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are
physically attached to the same document.  This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.


 


10.20     
USA Patriot Act.


 


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


 


[Remainder of page intentionally left blank]


 


92

















 


IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.


 


	
   

  	
  COMPANY:

  	
   

  	
   

  
	
   

  	
   

  	
  AMERIPRISE
  FINANCIAL, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/Arthur H.
  Berman

  
	
   

  	
   

  	
   

  	
  Title: Senior
  Vice President & Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LENDERS:

  	
   

  	
   

  
	
   

  	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
   

  	
  individually and
  as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/Michael Giese

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/Dan Weiler

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITIBANK,
  N.A.,

  
	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/David A.
  Dodge

  
	
   

  	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE BANK OF NEW
  YORK,

  
	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/Michael
  Pensari

  
	
   

  	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUNTRUST BANK,
  INC.

  
	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/Brian Peters

  
	
   

  	
   

  	
   

  	
  Title: Managing
  Director

  



 


Signature Page to Ameriprise
Credit Agreement


 

















 


	
   

  	
  GREENWICH
  CAPITAL MARKETS, INC.,

  
	
   

  	
  as agent for THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Diane
  Ferguson

  
	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  
	
   

  	
  HSBC BANK USA,
  National Association,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Lawrence Karp

  
	
   

  	
  Title: Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE
  BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Erin O’Rourke

  
	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
  LLOYDS TSB BANK,
  plc.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/James M. Rudd

  
	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Melissa Curry

  
	
   

  	
  Title: Assistant
  Vice President

  
	
   

  	
   

  
	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Christine
  Dean

  
	
   

  	
  Title: Assistant
  Vice President

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK,
  NATIONAL ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/William R.
  Goley

  
	
   

  	
  Title: Director

  



 

















 


	
   

  	
  WILLIAM STREET
  COMMITMENT CORPORATION (recourse only to assets of William Street Commitment
  Corporation),

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  Mark Walton

  
	
   

  	
  Title: Assistant
  Vice President

  



 














 


EXHIBITS


 


	
  I

  	
   

  	
  FORM OF
  NOTICE OF REVOLVING BORROWING

  
	
   

  	
   

  	
   

  
	
  IA

  	
   

  	
  FORM OF
  BID REQUEST

  
	
   

  	
   

  	
   

  
	
  IB

  	
   

  	
  FORM OF
  COMPETITIVE BID

  
	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  FORM OF
  NOTICE OF CONVERSION/CONTINUATION

  
	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  FORM OF
  REQUEST FOR ISSUANCE

  
	
   

  	
   

  	
   

  
	
  IV

  	
   

  	
  FORM OF
  REVOLVING NOTE

  
	
   

  	
   

  	
   

  
	
  V

  	
   

  	
  FORM OF
  SWING LINE NOTE

  
	
   

  	
   

  	
   

  
	
  VI

  	
   

  	
  FORM OF
  COMPLIANCE CERTIFICATE

  
	
   

  	
   

  	
   

  
	
  VII

  	
   

  	
  FORM OF
  ASSIGNMENT AGREEMENT

  



 


 

















 


EXHIBIT I




[FORM OF] NOTICE OF REVOLVING BORROWING


 


Pursuant
to that certain Credit Agreement dated as of September 30, 2005, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the terms defined therein and not otherwise defined herein being used
herein as therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the financial institutions
listed therein as Lenders (“Lenders”), and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Administrative Agent (“Administrative Agent”), this represents
Company’s request to borrow as follows:


 


1.           Date of
borrowing:                                       ,                


 


2.           Amount of
borrowing: $


 


3.           Lender(s):


 


o a.        Lenders, in accordance with
their applicable Pro Rata Shares 


 


o b.        Swing Line Lender


 


4.           Type of Loans:


 


o a.        Revolving Loans


 


o b.        Swing Line Loan


 


5.           Interest rate
option:


 


o a.        Base Rate Loan(s)


 


o b.        Eurodollar Rate Loans with
an initial Interest Period of                      month(s)


 


The
proceeds of such Loans are to be deposited in Company’s account at
Administrative Agent or in such other account as may be designated by Company
from time to time.


 


The
undersigned officer, to the best of his or her knowledge, and Company certify that:


 


(i)            The representations and
warranties contained in the Credit Agreement (other than subsection 5.4) and
the other Loan Documents are true, correct and complete in all material
respects on and as of the date hereof to the same extent as though made on and
as of the date hereof, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties were true, correct and complete in all material respects on and as
of such earlier date; provided, that, if a representation
and


 


I-1

















 


warranty
is qualified as to materiality, with respect to such representation and
warranty the materiality qualifier set forth above shall be disregarded for
purposes of this condition; and


 


(ii)           No event has occurred and is
continuing or would result from the consummation of the borrowing contemplated
hereby that would constitute an Event of Default or a Potential Event of
Default.


 




	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  






 


I-2

















 


EXHIBIT IA




[FORM OF] BID REQUEST


 


Pursuant
to that certain Credit Agreement dated as of September 30, 2005, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
AMERIPRISE FINANCIAL, INC., a Delaware corporation (“Company”), the
financial institutions listed therein as Lenders (“Lenders”), and
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (“Administrative
Agent”), the Lenders are invited to make Bid Loans:


 


1.             Date of
borrowing:                                         ,           


 


2.             Amount of
borrowing: $ 


 


3.             Comprised of
(select one):


 


o a.        Bid Loans based on an
Absolute Rate


 


o b.        Bid Loans based on
Eurodollar Rate


 


	
  Bid Loan

  	
   

  	
  Interest Period

  	
   

  	
  Maximum principal

  	
   

  
	
  No.

  	
   

  	
  requested

  	
   

  	
  amount requested

  	
   

  
	
  1

  	
   

  	
  days/mos

  	
   

  	
  $

  	
   

  	
   

  
	
  2

  	
   

  	
  days/mos

  	
   

  	
  $

  	
   

  	
   

  
	
  3

  	
   

  	
  days/mos

  	
   

  	
  $

  	
   

  	
   

  



 


The
Bid Borrowing requested herein complies with the requirements of the proviso to
the first sentence of subsection 2.1A(iii)(a) of the Credit Agreement.


 


Company
authorizes Administrative Agent to deliver this Bid Request to the Lenders.
Responses by the Lenders must be in substantially the form of Exhibit IB
to the Credit Agreement and must be received by Administrative Agent by the
time specified in subsection 2.1A(iii)(c) of the Credit Agreement for submitting
Competitive Bids.


 




	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  






 


IA-1

















 


EXHIBIT IB


 


[FORM OF] COMPETITIVE BID


 


Reference
is made to that certain Credit Agreement dated as of September 30, 2005,
as amended, restated, supplemented or otherwise modified to the date hereof
(said Credit Agreement, as so amended, restated, supplemented or otherwise
modified, being the “Credit Agreement”, the terms defined therein and not otherwise defined herein being used
herein as therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the financial institutions
listed therein as Lenders (“Lenders”), and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Administrative Agent (“Administrative Agent”).


 


In response to the Bid Request dated                 ,
the undersigned offers to make the following Bid Loan(s):


 


1.           Date of
borrowing:                            
,               


 


2.           Amount of
borrowing: $                          


 


3.           Comprised of:


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Absolute Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Bid

  	
   

  
	
   

  	
   

  	
  Interest Period

  	
   

  	
   

  	
   

  	
  or Eurodollar

  	
   

  
	
  Bid Loan No.

  	
   

  	
  offered

  	
   

  	
  Bid Maximum

  	
   

  	
  Margin Bid*

  	
   

  
	
  1

  	
   

  	
  days/mos

  	
   

  	
  $

  	
   

  	
   

  	
  (-+)

  	
  %

  
	
  2

  	
   

  	
  days/mos

  	
   

  	
  $

  	
   

  	
   

  	
  (-+)

  	
  %

  
	
  3

  	
   

  	
  days/mos

  	
   

  	
  $

  	
   

  	
   

  	
  (-+)

  	
  %

  



 






* Expressed in multiples of 1/100th of a basis point.


 


IB-1

















 


Contact Person:                                                       Telephone:                                   .


 


 


	
   

  	
  [LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


******************************************************************************


THIS SECTION IS TO BE COMPLETED BY COMPANY IF IT WISHES
TO ACCEPT ANY OFFERS CONTAINED IN THIS COMPETITIVE BID:


 


The
offers made above are hereby accepted in the amounts set forth below:


 


	
  Bid Loan No.

  	
   

  	
  Principal Amount Accepted

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  



 


 


	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


IB-2

















 


EXHIBIT II




[FORM OF] NOTICE OF CONVERSION/CONTINUATION


 


Pursuant
to that certain Credit Agreement dated as of September 30, 2005, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the terms defined therein and not otherwise defined herein being used
herein as therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the financial institutions
listed therein as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (“Administrative Agent”), this represents
Company’s request to convert or continue Loans as follows:


 


1.             Date of
conversion/continuation:                              ,
                


 


2.             Amount of Loans being
converted/continued:


$                               


 


3.             Nature of
conversion/continuation:


 


o a.        Conversion of Base Rate
Loans to Eurodollar Rate Loans 


 


o b.        Conversion of Eurodollar
Rate Loans to Base Rate Loans 


 


o c.        Continuation of Eurodollar
Rate Loans as such


 


4.             If Loans are being continued
as or converted to Eurodollar Rate Loans, the duration of the new Interest
Period that commences on the conversion/ continuation date:                        month(s)


 


In
the case of a conversion to or continuation of Eurodollar Rate Loans, the
undersigned officer, to the best of his or her knowledge, and Company certifies
that no Event of Default or Potential Event of Default has occurred and is
continuing under the Credit Agreement.


 




	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  






 


II-1






 










 


EXHIBIT
III


 


[FORM OF]
REQUEST FOR ISSUANCE


 


Pursuant to that certain
Credit Agreement dated as of September 30, 2005, as amended, restated,
supplemented or otherwise modified to the date hereof (said Credit Agreement,
as so amended, restated, supplemented or otherwise modified, being the “Credit Agreement”, the terms defined therein and not otherwise defined herein being
used herein as therein defined), by and among AMERIPRISE FINANCIAL, INC., a
Delaware corporation (“Company”), the financial
institutions listed therein as Lenders, and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent (“Administrative Agent”), this
represents Company’s request for the issuance of a Letter of Credit by
Administrative Agent as follows:


 


	
  1.

  	
  Issuing Lender:        Administrative
  Agent

  
	
   

  	
                                   [                                                                                                                     ]

  
	
   

  	
   

  
	
  2.

  	
  Date of issuance of Letter of Credit:                                                            ,                          

  
	
   

  	
   

  
	
  3.

  	
  Face amount of Letter
  of Credit:  $

  
	
   

  	
   

  
	
  4.

  	
  Expiration date of
  Letter of Credit:                                                            ,                          

  
	
   

  	
   

  
	
  5.

  	
  Name and address of beneficiary:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  6.

  	
  Attached hereto is:

  
	
   

  	
   

  
	
   

  	
  o

  	
  the verbatim text of
  such proposed Letter of Credit

  
	
   

  	
   

  	
   

  
	
   

  	
  o

  	
  a description of the
  proposed terms and conditions of such Letter of Credit, including a precise
  description of any documents to be presented by the beneficiary which, if
  presented by the beneficiary prior to the expiration date of such Letter of
  Credit, would require the Issuing Lender to make payment under such Letter of
  Credit.

  
				



 


The undersigned officer,
to the best of his or her knowledge, and Company certify that:


 


(i)            The representations and warranties
contained in the Credit Agreement (other than subsection 5.4) and the other
Loan Documents are true, correct and complete in all material respects on and
as of the date hereof to the same extent as though made on and as of the date
hereof, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
were true, correct and complete in


 


III-1

















 


all material respects on
and as of such earlier date; provided, that, if a representation and
warranty is qualified as to materiality, with respect to such representation
and warranty the materiality qualifier set forth above shall be disregarded for
purposes of this condition; and


 


(ii)           No event has occurred and is
continuing or would result from the issuance of the Letter of Credit
contemplated hereby that would constitute an Event of Default or a Potential
Event of Default.


 


	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE
  FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


III-2

















 


EXHIBIT
IV


 


[FORM
OF] REVOLVING NOTE


 


AMERIPRISE
FINANCIAL, INC.


 




	
  $                                        (1)

  	
   

  	
  (2)

  
	
   

  	
   

  	
  [Issuance date]    

  






 


FOR VALUE
RECEIVED, AMERIPRISE FINANCIAL, INC., a Delaware corporation (“Company”),
promises to pay to
                                                 
 (3)(“Payee”) or its
registered assigns, the lesser of (x)
                                                (4)
($[                          (1)])
and (y) the unpaid principal amount of all advances made by Payee to
Company as Revolving Loans under the Credit Agreement referred to below. The
principal amount of this Note shall be payable on the dates and in the amounts
specified in the Credit Agreement.


 


Company also promises to
pay interest on the unpaid principal amount hereof, until paid in full, at the
rates and at the times which shall be determined in accordance with the
provisions of that certain Credit Agreement dated as of September 30, 2005
by and among Company, the financial institutions listed therein as Lenders, and
Wells Fargo Bank, National Association, as Administrative Agent (said Credit
Agreement, as it may be amended, restated, supplemented or otherwise modified
from time to time, being the “Credit
Agreement”, the terms
defined therein and not otherwise defined herein being used herein as therein
defined).


 


This Note is one of
Company’s “Revolving Notes” and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the Revolving Loans
evidenced hereby were made and are to be repaid.


 


All payments of principal
and interest in respect of this Note shall be made in lawful money of the
United States of America in same day funds at the Funding and Payment Office or
at such other place as shall be designated in writing for such purpose in
accordance with the terms of the Credit Agreement. Unless and until an
Assignment Agreement effecting the assignment or transfer of this Note shall
have been accepted by Administrative Agent and recorded in the Register as
provided in the Credit Agreement, Company and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of this Note and the
Loans evidenced hereby. Payee hereby agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that the failure to make a notation of any payment
made on this Note shall not limit or otherwise affect the obligations of
Company hereunder with respect to payments of principal of or interest on this
Note.


 






(1)           Insert amount of Lender’s Revolving
Loan Commitment in numbers.


(2)           Insert place of delivery of Note.


(3)           Insert Lender’s name in capital
letters.


(4)           Insert amount of Lender’s Revolving
Loan Commitment in words.


 


IV-1

















 


Whenever
any payment on this Note shall be stated to be due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and such extension of time shall be included in the computation of the payment
of interest on this Note.


 


This
Note is subject to mandatory prepayment as provided in the Credit Agreement and
to prepayment at the option of Company as provided in the Credit Agreement.


 


THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY
AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.


 


Upon
the occurrence of an Event of Default, the unpaid balance of the principal
amount of this Note, together with all accrued and unpaid interest thereon, may
become, or may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.


 


The
terms of this Note are subject to amendment only in the manner provided in the
Credit Agreement.


 


This
Note is subject to restrictions on transfer or assignment as provided in the
Credit Agreement.


 


No
reference herein to the Credit Agreement and no provision of this Note or the
Credit Agreement shall alter or impair the obligations of Company, which are
absolute and unconditional, to pay the principal of and interest on this Note
at the place, at the respective times, and in the currency prescribed herein
and in the Credit Agreement.


 


Company
promises to pay all costs and expenses, including reasonable and documented
attorneys’ fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest,
demand and notice of every kind and, to the full extent permitted by law, the
right to plead any statute of limitations as a defense to any demand hereunder.


 


[Remainder of page intentionally left blank.]


 


IV-2

















 


IN
WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered
by its officer thereunto duly authorized as of the date and at the place first
written above.


 


 


	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


IV-3

















 


TRANSACTIONS

ON

REVOLVING NOTE


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  This Date

  	
   

  	
  Amount of

  Loan Made

  This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


IV-4

















 


EXHIBIT V


 


[FORM OF] SWING LINE NOTE


 


AMERIPRISE FINANCIAL, INC.


 




	
  $                                        (1)

  	
   

  	
  (2)

  
	
   

  	
   

  	
  [Issuance date]    

  






 


FOR VALUE RECEIVED, AMERIPRISE FINANCIAL, INC., a Delaware corporation (“Company”), promises to pay
to                                                                              (“Payee”) or its
registered assigns, the lesser of (x)                                      
(3)
($[                                      (1)]) and
(y) the unpaid principal amount of all advances made by Payee to Company
as Swing Line Loans under the Credit Agreement referred to below. The principal
amount of this Note shall be payable on the dates and in the amounts specified
in the Credit Agreement.


 


Company
also promises to pay interest on the unpaid principal amount hereof, until paid
in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Credit Agreement dated as of
September 30, 2005 by and among Company, the financial institutions listed
therein as Lenders, and Wells Fargo Bank, National Association, as
Administrative Agent (said Credit Agreement, as it may be amended, restated,
supplemented or otherwise modified from time to time, being the “Credit Agreement”, the terms
defined therein and not otherwise defined herein being used herein as therein
defined).


 


This
Note is Company’s “Swing Line Note” and is issued pursuant to and entitled to
the benefits of the Credit Agreement, to which reference is hereby made for a
more complete statement of the terms and conditions under which the Swing Line
Loans evidenced hereby were made and are to be repaid.


 


All
payments of principal and interest in respect of this Note shall be made in
lawful money of the United States of America in same day funds at the Funding
and Payment Office or at such other place as shall be designated in writing for
such purpose in accordance with the terms of the Credit Agreement.


 


Whenever
any payment on this Note shall be stated to be due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and such extension of time shall be included in the computation of the payment
of interest on this Note.


 


This
Note is subject to mandatory prepayment as provided in the Credit Agreement and
to prepayment at the option of Company as provided in the Credit Agreement.


 


THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY
AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE


 






(1)           Insert amount of Swing Line Lender’s
Swing Line Commitment in numbers.


(2)           Insert place of delivery of Note.


(3)           Insert amount of Swing Line Lender’s Swing Line
Commitment in words.


 


V-1

















 


CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.


 


Upon
the occurrence of an Event of Default, the unpaid balance of the principal
amount of this Note, together with all accrued and unpaid interest thereon, may
become, or may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.


 


The
terms of this Note are subject to amendment only in the manner provided in the
Credit Agreement.


 


This
Note is subject to restrictions on transfer or assignment as provided in the
Credit Agreement.


 


No
reference herein to the Credit Agreement and no provision of this Note or the
Credit Agreement shall alter or impair the obligations of Company, which are
absolute and unconditional, to pay the principal of and interest on this Note
at the place, at the respective times, and in the currency prescribed herein
and in the Credit Agreement.


 


Company
promises to pay all costs and expenses, including reasonable and documented
attorneys’ fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest,
demand and notice of every kind and, to the full extent permitted by law, the
right to plead any statute of limitations as a defense to any demand hereunder.


 


[Remainder of page intentionally left blank.]


 


V-2














 


IN
WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered
by its officer thereunto duly authorized as of the date and at the place first
written above.


 


	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


V-3

















 


TRANSACTIONS

ON

SWING LINE NOTE


 


	
  Date

  	
   

  	
  Amount of

  Loan Made

  This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


V-4

















 


EXHIBIT VI


 


[FORM OF] COMPLIANCE CERTIFICATE


 


THE
UNDERSIGNED HEREBY CERTIFY THAT:


 


(1)           We are the duly
elected [Title] and [Title] of Ameriprise Financial, Inc., a Delaware
corporation (“Company”);


 


(2)           We have reviewed the
terms of that certain Credit Agreement dated as of September 30, 2005, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the terms
defined therein and not otherwise defined in this Certificate (including
Attachment No. 1 annexed hereto and made a part hereof) being used in this
Certificate as therein defined), by and among Company, the financial
institutions listed therein as Lenders, and Wells Fargo Bank, National
Association, as Administrative Agent, and we have made, or have caused to be
made under our supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting period
covered by the attached financial statements;


 


(3)           The examination
described in paragraph (2) above did not disclose, and we have no
knowledge of, the existence of any condition or event which constitutes an
Event of Default or Potential Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of the
date of this Certificate [, except as set forth below].


 


[Set
forth [below] [in a separate attachment to this Certificate] are all exceptions
to paragraph (3) above listing, in detail, the nature of the condition or
event, the period during which it has existed and the action which Company has
taken, is taking, or proposes to take with respect to each such condition or
event:


 


                                                                                                                                                                                        ].


 


VI-1

















 


The foregoing certifications, together with the computations set forth
in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are
made and delivered this
                                    day
of                 ,                   pursuant
to subsection 6.1(iv) of the Credit Agreement.


 


	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


VI-2

















 


ATTACHMENT NO. 1

TO COMPLIANCE CERTIFICATE


 


This Attachment No. 1 is attached to and made a part Compliance
Certificate dated as of
                   ,                  
and pertains to the period from                   ,                 
to
                     ,                  .
Subsection references herein relate to subsections of the Credit Agreement.


 


	
  A.

  	
  Maximum Leverage Ratio (as
  of                           ,           )

  	
   

  	
   

  
	
   

  	
  1.

  	
  Consolidated
  Total Debt:

  	
   

  	
  $

  
	
   

  	
  2.

  	
  Consolidated
  Net Worth:

  	
   

  	
  $

  
	
   

  	
  3.

  	
  Consolidated
  Total Capitalization (1+2+3):

  	
   

  	
  $

  
	
   

  	
  4.

  	
  Leverage
  Ratio (1):(3):

  	
   

  	
        %

  
	
   

  	
  5.

  	
  Maximum
  ratio permitted under subsection 7.4A: 

  	
   

  	
  40%

  
	
   

  	
  Compliance (Yes/No)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Minimum Consolidated Net Worth (as of
                       ,               )

  	
   

  	
   

  
	
   

  	
  1.

  	
  Consolidated
  Net Worth:

  	
   

  	
  $

  
	
   

  	
  2.

  	
  Maximum
  ratio permitted under subsection 7.4B:

  	
   

  	
  75%
  of the greater of (i) pro forma Consolidated Net Worth as of the
  Effective Date and (ii) pro forma Consolidated Net Worth as of
  June 30, 2005

  
	
   

  	
  Compliance (Yes/No)

  	
   

  	
   

  



 


VI-3

















 


EXHIBIT VII




[FORM OF] ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This
Assignment and Assumption Agreement (the “Assignment”) 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 amended, restated, supplemented
or otherwise modified, 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 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
Administrative Agent as contemplated below, the interest in and to all of the
Assignor’s rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor’s outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, letters of credit
and swingline loans) (the “Assigned
Interest”).
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment, without representation or warranty by
the Assignor.


 


	
  1.

  	
  Assignor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
   

  	
  Ameriprise
  Financial, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent:

  	
   

  	
  Wells
  Fargo Bank, National Association, as administrative agent under the Credit
  Agreement

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement

  	
   

  	
  The
  $750,000,000 Credit Agreement dated as of September 30, 2005 among Company,
  the Lenders parties thereto, Wells Fargo Bank, National Association, as
  Administrative Agent, and the other agents parties thereto

  



 






(1) Select as
applicable.


 


VII-1

















 


6.             Assigned Interest:


 


	
  Facility
  Assigned

  	
   

  	
  Aggregate

  Amount of

  Commitment/Loans

  for all Lenders

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage

  Assigned of

  Commitment/Loans(2)

  	
   

  
	
  Revolving
  Loan Commitment

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  
										



 


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


 


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


 


	
   

  	
   

  	
  ASSIGNOR

  
	
   

  	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASSIGNEE

  
	
   

  	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
  Consented to and Accepted:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION,

  	
   

  	
   

  	
   

  
	
  as Administrative Agent

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Consented to:]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  AMERIPRISE FINANCIAL, INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 






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


 


VII-2

















 


ANNEX 1


 


AMERIPRISE
FINANCIAL, INC.

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT

AND ASSUMPTION AGREEMENT


 


1.             Representations and Warranties.


 


1.1           Assignor. The Assignor
(a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and
clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment 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 any Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document delivered pursuant thereto, other than this Assignment (herein
collectively the “Loan Documents”), or any
collateral thereunder, (iii) the financial condition of Company, any of
its Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan Document or (iv) the performance or observance by Company, 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
to consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all requirements of an Eligible
Assignee under the Credit Agreement, (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to
subsection 6.1 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 to purchase the Assigned Interest on the basis
of which it has made such analysis and decision, and (v) if it is a Non-US
Lender, attached to the Assignment 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 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,
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


 


VII-3

















 


Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.(3)


 


3.             General Provisions. This Assignment shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment 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
by telecopy shall be effective as delivery of a manually executed counterpart
of this Assignment. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.


 






(3)                                  Administrative Agent should consider
whether this method conforms to its systems. In some circumstances, the
following alternative language may be appropriate: “From and after the
Effective Date, Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to or on or after
the Effective Date. The Assignor and the Assignee shall make all appropriate
adjustments in payments by Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly
between themselves.”


 


VII-4