Exhibit 10.1
EXECUTION VERSION







	
  

 
	
 AMENDED AND RESTATED CREDIT AGREEMENT

 
	
  

 
	
 Dated
 as of January 27, 2012

 
	
  

 
	
 among

 
	
  

 
	
 FOOT
 LOCKER, INC.,

 
	
 as
 the Borrower,

 
	
  

 
	
 The
 Guarantors Named Herein,

 
	
  

 
	
 BANK
 OF AMERICA, N.A.,

 
	
 as
 Administrative Agent, Collateral Agent, Swing Line Lender

 
	
 and

 
	
 L/C
 Issuer,

 
	
  

 
	
 and

 
	
  

 
	
 The
 Other Lenders Party Hereto

 
	
  

 
	
 JPMORGAN
 CHASE BANK, N.A.

 
	
 WELLS
 FARGO CAPITAL FINANCE, LLC,

 
	
 as
 Co-Syndication Agents

 
	
  

 
	
 U.S.
 BANK NATIONAL ASSOCIATION,

 
	
 as
 Documentation Agent

 
	
  

 
	
 MERRILL
 LYNCH, PIERCE, FENNER & SMITH INCORPORATED and

 
	
 J.P.
 MORGAN SECURITIES LLC,

 
	
 as
 Joint Lead Arrangers and Joint Bookrunners

 

















EXECUTION VERSION


TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 
	
 Section

 	
  

 	
  

 	
 Page

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE I DEFINITIONS AND
 ACCOUNTING TERMS

 	
 1

 
	
  

 	
  

 
	
 1.01

 	
  

 	
 Defined Terms

 	
 1

 
	
 1.02

 	
  

 	
 Other Interpretive
 Provisions

 	
 42

 
	
 1.03

 	
  

 	
 Accounting Terms

 	
 43

 
	
 1.04

 	
  

 	
 Rounding

 	
 44

 
	
 1.05

 	
  

 	
 Times of Day

 	
 44

 
	
 1.06

 	
  

 	
 Letter of Credit Amounts

 	
 44

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE II THE COMMITMENTS
 AND CREDIT EXTENSIONS

 	
 44

 
	
  

 	
  

 
	
 2.01

 	
  

 	
 Committed Loans; Reserves

 	
 44

 
	
 2.02

 	
  

 	
 Borrowings, Conversions and
 Continuations of Committed Loans

 	
 45

 
	
 2.03

 	
  

 	
 Letters of Credit

 	
 47

 
	
 2.04

 	
  

 	
 Swing Line Loans

 	
 55

 
	
 2.05

 	
  

 	
 Prepayments

 	
 58

 
	
 2.06

 	
  

 	
 Termination or Reduction
 of Commitments

 	
 59

 
	
 2.07

 	
  

 	
 Repayment of Loans

 	
 60

 
	
 2.08

 	
  

 	
 Interest

 	
 60

 
	
 2.09

 	
  

 	
 Fees

 	
 61

 
	
 2.10

 	
  

 	
 Computation of Interest
 and Fees

 	
 61

 
	
 2.11

 	
  

 	
 Evidence of Debt

 	
 61

 
	
 2.12

 	
  

 	
 Payments Generally;
 Administrative Agent’s Clawback

 	
 62

 
	
 2.13

 	
  

 	
 Sharing of Payments by
 Lenders

 	
 63

 
	
 2.14

 	
  

 	
 Settlement Amongst Lenders

 	
 64

 
	
 2.15

 	
  

 	
 Increase in Commitments

 	
 64

 
	
 2.16

 	
  

 	
 Defaulting Lenders

 	
 66

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE III TAXES, YIELD
 PROTECTION AND ILLEGALITY

 	
 68

 
	
  

 	
  

 
	
 3.01

 	
  

 	
 Taxes

 	
 68

 
	
 3.02

 	
  

 	
 Illegality

 	
 72

 
	
 3.03

 	
  

 	
 Inability to Determine
 Rates

 	
 73

 
	
 3.04

 	
  

 	
 Increased Costs; Reserves
 on LIBOR Rate Loans

 	
 73

 
	
 3.05

 	
  

 	
 Compensation for Losses

 	
 74

 
	
 3.06

 	
  

 	
 Mitigation Obligations; Replacement
 of Lenders

 	
 75

 
	
 3.07

 	
  

 	
 Survival

 	
 75

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE IV CONDITIONS
 PRECEDENT TO CREDIT EXTENSIONS

 	
 75

 
	
  

 	
  

 
	
 4.01

 	
  

 	
 Conditions of
 Effectiveness of Agreement

 	
 76

 
	
 4.02

 	
  

 	
 Conditions to all Credit
 Extensions

 	
 78

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE V REPRESENTATIONS
 AND WARRANTIES

 	
 79

 
	
  

 	
  

 
	
 5.01

 	
  

 	
 Existence, Qualification
 and Power

 	
 79

 
	
 5.02

 	
  

 	
 Authorization; No
 Contravention

 	
 79

 
	
 5.03

 	
  

 	
 Governmental
 Authorization; Other Consents

 	
 80

 
	
 5.04

 	
  

 	
 Binding Effect

 	
 80

 
	
 5.05

 	
  

 	
 Financial Statements; No
 Material Adverse Effect

 	
 80

 
	
 5.06

 	
  

 	
 Litigation

 	
 81

 


(i)






EXECUTION VERSION 


	
  

 	
  

 	
  

 	
  

 
	
 5.07

 	
  

 	
 No Default

 	
 81

 
	
 5.08

 	
  

 	
 Ownership of Property;
 Liens

 	
 81

 
	
 5.09

 	
  

 	
 Environmental Compliance

 	
 81

 
	
 5.10

 	
  

 	
 Insurance

 	
 82

 
	
 5.11

 	
  

 	
 Taxes

 	
 82

 
	
 5.12

 	
  

 	
 ERISA Compliance

 	
 82

 
	
 5.13

 	
  

 	
 Subsidiaries; Equity
 Interests

 	
 83

 
	
 5.14

 	
  

 	
 Margin Regulations;
 Investment Company Act

 	
 83

 
	
 5.15

 	
  

 	
 Disclosure

 	
 84

 
	
 5.16

 	
  

 	
 Compliance with Laws

 	
 84

 
	
 5.17

 	
  

 	
 Intellectual Property

 	
 84

 
	
 5.18

 	
  

 	
 Labor Matters

 	
 84

 
	
 5.19

 	
  

 	
 Security Documents

 	
 85

 
	
 5.20

 	
  

 	
 Solvency

 	
 85

 
	
 5.21

 	
  

 	
 Deposit Accounts; Credit
 Card Arrangements

 	
 85

 
	
 5.22

 	
  

 	
 Brokers

 	
 85

 
	
 5.23

 	
  

 	
 Customer and Trade
 Relations

 	
 85

 
	
 5.24

 	
  

 	
 Casualty

 	
 85

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VI AFFIRMATIVE
 COVENANTS

 	
 86

 
	
  

 	
  

 
	
 6.01

 	
  

 	
 Financial Statements

 	
 86

 
	
 6.02

 	
  

 	
 Certificates; Other
 Information

 	
 87

 
	
 6.03

 	
  

 	
 Notices

 	
 89

 
	
 6.04

 	
  

 	
 Payment of Obligations

 	
 90

 
	
 6.05

 	
  

 	
 Preservation of Existence,
 Etc

 	
 90

 
	
 6.06

 	
  

 	
 Maintenance of Properties

 	
 90

 
	
 6.07

 	
  

 	
 Maintenance of Insurance

 	
 90

 
	
 6.08

 	
  

 	
 Compliance with Laws

 	
 91

 
	
 6.09

 	
  

 	
 Books and Records;
 Accountants

 	
 92

 
	
 6.10

 	
  

 	
 Inspection Rights

 	
 92

 
	
 6.11

 	
  

 	
 Use of Proceeds

 	
 92

 
	
 6.12

 	
  

 	
 Additional Loan Parties

 	
 92

 
	
 6.13

 	
  

 	
 Cash Management

 	
 93

 
	
 6.14

 	
  

 	
 Information Regarding the
 Collateral

 	
 94

 
	
 6.15

 	
  

 	
 Physical Inventories

 	
 95

 
	
 6.16

 	
  

 	
 Environmental Laws

 	
 95

 
	
 6.17

 	
  

 	
 Further Assurances

 	
 95

 
	
 6.18

 	
  

 	
 Compliance with Terms of
 Leaseholds

 	
 95

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VII NEGATIVE
 COVENANTS

 	
 96

 
	
  

 	
  

 
	
 7.01

 	
  

 	
 Liens

 	
 96

 
	
 7.02

 	
  

 	
 Investments

 	
 96

 
	
 7.03

 	
  

 	
 Indebtedness; Disqualified
 Stock

 	
 96

 
	
 7.04

 	
  

 	
 Fundamental Changes

 	
 96

 
	
 7.05

 	
  

 	
 Dispositions

 	
 97

 
	
 7.06

 	
  

 	
 Restricted Payments

 	
 97

 
	
 7.07

 	
  

 	
 Prepayments of
 Indebtedness

 	
 97

 
	
 7.08

 	
  

 	
 Change in Nature of
 Business

 	
 97

 
	
 7.09

 	
  

 	
 Transactions with
 Affiliates

 	
 98

 
	
 7.10

 	
  

 	
 Burdensome Agreements

 	
 98

 
	
 7.11

 	
  

 	
 Use of Proceeds

 	
 98

 


(ii)






EXECUTION VERSION 


	
  

 	
  

 	
  

 	
  

 
	
 7.12

 	
  

 	
 Amendment of Material
 Documents

 	
 98

 
	
 7.13

 	
  

 	
 Fiscal Year

 	
 99

 
	
 7.14

 	
  

 	
 Deposit Accounts; Credit
 Card Processors

 	
 99

 
	
 7.15

 	
  

 	
 Adjusted Availability

 	
 99

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VIII EVENTS OF
 DEFAULT AND REMEDIES

 	
 99

 
	
  

 	
  

 
	
 8.01

 	
  

 	
 Events of Default

 	
 99

 
	
 8.02

 	
  

 	
 Remedies Upon Event of
 Default

 	
 102

 
	
 8.03

 	
  

 	
 Application of Funds

 	
 102

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE IX ADMINISTRATIVE
 AGENT

 	
 104

 
	
  

 	
  

 
	
 9.01

 	
  

 	
 Appointment and Authority

 	
 104

 
	
 9.02

 	
  

 	
 Rights as a Lender

 	
 104

 
	
 9.03

 	
  

 	
 Exculpatory Provisions

 	
 104

 
	
 9.04

 	
  

 	
 Reliance by Agents

 	
 105

 
	
 9.05

 	
  

 	
 Delegation of Duties

 	
 106

 
	
 9.06

 	
  

 	
 Resignation of Agents

 	
 106

 
	
 9.07

 	
  

 	
 Non-Reliance on
 Administrative Agent and Other Lenders

 	
 107

 
	
 9.08

 	
  

 	
 No Other Duties, Etc

 	
 107

 
	
 9.09

 	
  

 	
 Administrative Agent May
 File Proofs of Claim

 	
 107

 
	
 9.10

 	
  

 	
 Collateral and Guaranty
 Matters

 	
 108

 
	
 9.11

 	
  

 	
 Notice of Transfer

 	
 108

 
	
 9.12

 	
  

 	
 Reports and Financial
 Statements

 	
 108

 
	
 9.13

 	
  

 	
 Agency for Perfection

 	
 109

 
	
 9.14

 	
  

 	
 Indemnification of Agents

 	
 109

 
	
 9.15

 	
  

 	
 Relation among Lenders

 	
 110

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE X MISCELLANEOUS

 	
 110

 
	
  

 	
  

 
	
 10.01

 	
  

 	
 Amendments, Etc

 	
 110

 
	
 10.02

 	
  

 	
 Notices; Effectiveness;
 Electronic Communications

 	
 112

 
	
 10.03

 	
  

 	
 No Waiver; Cumulative
 Remedies

 	
 113

 
	
 10.04

 	
  

 	
 Expenses; Indemnity;
 Damage Waiver

 	
 113

 
	
 10.05

 	
  

 	
 Payments Set Aside

 	
 115

 
	
 10.06

 	
  

 	
 Successors and Assigns

 	
 116

 
	
 10.07

 	
  

 	
 Treatment of Certain
 Information; Confidentiality

 	
 120

 
	
 10.08

 	
  

 	
 Right of Setoff

 	
 120

 
	
 10.09

 	
  

 	
 Interest Rate Limitation

 	
 121

 
	
 10.10

 	
  

 	
 Counterparts; Integration;
 Effectiveness

 	
 121

 
	
 10.11

 	
  

 	
 Survival

 	
 121

 
	
 10.12

 	
  

 	
 Severability

 	
 122

 
	
 10.13

 	
  

 	
 Replacement of Lenders

 	
 122

 
	
 10.14

 	
  

 	
 Governing Law;
 Jurisdiction; Etc

 	
 122

 
	
 10.15

 	
  

 	
 Waiver of Jury Trial

 	
 123

 
	
 10.16

 	
  

 	
 No Advisory or Fiduciary
 Responsibility

 	
 124

 
	
 10.17

 	
  

 	
 USA PATRIOT Act Notice

 	
 124

 
	
 10.18

 	
  

 	
 Foreign Asset Control
 Regulations

 	
 125

 
	
 10.19

 	
  

 	
 Time of the Essence

 	
 125

 
	
 10.20

 	
  

 	
 Press Releases

 	
 125

 
	
 10.21

 	
  

 	
 Additional Waivers

 	
 125

 
	
 10.22

 	
  

 	
 No Strict Construction

 	
 127

 
	
 10.23

 	
  

 	
 Attachments

 	
 127

 


(iii)






EXECUTION VERSION 


	
  

 	
  

 
	
               SIGNATURES

 	
 S-1

 


(iv)






EXECUTION VERSION 


	
  

 	
  

 	
  

 
	
 SCHEDULES

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 1.01

 	
 Guarantors

 
	
  

 	
 1.02

 	
 Immaterial Subsidiaries

 
	
  

 	
 2.01

 	
 Commitments and Applicable
 Percentages

 
	
  

 	
 4.01

 	
 Security Documents and
 other Loan Documents delivered on Effective Date

 
	
  

 	
 5.01

 	
 Loan Parties
 Organizational Information

 
	
  

 	
 5.05

 	
 Supplement to Interim
 Financial Statements

 
	
  

 	
 5.06

 	
 Litigation

 
	
  

 	
 5.09

 	
 Environmental Matters

 
	
  

 	
 5.13

 	
 Subsidiaries; Other Equity
 Investments

 
	
  

 	
 5.17

 	
 Intellectual Property
 Matters

 
	
  

 	
 5.18

 	
 Collective Bargaining
 Agreements

 
	
  

 	
 6.02

 	
 Financial and Collateral
 Reporting

 
	
  

 	
 7.01

 	
 Existing Liens

 
	
  

 	
 7.02

 	
 Existing Investments

 
	
  

 	
 7.03

 	
 Existing Indebtedness

 
	
  

 	
 10.02

 	
 Administrative Agent’s
 Office; Certain Addresses for Notices

 






	
  

 	
  

 	
  

 
	
 EXHIBITS

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Form of

 
	
  

 	
  

 	
  

 
	
  

 	
 A

 	
 Committed Loan Notice

 
	
  

 	
 B

 	
 Swing Line Loan Notice

 
	
  

 	
 C-1

 	
 Revolving Note

 
	
  

 	
 C-2

 	
 Swing Line Note

 
	
  

 	
 D

 	
 Compliance Certificate

 
	
  

 	
 E

 	
 Assignment and Assumption

 
	
  

 	
 F

 	
 Borrowing Base Certificate

 
	
  

 	
 G

 	
 Collateral Access
 Agreement

 
	
  

 	
 H

 	
 Credit Card Notification

 
	
  

 	
 I

 	
 Joinder Agreement

 


(v)







EXECUTION VERSION


AMENDED AND RESTATED CREDIT AGREEMENT


          This
AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of
January 27, 2012, among 


          FOOT
LOCKER, INC., a New York corporation (the “Borrower”), 


          the Persons
named on Schedule 1.01 hereto (collectively with each other Person that
from time to time becomes a “Guarantor” hereunder, the “Guarantors”),


          each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), 


          BANK OF
AMERICA, N.A., as Administrative Agent, Collateral Agent, Swing Line Lender and
L/C Issuer; 


          JPMORGAN
CHASE BANK, N.A. and WELLS FARGO CAPITAL FINANCE, LLC, as Co-Syndication
Agents; and


          U.S. BANK
NATIONAL ASSOCIATION, as Documentation Agent.


W I T N
E S S E T H:


          WHEREAS,
the Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders have indicated their willingness to lend and the L/C
Issuer has indicated its willingness to issue Letters of Credit, in each case
on the terms and conditions set forth herein;


          WHEREAS,
prior to the date of this Agreement, the Borrower, on the one hand, and Bank of
America, N.A., as Administrative Agent and Collateral Agent thereunder, and the
lenders party thereto, on the other hand, previously entered into a Credit
Agreement dated as of March 20, 2009 (as amended and in effect on the date of
this Agreement, the “Existing Credit Agreement”), pursuant to which the lenders
party thereto provided the Borrower with certain financial accommodations; and


          WHEREAS, in
accordance with Section 10.01 of the Existing Credit Agreement, the Borrower,
the Lenders, and the Agents desire to amend and restate the Existing Credit
Agreement as provided herein. 


          NOW,
THEREFORE, in consideration of the mutual conditions and agreements set forth
in this Agreement, and for good and valuable consideration, the receipt of
which is hereby acknowledged, the undersigned hereby agree that the Existing
Credit Agreement shall be amended and restated in its entirety as follows (it
being agreed that this Agreement shall not be deemed to evidence or result in a
novation or repayment and reborrowing of the Obligations under, and as defined
in, the Existing Credit Agreement):


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


          1.01
Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:


          “Accommodation
Payment” has the meaning specified in Section 10.21(d). 


-1-





EXECUTION VERSION


          “Account”
means “Account” as defined in the UCC, and also means a right to payment of a
monetary obligation, whether or not earned by performance, (a) for property
that has been or is to be sold, leased, licensed, assigned, or otherwise
disposed of, (b) for services rendered or to be rendered, or (c) arising out of
the use of a credit or charge card or information contained on or for use with
the card.


          “ACH” means
automated clearing house transfers.


          “Acquisition”
means, with respect to any Person (a) an Investment in, or a purchase of a
Controlling interest in, the Equity Interests of any other Person, (b) a
purchase or other acquisition of all or substantially all of the assets or
properties of, another Person or of any business unit of another Person, (c)
any merger or consolidation of such Person with any other Person or other
transaction or series of transactions resulting in the acquisition of all or
substantially all of the assets, or a Controlling interest in the Equity
Interests, of any Person, or (d) any acquisition of Store locations of any
Person for which the aggregate consideration payable in connection with such
acquisition is $25,000,000 or more, in each case in any transaction or group of
transactions which are part of a common plan.


          “Act” has
the meaning specified in Section 10.17.


          “Additional
Commitment Lender” has the meaning specified in Section 2.15.


          “Adjusted
Availability” means, as of any date of determination thereof, the result, if a
positive number, of: 


                    (a)
the Borrowing Base as of such date;


                              minus


                    (b)
the Total Outstandings on such date.


          “Adjusted
LIBOR Rate” means, with respect to any LIBOR Borrowing for any Interest Period,
an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of
one percent (1%)) equal to (a) the LIBOR Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate. The Adjusted LIBOR Rate will be
adjusted automatically as to all LIBOR Borrowings then outstanding as of the
effective date of any change in the Statutory Reserve Rate.


          “Adjustment
Date” means the first day of each Fiscal Quarter, commencing April 29, 2012.


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


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


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


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


-2-





EXECUTION VERSION


          “Agent(s)”
means, individually, the Administrative Agent or the Collateral Agent, and
collectively means both of them.


          “Agent
Parties” has the meaning specified in Section 10.02(c).


          “Aggregate
Commitments” means the sum of the Commitments of all the Lenders. As of the
Effective Date, the Aggregate Commitments are $200,000,000.


          “Agreement”
means this Credit Agreement.


          “Allocable
Amount” has the meaning specified in Section 10.21(d).


          “Applicable
Margin” means: 


                    (a)
From and after the Effective Date until the first Adjustment Date, the
percentages set forth in Level II of the pricing grid below; and


                    (b)
From and after the first Adjustment Date and on each Adjustment Date
thereafter, the Applicable Margin shall be determined from the following
pricing grid based upon the Average Daily Availability as of the Fiscal Quarter
ended immediately preceding such Adjustment Date; provided, that notwithstanding
anything to the contrary set forth herein, upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and at the
direction of the Required Lenders shall, immediately increase the Applicable
Margin to that set forth in Level II (even if the Average Daily Availability
requirements for a different Level have been met, without limiting the right of
the Administrative Agent or the Required Lenders to charge interest at the
Default Rate as provided in Section 2.08); provided further if the
Borrowing Base Certificates are at any time restated or otherwise revised
(including as a result of an audit) or if the information set forth in any
Borrowing Base Certificates otherwise proves to be false or incorrect such that
the Applicable Margin would have been higher than was otherwise in effect
during any period, without constituting a waiver of any Default or Event of
Default arising as a result thereof, interest due under this Agreement shall be
immediately recalculated at such higher rate for any applicable periods and
shall be due and payable on demand.


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Level

 	
  

 	
 Average

 Daily

 Availability

 	
  

 	
 LIBOR

 Margin

 	
  

 	
 Base Rate

 Margin

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 I

 	
  

 	
 Equal to or
 greater than 50% of the Loan Cap

 	
  

 	
 1.25%

 	
  

 	
 0.25%

 
	
 II

 	
  

 	
 Less than
 50% of the Loan Cap

 	
  

 	
 1.50%

 	
  

 	
 0.50%

 


          “Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s 


-3-





EXECUTION VERSION


Commitment at such time, subject to adjustment as provided in Section
2.16. If the commitment of each Lender to make Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 2.06 or Section 8.02 or if the Aggregate Commitments have expired, then
the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to
any subsequent assignments. The initial Applicable Percentage of each Lender is
set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.


          “Applicable
Rate” means, at any time of calculation, a per annum rate equal to the
Applicable Margin for LIBOR Rate Loans.


           “Appraised
Value” means, with respect to the Loan Parties’ Eligible Inventory, the
appraised orderly liquidation value, net of costs and expenses to be incurred
in connection with any such liquidation, which value is expressed as a
percentage of Cost of the Loan Parties’ Eligible Inventory as set forth in the
Loan Parties’ inventory stock ledger, which value shall be determined from time
to time by the most recent appraisal undertaken by an independent appraiser
engaged by the Administrative Agent.


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


          “Arrangers”
means, collectively, MLPFS and J.P. Morgan Securities LLC, in their capacities
as joint lead arrangers and joint book-runners.


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


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


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


          “Audited
Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the Fiscal Year ended January 29, 2011, and
the related consolidated statements of income or operations, Shareholders’ Equity
and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.


          “Auto-Extension
Letter of Credit” has the meaning specified in Section 2.03(b)(iii).


          “Availability”
means, as of any date of determination thereof, the result, if a positive
number, of: 


                    (a)
the Loan Cap as of such date;


                              minus


-4-





EXECUTION VERSION


                              (b)
the Total Outstandings on such date.


          “Availability
Period” means the period from and including the Effective Date to the earliest
of (a) the Maturity Date, (b) the date of termination of the Aggregate
Commitments pursuant to Section 2.06, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 8.02.


          “Availability
Reserves” means, without duplication of any other Reserves or items that are
otherwise addressed or excluded through eligibility criteria, such reserves as
the Administrative Agent from time to time determines in its Permitted
Discretion, as being appropriate (a) to reflect the impediments to the Agents’
ability to realize upon the Collateral, (b) to reflect claims and liabilities
that the Administrative Agent determines in its Permitted Discretion will need
to be satisfied in connection with the realization upon the Collateral, (c) to
reflect criteria, events, conditions, contingencies or risks which adversely affect
any component of the Borrowing Base, or the assets, business, financial
performance or financial condition of any Loan Party, or (d) to reflect that a
Default or an Event of Default then exists. Without limiting the generality of
the foregoing, Availability Reserves may include, in the Administrative Agent’s
Permitted Discretion, (but are not limited to) reserves based on: (i) rent;
(ii) customs duties, and other costs to release Inventory which is being
imported into the United States; (iii) outstanding Taxes and other governmental
charges, including, without limitation, ad valorem, real estate, personal
property, sales, and other Taxes which have priority over the interests of the
Collateral Agent in the Collateral; (iv) during the continuance of a Triggering
Event only, salaries, wages and benefits due to employees of any Loan Party,
(v) Customer Credit Liabilities, (vi) reserves for reasonably anticipated
changes in the Appraised Value of Eligible Inventory between appraisals, (vii)
warehousemen’s or bailee’s charges and other Permitted Encumbrances which have
priority over the interests of the Collateral Agent in the Collateral, (viii)
Cash Management Reserves, and (ix) Bank Products Reserves.


          “Average
Daily Availability” means, as of any date of determination, the average daily
Availability for the immediately preceding Fiscal Quarter.


          “Bank of
America” means Bank of America, N.A. and its successors.


           “Bank
Products” means any services of facilities provided to any Loan Party by the
Administrative Agent or any Lender or any of their respective Affiliates,
including, without limitation, on account of (a) Swap Contracts and (b)
leasing, but excluding Cash Management Services.


          “Bank
Product Reserves” means such reserves as the Administrative Agent from time to
time determines in its Permitted Discretion as reflecting the liabilities of
the Loan Parties with respect to Bank Products then provided or outstanding.


          “Base Rate” means for any day a fluctuating
rate per annum equal to the highest of (a) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
“prime rate”; (b) the Federal Funds Rate for such day, plus 0.50%; and (c) the
LIBOR Rate for a one month interest period as determined on such day, plus
1.0%. The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in Bank of America’s prime rate, the Federal Funds Rate or the LIBOR Rate,
respectively, shall take effect at the opening of business on the day specified
in the public announcement of such change.


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


-5-





EXECUTION VERSION


          “Blocked
Account” has the meaning specified in Section 6.13(a)(ii).


          “Blocked
Account Agreement” means with respect to an account established by a Loan
Party, an agreement, in form and substance reasonably satisfactory to the
Collateral Agent, establishing “control” (as defined in the UCC) of such
account by the Collateral Agent and whereby the bank maintaining such account
agrees, upon the occurrence and during the continuance of a Triggering Event,
to comply only with the instructions originated by the Collateral Agent without
the further consent of any Loan Party.


          “Blocked Account
Bank” means each bank with whom deposit accounts are maintained in which any
funds of any of the Loan Parties from one or more DDAs are concentrated and
with whom a Blocked Account Agreement has been, or is required to be, executed
in accordance with the terms hereof.


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


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


          “Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.


          “Borrowing
Base” means, at any time of calculation, an amount equal to:


                    (a)
the face amount of Eligible Credit Card Receivables multiplied by 90%


                    plus


          (b)
the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by 85%
multiplied by the Appraised Value of Eligible Inventory;


                    minus



                    (c)
the then amount of all Availability Reserves.


          “Borrowing
Base Certificate” means a certificate substantially in the form of Exhibit F
hereto (with such changes therein as may be required by the Administrative
Agent to reflect the components of and Reserves against the Borrowing Base as
provided for hereunder from time to time), executed by a Responsible Officer of
the Borrower.


          “Brooklyn
Property Purchase” means the purchase by the Borrower or a Subsidiary of the
Borrower from the Retirement Plan Trustee of the real property located at
5312-5318 Fifth Avenue, Brooklyn, New York 11220 for a purchase price of
approximately $5,200,000 (excluding any related taxes and fees).


          “Business
Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the
state where the Administrative Agent’s Office is located and, if such day
relates to any LIBOR Rate Loan, means any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank market. 


          “Capital
Expenditures” means, with respect to any Person for any period, (a) all
expenditures made (whether made in the form of cash or other property) or costs
incurred for the acquisition or improvement of fixed or capital assets of such
Person (excluding normal replacements and maintenance 


-6-





EXECUTION VERSION


which are properly charged to current operations), in each case that
are (or should be) set forth as capital expenditures in a Consolidated
statement of cash flows of such Person for such period, in each case prepared
in accordance with GAAP, and (b) Capital Lease Obligations incurred by a Person
during such period. For purposes of this definition, the purchase price of equipment
that is purchased substantially contemporaneously with the trade-in or sale of
similar equipment or with insurance proceeds therefrom shall be included in
Capital Expenditures only to the extent of the gross amount by which such
purchase price exceeds the credit granted to such Person for the equipment
being traded in by the seller of such new equipment, the proceeds of such sale
or the amount of the insurance proceeds, as the case may be.


          “Capital
Lease Obligations” means, with respect to any Person for any period, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as liabilities on a balance sheet of such Person under GAAP and
the amount of which obligations shall be the capitalized amount thereof
determined in accordance with GAAP.


          “Cash
Collateral Account” means an account established by one or more of the Loan
Parties with Bank of America, in the name of the Collateral Agent (or as the
Collateral Agent shall otherwise direct) and under the sole and exclusive
dominion and control of the Collateral Agent, in which deposits are required to
be made in accordance with Section 2.03(g) or 8.02(c).


          “Cash
Collateralize” has the meaning specified in Section 2.03(g).


          “Cash
Management Reserves “ means such reserves as the Administrative Agent, from
time to time, determines in its Permitted Discretion as reflecting the
reasonably anticipated liabilities of the Loan Parties with respect to Cash
Management Services then provided or outstanding.


          “Cash
Management Services” means any cash management services provided to any Loan
Party by the Administrative Agent or any Lender or any of their respective
Affiliates, including, without limitation, (a) ACH transactions, (b) controlled
disbursement services, treasury, depository, overdraft, and electronic funds
transfer services, (c) foreign exchange facilities, (d) credit card processing
services, (d) purchase cards, and (e) credit or debit cards.


          “CERCLA”
means the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. § 9601 et seq.


          “CERCLIS”
means the Comprehensive Environmental Response, Compensation, and Liability
Information System maintained by the United States Environmental Protection
Agency.


          “CFC” means
a Subsidiary that is (i) a controlled foreign corporation under Section 957 of
the Code, (ii) a Subsidiary substantially all of the assets of which consist of
Equity Interests in Subsidiaries described in clause (i) of this definition, or
(iii) an entity treated as disregarded for United States federal income tax
purposes, substantially all of the assets of which consist of more than 65% of
the voting Equity Interests of a Subsidiary described in clauses (i) or (ii) of
this definition.


          “Change in
Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, rule,
guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the
contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and
all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (y) all 


-7-





EXECUTION VERSION


requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed
to be a “Change in Law”, regardless of the date enacted, adopted or issued.


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


	
  

 	
  

 
	
  

 	
           (a) any
 “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
 the Securities Exchange Act of 1934, but excluding any employee benefit plan
 of such person or its subsidiaries, and any person or entity acting in its
 capacity as trustee, agent or other fiduciary or administrator of any such
 plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
 under the Securities Exchange Act of 1934, directly or indirectly, of 40% or
 more of the Equity Interests of the Borrower entitled to vote for members of
 the board of directors or equivalent governing body of the Borrower on a
 fully-diluted basis; or

 
	
  

 	
  

 
	
  

 	
           (b) during
 any period of 12 consecutive months, a majority of the members of the board
 of directors or other equivalent governing body of the Borrower cease to be
 composed of individuals (i) who were members of that board or equivalent
 governing body on the first day of such period, (ii) whose election or
 nomination to that board or equivalent governing body was approved by
 individuals referred to in clause (i) above constituting at the time of such
 election or nomination at least a majority of that board or equivalent
 governing body or (iii) whose election or nomination to that board or other
 equivalent governing body was approved by individuals referred to in clauses
 (i) and (ii) above constituting at the time of such election or nomination at
 least a majority of that board or equivalent governing body (excluding, in
 the case of both clause (ii) and clause (iii), any individual whose initial
 nomination for, or assumption of office as, a member of that board or
 equivalent governing body occurs as a result of an actual or threatened
 solicitation of proxies or consents for the election or removal of one or
 more directors by any person or group other than a solicitation for the
 election of one or more directors by or on behalf of the board of directors);
 or

 
	
  

 	
  

 
	
  

 	
           (c) any
 “change in control” or “sale” or “disposition” or similar event as defined in
 any document governing Material Indebtedness of any Loan Party; or

 
	
  

 	
  

 
	
  

 	
           (d) the
 Borrower fails at any time to own, directly or indirectly, 100% of the Equity
 Interests of each other Loan Party free and clear of all Liens (other than
 Permitted Encumbrances), except where such failure is as a result of a
 transaction permitted by the Loan Documents.

 


          “Closing
Date” means March 20, 2009.


          “Code” means
the Internal Revenue Code of 1986, and the regulations promulgated thereunder,
as amended and in effect.


          “Collateral”
means any and all “Collateral” as defined in any applicable Security Document
and all other property of any Loan Party that is under the terms of the
Security Documents subject to Liens in favor of the Collateral Agent.


          “Collateral
Access Agreement” means an agreement in substantially the form attached hereto
as Exhibit G or otherwise reasonably satisfactory in form and substance
to the Agents executed by (a) a bailee or other Person in possession of
Collateral, or (b) a landlord of Real Estate leased by any Loan Party, pursuant
to which such Person (i) acknowledges the Collateral Agent’s Lien on the
Collateral, (ii) 


-8-





EXECUTION VERSION


releases or subordinates such Person’s Liens in the Collateral held by
such Person or located on such Real Estate and agrees not to exercise any
remedies with respect to such Person’s Liens, (iii) provides the Collateral
Agent with access to the Collateral held by such bailee or other Person or
located in or on such Real Estate, and (iv) as to any landlord, provides the
Collateral Agent with a reasonable time to sell and dispose of the Collateral
from such Real Estate.


          “Collateral
Agent” means Bank of America, acting in such capacity for its own benefit and
the ratable benefit of the other Credit Parties.


          “Commercial
Letter of Credit” means any letter of credit or similar instrument (including,
without limitation, any bankers’ acceptances) issued for the purpose of
providing the primary payment mechanism in connection with the purchase of any
materials, goods or services by a Loan Party in the ordinary course of business
of such Loan Party.


          “Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to the
Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


           “Committed
Borrowing” means a borrowing, conversion or continuation consisting of
Committed Loans on a single date of the same Type and, in the case of LIBOR
Rate Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.


          “Committed
Loan” has the meaning specified in Section 2.01.


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


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


          “Concentration
Account” has the meaning specified in Section 6.13(c).


          “Consent”
means actual consent given by a Lender from whom such consent is sought.


          “Consolidated”
means, when used to modify a financial term, test, statement, or report of a Person,
the application or preparation of such term, test, statement or report (as
applicable) based upon the consolidation, in accordance with GAAP, of the
financial condition or operating results of such Person and its Subsidiaries.


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


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


          “Cost”
means the cost value of Inventory determined based on the retail method of
accounting as set forth in the financial stock ledger of the Borrower.


-9-





EXECUTION VERSION


          “Credit
Card Notifications” has the meaning specified in Section 6.13(a)(i).


          “Credit
Card Receivables” means each “Account” (as defined in the UCC) together with
all income, payments and proceeds thereof, owed by a major credit or debit card
issuer (including, but not limited to, Visa, Mastercard, Discover and American
Express and such other issuers approved by the Administrative Agent) to a Loan
Party resulting from charges by a customer of a Loan Party on credit or debit
cards issued by such issuer in connection with the sale of goods by a Loan
Party, or services performed by a Loan Party, in each case in the ordinary
course of its business.


          “Credit
Extensions” mean each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.


          “Credit
Party” or “Credit Parties” means (a) individually, (i) each Lender, (ii) each
Agent, (iii) each L/C Issuer, (iv) each Arranger, (v) each beneficiary of each
indemnification obligation undertaken by any Loan Party under any Loan
Document, (vi) each Person providing Cash Management Services or Bank Products
to a Loan Party or a Subsidiary, and (vii) the successors and assigns of each
of the foregoing, and (b) collectively, all of the foregoing.


          “Customer
Credit Liabilities” means at any time, the aggregate remaining value at such
time of (a) outstanding gift certificates and gift cards of the Loan Parties
entitling the holder thereof to use all or a portion of the certificate or gift
card to pay all or a portion of the purchase price for any Inventory, and (b)
outstanding merchandise credits and customer deposits of the Loan Parties. 


          “Customs
Broker Agreement” means an agreement in form and substance reasonably
satisfactory to the Collateral Agent among a Loan Party, a customs broker or
other carrier, and the Collateral Agent, in which the customs broker or other
carrier acknowledges that it has control over and holds the documents
evidencing ownership of the subject Inventory for the benefit of the Collateral
Agent and agrees, upon notice from the Collateral Agent, to hold and dispose of
the subject Inventory solely as directed by the Collateral Agent. 


          “DDA” means
each checking, savings or other demand deposit account maintained by any of the
Loan Parties (other than any payroll, trust and tax withholding accounts
maintained in the ordinary course of business). All funds in each DDA shall be
conclusively presumed to be Collateral and proceeds of Collateral and the
Agents and the Lenders shall have no duty to inquire as to the source of the
amounts on deposit in any DDA.


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


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


          “Default
Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Margin, if any, applicable to Base Rate Loans, plus (iii) 2% per
annum; provided, however, that with respect to a LIBOR Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any
Applicable Margin) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate for Standby Letters of Credit or Commercial Letters of Credit, as
applicable, plus 2% per annum.


-10-





EXECUTION VERSION


          “Defaulting
Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to
(i) fund all or any portion of its Loans within two Business Days of the date
such Loans were required to be funded hereunder unless such Lender notifies the
Administrative Agent and the Borrower in writing that such failure is the
result of such Lender’s determination that one or more conditions precedent to
funding (each of which conditions precedent, together with any applicable
Default, shall be specifically identified in such writing) has not been
satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing
Line Lender or any other Lender any other amount required to be paid by it
hereunder (including in respect of its participation in Letters of Credit or
Swing Line Loans) within two Business Days of the date when due, (b) has
notified the Borrower, the Administrative Agent, the L/C Issuer or the Swing
Line Lender in writing that it does not intend to comply with its funding
obligations hereunder, or has made a public statement to that effect (unless
such writing or public statement relates to such Lender’s obligation to fund a
Loan hereunder and states that such position is based on such Lender’s
determination that a condition precedent to funding (which condition precedent,
together with any applicable Default, shall be specifically identified in such
writing or public statement) cannot be satisfied), (c) has failed, within three
Business Days after written request by the Administrative Agent or the
Borrower, to confirm in writing to the Administrative Agent and the Borrower
that it will comply with its prospective funding obligations hereunder
(provided that such Lender shall cease to be a Defaulting Lender pursuant to
this clause (c) upon receipt of such written confirmation by the Administrative
Agent and the Borrower), or (d) has, or has a direct or indirect parent company
that has, (i) become the subject of a proceeding under any Debtor Relief Law,
or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or assets, including the Federal
Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such a capacity; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any
Equity Interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority so long as such ownership interest does not result
in or provide such Lender with immunity from the jurisdiction of courts within
the United States or from the enforcement of judgments or writs of attachment
on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contracts or agreements made with such
Lender. Any determination by the Administrative Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through (d) above, and
of the effective date of such status, shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender
(subject to Section 2.16(b)) as of the date established therefor by the
Administrative Agent in a written notice of such determination, which shall be
delivered by the Administrative Agent to the Borrower, the L/C Issuer, the
Swing Line Lender and each other Lender promptly following such determination.


          “Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction), whether in one transaction or
in a series of transactions, of any property (including, without limitation,
any Equity Interests) by any Person (or the granting of any option or other right
to do any of the foregoing), including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.


          “Disqualified
Stock” means any Equity Interest that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each
case at the option of the holder thereof), or upon the happening of any event,
matures or is mandatorily redeemable (other than solely for Equity Interests
that do not constitute Disqualified Stock), pursuant to a sinking fund
obligation or otherwise, or redeemable (other than solely for Equity Interests
that do not constitute Disqualified Stock) at the option of the holder thereof,
in whole or in part, on or prior to the date that is 91 days after the Maturity
Date; provided, however, that (i) only the portion of such Equity
Interests which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to
such date shall be deemed to be Disqualified Stock and (ii) with respect to any
Equity Interests issued to any employee or to any plan for the benefit of
employees of the Borrower or its 


-11-





EXECUTION VERSION


Subsidiaries or by any such plan to such employees, such Equity
Interest shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Borrower or one of its Subsidiaries in order
to satisfy applicable statutory or regulatory obligations or as a result of
such employee’s termination, resignation, death or disability and if any class
of Equity Interest of such Person that by its terms authorizes such Person to
satisfy its obligations thereunder by delivery of an Equity Interest that is
not Disqualified Stock, such Equity Interests shall not be deemed to be
Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interest
that would constitute Disqualified Stock solely because the holders thereof
have the right to require a Loan Party to repurchase such Equity Interest upon
the occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock.


          “Documentation
Agent” means U.S. Bank National Association.


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


          “Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States of America, any State thereof or the
District of Columbia (excluding, for the avoidance of doubt, any Subsidiary
organized under the laws of Puerto Rico or any other territory).


          “Due
Diligence Certificate” has the meaning specified in the Security Agreement.


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


          “Eligible
Assignee” means (a) a Credit Party or any of its Affiliates; (b) a bank,
insurance company, or company engaged in the business of making commercial
loans, which Person, together with its Affiliates, has a combined capital and
surplus in excess of $250,000,000; (c) an Approved Fund; and (d) any other
Person (other than a natural person) approved by (i) the Administrative Agent,
the L/C Issuer and the Swing Line Lender, and (ii) unless an Event of Default
has occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include a Loan Party or any of the
Loan Parties’ Affiliates or Subsidiaries or any Defaulting Lender.


          “Eligible
Credit Card Receivables” means at the time of any determination thereof, each
Credit Card Receivable that satisfies the following criteria at the time of
creation and continues to meet the same at the time of such determination: such
Credit Card Receivable (i) has been earned by performance and represents the
bona fide amounts due to a Loan Party from a credit card payment processor
and/or credit card issuer, and in each case originated in the ordinary course
of business of such Loan Party, and (ii) is not ineligible for inclusion in the
calculation of the Borrowing Base pursuant to any of clauses (a) through (k)
below. Without limiting the foregoing, to qualify as an Eligible Credit Card
Receivable, an Account shall indicate no Person other than a Loan Party as
payee or remittance party. In determining the amount to be so included, the
face amount of an Account shall be reduced by, without duplication, to the
extent not reflected in such face amount, (x) the amount of all accrued and
actual discounts, claims, credits or credits pending, promotional program
allowances offered by the Loan Parties, price adjustments, finance charges or
other allowances (including any amount that a Loan Party may be obligated to
rebate to a customer, a credit card payment processor, or credit card issuer
pursuant to the terms of any agreement or understanding) and (y) the aggregate
amount of all cash received in respect of such Account but not yet applied by
the Loan Parties to reduce the amount of such Credit Card Receivable. Except as
otherwise agreed by the Administrative Agent, any Credit Card Receivable
included within any of the following categories shall not constitute an
Eligible Credit Card Receivable: 


-12-





EXECUTION VERSION


	
  

 	
  

 
	
  

 	
           (a)
 Credit Card Receivable which do not constitute an “Account” (as defined in
 the UCC);

 
	
  

 	
  

 
	
  

 	
           (b)
 Credit Card Receivables that have been outstanding for more than five (5)
 Business Days from the date of sale;

 
	
  

 	
  

 
	
  

 	
           (c)
 Credit Card Receivables with respect to which a Loan Party does not have good
 and valid title, free and clear of any Lien (other than Liens granted to the
 Collateral Agent and other Permitted Encumbrances);

 
	
  

 	
  

 
	
  

 	
           (d)
 Credit Card Receivables that are not subject to a first priority security
 interest in favor of the Collateral Agent (other than Permitted Encumbrances
 having priority over the Lien of the Collateral Agent under applicable Law)
 (it being the intent that chargebacks in the ordinary course by such
 processors shall not be deemed violative of this clause);

 
	
  

 	
  

 
	
  

 	
           (e)
 Credit Card Receivables which are disputed, are with recourse, or with
 respect to which a claim, counterclaim, offset or chargeback has been
 asserted (to the extent of such claim, counterclaim, offset or chargeback); 

 
	
  

 	
  

 
	
  

 	
           (f)
 Credit Card Receivables as to which the processor has the right under certain
 circumstances to require a Loan Party to repurchase the Accounts from such
 credit card processor; 

 
	
  

 	
  

 
	
  

 	
           (g)
 Credit Card Receivables due from an issuer or payment processor of the
 applicable credit card which is the subject of any bankruptcy or insolvency
 proceedings;

 
	
  

 	
  

 
	
  

 	
           (h)
 Credit Card Receivables which are not a valid, legally enforceable obligation
 of the applicable issuer with respect thereto;

 
	
  

 	
  

 
	
  

 	
           (i)
 Credit Card Receivables which do not conform in all material respects to all
 representations, warranties or other provisions in the Loan Documents
 relating to Credit Card Receivables; 

 
	
  

 	
  

 
	
  

 	
           (j)
 Credit Card Receivables which are evidenced by “chattel paper” or an
 “instrument” of any kind unless such “chattel paper” or “instrument” is in
 the possession of the Collateral Agent, and to the extent necessary or
 appropriate, endorsed to the Collateral Agent; or

 
	
  

 	
  

 
	
  

 	
           (k)
 Credit Card Receivables which the Administrative Agent determines in its
 discretion to be uncertain of collection due to a material adverse change in
 the financial condition of a credit card payment processor and/or credit card
 issuer.

 


          “Eligible
Inventory” means, as of the date of determination thereof, without duplication,
items of Inventory of a Loan Party that are finished goods, merchantable and
readily saleable to the public in the ordinary course deemed by the
Administrative Agent in its Permitted Discretion to be eligible for inclusion
in the calculation of the Borrowing Base, in each case that, except as
otherwise agreed by the Administrative Agent, complies in all material respects
with each of the representations and warranties respecting Inventory made by
the Loan Parties in the Loan Documents, and that is not excluded as ineligible
by virtue of one or more of the criteria set forth below. Except as otherwise
agreed by the Administrative Agent, the following items of Inventory shall not
be included in Eligible Inventory:


-13-





EXECUTION VERSION


	
  

 	
  

 
	
  

 	
           (a)
 Inventory that is not solely owned by a Loan Party or a Loan Party does not
 have good and valid title thereto;

 
	
  

 	
  

 
	
  

 	
           (b)
 Inventory that is leased by or is on consignment to a Loan Party or which is
 consigned by a Loan Party to a Person which is not a Loan Party;

 
	
  

 	
  

 
	
  

 	
           (c)
 Inventory (including, without limitation, In-Transit Inventory except to the
 extent set forth in clause (d) below) that is not located in the United
 States of America (excluding territories or possessions of the United States)
 at a location that is owned or leased by a Loan Party, except to the extent
 that (i) the Loan Parties have furnished the Administrative Agent with any
 UCC financing statements or other documents that the Administrative Agent
 reasonably determines to be necessary to perfect its security interest in
 such Inventory at such location, and (ii) if requested by the Collateral
 Agent, the Loan Parties have used commercially reasonable efforts to cause
 the Person owning any such location to enter into a Collateral Access
 Agreement on terms reasonably satisfactory to the Collateral Agent;

 
	
  

 	
  

 
	
  

 	
           (d)
 In-Transit Inventory until such time as the Administrative Agent is
 satisfied, in its reasonable discretion, with the Loan Parties’ reporting
 practices with respect to such Inventory and deems such Inventory as Eligible
 Inventory hereunder;

 
	
  

 	
  

 
	
  

 	
           (e)
 Inventory that is located in a distribution center leased by a Loan Party
 unless (i) the applicable lessor has delivered to the Collateral Agent, if
 requested by the Collateral Agent, a Collateral Access Agreement, or (ii)
 such Inventory is located at a distribution center where the aggregate book
 value of Inventory at such location is less than $5,000,000;

 
	
  

 	
  

 
	
  

 	
           (f)
 Inventory of the Loan Parties in trailers but not processed at month-end and
 early receipts for non-quarter-end months;

 
	
  

 	
  

 
	
  

 	
           (g)
 Inventory that is comprised of goods which (i) are damaged, defective, or
 “seconds,” (ii) are to be returned to the vendor, (iii) are obsolete or slow
 moving, or custom items, work-in-process, raw materials, or that constitute
 spare parts, promotional, marketing, samples, labels, bags, packaging and
 shipping materials or supplies used or consumed in a Loan Party’s business,
 (iv) are seasonal in nature and which have been packed away for sale in the
 subsequent season, (v) are layaway merchandise, (vi) are not in compliance in
 all material respects with all standards imposed by any Governmental
 Authority having regulatory authority over such Inventory, or its use or
 sale, or (vi) are bill and hold goods;

 
	
  

 	
  

 
	
  

 	
           (h)
 Inventory that is not subject to a perfected first-priority security interest
 in favor of the Collateral Agent (other than Permitted Encumbrances having
 priority over the Lien of the Collateral Agent under applicable Law);

 
	
  

 	
  

 
	
  

 	
           (i)
 Inventory that is not insured in compliance with the provisions of Section
 6.07 hereof;

 
	
  

 	
  

 
	
  

 	
           (j)
 Inventory that has been sold but not yet delivered or as to which a Loan
 Party has accepted a deposit;

 
	
  

 	
  

 
	
  

 	
           (k)
 Inventory to be sold pursuant to the Loan Parties’ catalogue and internet
 business; 

 


-14-





EXECUTION VERSION


	
  

 	
  

 
	
  

 	
           (l)
 Inventory that is subject to any licensing, patent, royalty, trademark, trade
 name or copyright agreement with any third party from which any Loan Party or
 any of its Subsidiaries has received written notice of a dispute in respect
 of any such agreement; or

 
	
  

 	
  

 
	
  

 	
           (m)
 Inventory acquired in a Permitted Acquisition, unless and until the
 Collateral Agent has completed or received (A) an appraisal of such Inventory
 from appraisers satisfactory to the Collateral Agent, establishes an advance
 rate and Inventory Reserves (if applicable) therefor, and (B) such other due
 diligence as the Agents may require, all of the results of the foregoing to
 be reasonably satisfactory to the Agents.

 


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


          “Environmental
Liability” means any liability, obligation, damage, loss, claim, action, suit,
judgment, order, fine, penalty, fee, expense, or cost, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of
their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal or presence of any Hazardous
Materials, (c) exposure to any Hazardous Materials, or (d) the release or
threatened release of any Hazardous Materials into the environment.


          “Equipment”
has the meaning specified in the Security Agreement.


          “Equity
Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests
in) such Person, all of the securities convertible into or exchangeable for
shares of capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or acquisition from such
Person of such shares (or such other interests), and all of the other ownership
or profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting.


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


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


          “ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which such entity was a
“substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under Section 4041 or
4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan; (g) the determination that any Pension Plan is
considered an at-risk plan or a plan in endangered or critical status within
the meaning of Sections 430, 431 and 432 of the Code or 


-15-






EXECUTION VERSION


Sections 303, 304 and 305 of ERISA; or (h) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.


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


          “Excluded
Taxes” means any of the following Taxes imposed on or with respect to any
Recipient or required to be withheld or deducted from a payment to a Recipient:
(a) Taxes imposed on or measured by net income (however denominated), franchise
Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such
Recipient being organized under the laws of, or having its principal office or,
in the case of any Lender, its Lending Office located in, the jurisdiction
imposing such Tax (or any political subdivision thereof) or (ii) that are Other
Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes
imposed on amounts payable to or for the account of such Lender with respect to
an applicable interest in a Loan or Commitment pursuant to a law in effect on
the date on which (i) such Lender acquires such interest in the Loan or
Commitment (other than pursuant to an assignment request by the Borrower under
Section 10.13) or (ii) such Lender changes its Lending Office, except in each
case to the extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with
respect to such Taxes were payable either to such Lender’s assignor immediately
before such Lender became a party hereto or to such Lender immediately before
it changed its Lending Office, (c) Taxes attributable to such Recipient’s
failure to comply with Section 3.01(e) and (d) any U.S. federal withholding
Taxes imposed pursuant to FATCA.


          “Executive
Order” has the meaning specified in Section 10.18.


          “Existing
Credit Agreement” has the meaning specified in the preamble hereto.


          “Existing
Letters of Credit” means all Letters of Credit as defined in, and issued under,
the Existing Credit Agreement.


          “Extraordinary
Receipt” means any cash received by or paid to or for the account of any
Person not in the ordinary course of business, including tax refunds, pension
plan reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute compensation for
lost earnings), condemnation awards (and payments in lieu thereof), indemnity
payments and any purchase price adjustments. 


          “Facility
Guaranty” means the Guaranty dated of the Closing Date made by the Guarantors
in favor of the Agents and the other Credit Parties.


          “FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not
materially more onerous to comply with) and any current or future regulations
or official interpretations thereof.


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


-16-





EXECUTION VERSION


          “Fee
Letter” means the letter agreement, dated December 15, 2011, among the
Borrower, the Administrative Agent and MLPFS.


          “Fiscal
Month” means any fiscal month of any Fiscal Year, which month shall generally
end on the last day of each calendar month in accordance with the fiscal
accounting calendar of the Loan Parties.


          “Fiscal
Quarter” means any fiscal quarter of any Fiscal Year, which quarters shall
generally end on the last day of each April, July, October and January of such
Fiscal Year in accordance with the fiscal accounting calendar of the Loan
Parties.


          “Fiscal
Year” means any period of twelve consecutive months ending on the Saturday
closest to the last day in January of any year.


          “Foreign
Asset Control Regulations” has the meaning specified in Section 10.18.


          “Foreign
Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower 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.


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


          “Fronting
Exposure” means, at any time there is a Defaulting Lender, (a) with respect to
the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the
outstanding L/C Obligations other than L/C Obligations as to which such
Defaulting Lender’s participation obligation has been reallocated to other
Lenders or Cash Collateralized in accordance with the terms hereof, and (b)
with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders in
accordance with the terms hereof.


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


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


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


          “Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness
or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or 


-17-





EXECUTION VERSION


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


          “Guarantor”
means each Subsidiary of the Borrower (other than an Immaterial Subsidiary,
Footlocker.com, Inc., Eastbay, Inc., CCS Direct LLC, Foot Locker Australia,
Inc., Foot Locker New Zealand, Inc. and any CFC) set forth on Schedule 1.01
hereto and each other Subsidiary of the Borrower that shall be required to
execute and deliver a Facility Guaranty pursuant to Section 6.12. 


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


          “Honor
Date” has the meaning specified in Section 2.03(c)(i).


          “Immaterial
Subsidiary” means those Persons specified on Schedule 1.02 hereto and
each other Subsidiary of the Borrower that has been designated by the Borrower
in writing to the Administrative Agent as an “Immaterial Subsidiary” for
purposes of this Agreement and the other Loan Documents, provided that
for purposes of this Agreement, at no time shall (i) the total assets of all
Immaterial Subsidiaries, as of the end of the most recent Fiscal Quarter for
which financial statements have been delivered pursuant to Section 6.01(a) or
6.01(b) hereof, equal or exceed five percent (5%) of the Consolidated total
assets of the Borrower and its Subsidiaries (and in the event that the total
assets of all Immaterial Subsidiaries as tested at the end of any Fiscal
Quarter exceed five percent (5%) of the Consolidated total assets of the
Borrower and its Subsidiaries, such Subsidiaries shall no longer be deemed to
be Immaterial Subsidiaries and the Borrower shall cause such Subsidiaries to
become Loan Parties as set forth in Section 6.12 hereof), or (ii) the gross
revenues of all Immaterial Subsidiaries for any Measurement Period equal or
exceed five percent (5%) of the Consolidated gross revenues of the Borrower and
its Subsidiaries for such Measurement Period, in each case as determined in
accordance with GAAP. For clarity, no Loan Party shall at any time be deemed to
be an Immaterial Subsidiary.


          “Increase
Effective Date” has the meaning specified in Section 2.15(d).


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


	
  

 	
  

 
	
  

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

 


-18-





EXECUTION VERSION


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (d) all
 obligations of such Person to pay the deferred purchase price of property or
 services (other than trade accounts payable in the ordinary course of
 business and, in each case, not past due for more than 60 days after the date
 on which such trade account payable was created);

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (f) all
 Attributable Indebtedness of such Person;

 
	
  

 	
  

 
	
  

 	
           (g) all
 obligations of such Person with respect to Disqualified Stock valued, in the
 case of a redeemable preferred interest, at the greater of its voluntary or
 involuntary liquidation preference plus accrued and unpaid dividends;
 and

 
	
  

 	
  

 
	
  

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

 


          For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which such Person is a general
partner or a joint venture (but only to the extent of the Indebtedness of such
partnership or joint venture for which such Person is liable), unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any
net obligation under any Swap Contract on any date shall be deemed to be the
Swap Termination Value thereof as of such date.


          “Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect
to any payment made by or on account of any obligation of any Loan Party under
any Loan Document and (b) to the extent not otherwise described in (a), Other
Taxes.


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


          “Indenture”
means that certain Indenture dated as of October 10, 1991 by Woolworth
Corporation, as predecessor in interest to the Borrower, to The Bank of New
York, as Trustee, as in effect on the Effective Date.


          “Information”
has the meaning specified in Section 10.07.


          “Intellectual
Property” means all intellectual property, including, without limitation, all
trade secrets, know-how and other proprietary information; trademarks,
trademark applications, internet domain names, service marks, trade dress,
trade names, business names, designs, logos, slogans and similar indicia of
source or origin, and all registrations or applications for registrations which
have heretofore been or may hereafter be issued thereon throughout the world;
copyrights, copyright registrations and copyright applications (including
copyrights in computer programs); unpatented inventions (whether or not
patentable); patents and patent applications; industrial design applications
and registered industrial designs; any Loan Party’s rights in any license
agreements related to any of the 


-19-





EXECUTION VERSION


foregoing; intellectual property rights in books, records, writings,
computer tapes or disks, flow diagrams, specification sheets, computer
software, including source codes, object codes, executable code, data, databases
related thereto; and all common law and other rights throughout the world in
and to all of the foregoing.


          “Interest
Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last
day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a LIBOR Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning
of such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan (including a Swing Line Loan), the first Business Day of each
month and the Maturity Date.


          “Interest
Period” means, as to each LIBOR Rate Loan, the period commencing on the date
such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate
Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrower in its Committed Loan Notice, or, if available to all
of the Lenders, nine (9) or twelve (12) months as requested by the Borrower;
provided that:


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (ii) any
 Interest Period that begins on the last Business Day of a calendar month (or
 on a day for which there is no numerically corresponding day in the calendar
 month at the end of such Interest Period) shall end on the last Business Day
 of the calendar month at the end of such Interest Period; 

 
	
  

 	
  

 
	
  

 	
           (iii) no
 Interest Period shall extend beyond the Maturity Date; and 

 
	
  

 	
  

 
	
  

 	
           (iv)
 notwithstanding the provisions of clause (iii), no Interest Period shall have
 a duration of less than one (1) month, and if any Interest Period applicable
 to a LIBOR Borrowing would be for a shorter period, such Interest Period
 shall not be available hereunder. 

 
	
  

 	
  

 
	
 For purposes hereof, the date of a Borrowing initially shall be the
 date on which such Borrowing is made and thereafter shall be the effective
 date of the most recent conversion or continuation of such Borrowing.

 
	
  

 	
  

 
	
           “In-Transit
 Inventory” means, as of any date of determination thereof, Inventory:

 
	
  

 	
  

 
	
  

 	
           (a) Which
 has been shipped from a foreign location for receipt by a Loan Party, but
 which has not yet been delivered to such Loan Party, which Inventory has been
 in transit for sixty (60) days or less from the date of shipment of such
 Inventory;

 
	
  

 	
  

 
	
  

 	
           (b) For
 which the purchase order is in the name of a Loan Party and title has passed
 to such Loan Party;

 
	
  

 	
  

 
	
  

 	
           (c) For
 which the document of title reflects a Loan Party as consignee or, if requested
 by the Collateral Agent, names the Collateral Agent as consignee, and in each
 case as to which the Collateral Agent has control over the documents of title
 which evidence ownership of the subject Inventory (such as, if requested by
 the Collateral Agent, by the delivery of a Customs Broker Agreement); 

 


-20-







EXECUTION VERSION


	
  

 	
  

 	
  

 
	
  

 	
 (d) Which is insured to the reasonable satisfaction of the Collateral Agent; and 

 
	
  

 	
  

 	
  

 
	
  

 	
 (e) Which otherwise would constitute Eligible Inventory.

 


          “Inventory”
has the meaning given that term in the UCC, and shall also include, without limitation, all:
(a) goods which (i) are leased by a Person as lessor, (ii) are held by a Person
for sale or lease or to be furnished under a contract of service, (iii) are
furnished by a Person under a contract of service, or (iv) consist of raw
materials, work in process, or materials used or consumed in a business; (b)
goods of said description in transit; (c) goods of said description which are
returned, repossessed or rejected; and (d) packaging, advertising, and shipping
materials related to any of the foregoing.


          “Inventory
Reserves” means such reserves as may be established from time to time by the
Administrative Agent in the Administrative Agent’s Permitted Discretion with
respect to the determination of the saleability, at retail, of the Eligible
Inventory or which reflect such other factors as affect the market value of the
Eligible Inventory. Without limiting the generality of the foregoing, Inventory
Reserves may, in the Administrative Agent’s Permitted Discretion, include (but
are not limited to) reserves based on:


	
  

 	
  

 	
  

 
	
  

 	
 (a) Obsolescence; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (b) Seasonality; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (c) Shrink; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (d) Imbalance; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (e) Change in Inventory character; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (f) Change in Inventory composition;

 
	
  

 	
  

 	
  

 
	
  

 	
 (g) Change in Inventory mix; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (h) Mark-downs (both permanent and point of sale); and

 


           (i) Retail mark-ons and mark-ups inconsistent with prior period
 practice and performance, industry standards, current business plans or
 advertising calendar and planned advertising events.


          “Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition or
Equity Interests of another Person, (b) a loan, advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or interest in, another Person, (c) any Acquisition, or (d) any
acquisition of Store locations of any Person for which the aggregate
consideration payable in connection with such acquisition is greater than
$25,000,000, in each case in any transaction or group of transactions which are
part of a common plan. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.


          “IRS” means
the United States Internal Revenue Service.


-21-






EXECUTION VERSION

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


          “Issuer
Documents” means with respect to any Letter of Credit, the Letter Credit
Application, and any other document, agreement and instrument entered into by
the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C Issuer
and relating to any such Letter of Credit.


          “Joinder
Agreement” means an agreement in the form attached hereto as Exhibit I pursuant
to which a Person becomes a party to, and bound by the terms of, this Agreement
and/or the other applicable Loan Documents in the same capacity and to the same
extent as either a Borrower or Guarantor, as applicable.


          “Landlord
Lien State” means a state in which a landlord’s claim for rent has priority
over the lien of the Collateral Agent in any of the Collateral.


          “Laws”
means each international, foreign, federal, state and local statute, treaty,
rule, guideline, regulation, ordinance, code and administrative or judicial
precedent or authority, including the interpretation or administration thereof
by any Governmental Authority charged with the enforcement, interpretation or
administration thereof, and each applicable administrative order, directed
duty, license, authorization and permit of, and agreement with, any
Governmental Authority, in each case whether or not having the force of law.


          “L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable
Percentage.


          “L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or refinanced
as a Committed Borrowing.


          “L/C Credit
Extension” means, with respect to any Letter of Credit, the issuance thereof or
extension of the expiry date thereof, or the increase of the amount thereof.


          “L/C
Issuer” means (a) Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder (which
successor may only be a Lender selected by the Administrative Agent in its
reasonable discretion), and (b) any other Lender selected by the Administrative
Agent in its discretion and consented to by such Lender. The L/C Issuer may, in
its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the L/C Issuer, in which case the term “L/C Issuer” shall include
any such Affiliate with respect to Letters of Credit issued by such Affiliate.


          “L/C
Obligations” means, as at any date of determination, and without duplication,
the aggregate undrawn amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings. For purposes of computing the amounts available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. 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 any Rule
under the ISP or any Article of UCP 600, such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn.


          “Lease”
means any written agreement pursuant to which a Loan Party is entitled to the
use or occupancy of any real property for any period of time.


-22-





EXECUTION VERSION

          “Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.


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


          “Letter of
Credit” means each Standby Letter of Credit and each Commercial Letter of
Credit issued hereunder and shall include the Existing Letters of Credit.


          “Letter of
Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.


          “Letter of
Credit Expiration Date” means the day that is seven days prior to the Maturity
Date then in effect (or, if such day is not a Business Day, the next preceding
Business Day).


          “Letter of
Credit Fee” has the meaning specified in Section 2.03(i).


          “Letter of
Credit Sublimit” means an amount equal to $80,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments. A
permanent reduction of the Aggregate Commitments shall not require a
corresponding pro rata reduction in the Letter of Credit Sublimit; provided,
however, that if the Aggregate Commitments are reduced to an amount less
than the Letter of Credit Sublimit, then the Letter of Credit Sublimit shall be
reduced to an amount equal to (or, at Borrower’s option, less than) the
Aggregate Commitments.


          “LIBOR
Borrowing” means a Borrowing comprised of LIBOR Rate Loans.


          “LIBOR
Rate” means for any Interest Period with respect to a LIBOR Rate Loan, the rate
per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the
“LIBOR Rate” for such Interest Period shall be the rate per annum determined by
the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the LIBOR Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.


          “LIBOR Rate
Loan” means a Committed Loan that bears interest at a rate based on the
Adjusted LIBOR Rate.


          “Lien” means
(a) any mortgage, deed of trust, pledge, hypothecation, assignment for
security, encumbrance, lien (statutory or other), or other security interest or
preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale, Capital Lease Obligation,
Synthetic Lease Obligation, or other title retention agreement, any easement,
right of way or other encumbrance on title to real property, and any financing
lease having substantially the same economic effect as any of the foregoing)
and (b) in the case of securities, any purchase option, call or similar right
of a third party with respect to such securities.


-23-





EXECUTION VERSION

          “Liquidation”
means the exercise by the Administrative Agent or Collateral Agent of those
rights and remedies accorded to such Agents under the Loan Documents and
applicable Law as a creditor of the Loan Parties with respect to the
realization on the Collateral, including (after the occurrence and during the
continuation of an Event of Default) the conduct by the Loan Parties acting
with the consent of the Administrative Agent, of any public, private or
“going-out-of-business”, “store closing” or other similar sale or any other
disposition of the Collateral for the purpose of liquidating the Collateral.
Derivations of the word “Liquidation” (such as “Liquidate”) are used with like
meaning in this Agreement. 


          “Loan”
means an extension of credit by a Lender to the Borrower under Article II in
the form of a Committed Loan or a Swing Line Loan.


          “Loan
Account” has the meaning specified in Section 2.11(a).


          “Loan Cap”
means, at any time of determination, the lesser of (a) the Aggregate
Commitments and (b) the Borrowing Base.


          “Loan
Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letter, all Borrowing Base Certificates, the Blocked Account Agreements, the
Credit Card Notifications, the Security Documents, the Facility Guaranty, and
any other instrument or agreement now or hereafter executed and delivered in
connection herewith, each as amended and in effect from time to time. 


          “Loan
Parties” means, collectively, the Borrower and each Guarantor.


          “Material
Adverse Effect” means (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, liabilities, or financial
condition of the Loan Parties taken as a whole or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Loan Parties to perform their obligations under the Loan Documents; or (c) a
material impairment of the rights and remedies of the Agent or the Lenders
under any Loan Document or a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.


          “Material
Indebtedness” means (a) Indebtedness (other than the Obligations and Other
Liabilities) of the Loan Parties in an aggregate principal amount exceeding
$25,000,000 and (b) Indebtedness pursuant to the Indenture. For purposes of
determining the amount of Material Indebtedness at any time, the amount of the
obligations in respect of any Swap Contract at such time shall be calculated at
the Swap Termination Value thereof.


          “Maturity
Date” means January 27, 2017.


          “Maximum
Rate” has the meaning specified in Section 10.09.


          “Measurement
Period” means, at any date of determination, the most recently completed twelve
(12) months.


          “Minimum
Inventory Level” means, at any time of calculation, Eligible Inventory, the
Cost of which net of Inventory Reserves, multiplied by the Appraised Value of
Eligible Inventory is at least equal to two times the then Aggregate
Commitments.


          “MLPFS”
means Merrill Lynch, Pierce, Fenner & Smith Incorporated.


-24-







EXECUTION VERSION

          “Monthly
Accelerated Borrowing Base Delivery Event” means either (a) the occurrence and
continuance of any Event of Default other than a Specified Event of Default, or
(b) the Total Outstandings exceed the Threshold Amount. For purposes of this
Agreement, the occurrence of a Monthly Accelerated Borrowing Base Delivery
Event shall be deemed continuing (i) so long as such Event of Default other
than a Specified Event of Default is continuing and/or (ii) if the Monthly
Accelerated Borrowing Base Delivery Event arises as a result of the Total
Outstandings exceeding the Threshold Amount, until the Total Outstandings are
equal to or less than the Threshold Amount for sixty (60) consecutive calendar
days, in which case a Monthly Accelerated Borrowing Base Delivery Event shall
no longer be deemed to be continuing for purposes of this Agreement. The
termination of a Monthly Accelerated Borrowing Base Delivery Event as provided
herein shall in no way limit, waive or delay the occurrence of a subsequent
Monthly Accelerated Borrowing Base Delivery Event in the event that the
conditions set forth in this definition again arise.


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


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


          “Multiple
Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not
under common control, as such a plan is described in Section 4064 of ERISA.


          “Net
Proceeds” means with respect to any Disposition by any Loan Party or any of its Subsidiaries, or any Extraordinary
Receipt received or paid to the account of any Loan Party or any of its Subsidiaries, the excess, if any, of
(i) the sum of cash and cash equivalents received in connection with such
transaction (including any cash or cash equivalents received by way of deferred
payment pursuant to, or by monetization of, a note receivable or otherwise, but
only as and when so received) over (ii) the sum of (A) the principal amount of
any Indebtedness that is secured by the applicable asset by a Lien permitted
hereunder which is senior to the Collateral Agent’s Lien on such asset and that
is required to be repaid (or to establish an escrow for the future repayment
thereof) in connection with such transaction (other than Indebtedness under the
Loan Documents), plus (B) the reasonable and customary out-of-pocket
fees and expenses incurred by such Loan
Party or such Subsidiary in connection with such transaction (including,
without limitation, appraisals, and brokerage, legal, title and recording or
transfer tax expenses and commissions) paid by any Loan Party to third parties
(other than Affiliates)), plus (C) amounts provided as a funded reserve
against any liabilities under any indemnification obligation or purchase price
adjustment associated with such Disposition (provided that to the extent
and at the time any such amounts are released from such reserve, such amounts
shall constitute Net Proceeds).


          “Non-Consenting
Lender” has the meaning specified in Section 10.01.


          “Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at such
time.


          “Non-Extension
Notice Date” has the meaning specified in Section 2.03(b)(iii).


          “Note”
means (a) a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit
C-1, and (b) the Swing Line Note, as each may be amended, supplemented or
modified from time to time.


          “NPL” means
the National Priorities List under CERCLA.


-25-





EXECUTION VERSION

          “Obligations”
means all advances to, and debts (including principal, interest, fees, costs,
and expenses), liabilities, covenants, and indemnities of, any Loan Party
arising under any Loan Document or otherwise with respect to any Loan or Letter
of Credit (including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral therefor), whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest, fees, cost and expenses that accrue after the commencement
by or against any Loan Party or any Subsidiary thereof of any proceeding under
any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest, fees, costs and expenses are allowed
claims in such proceeding.


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


          “Other
Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the
jurisdiction imposing such Tax (other than connections arising from such
Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any
Loan Document, or sold or assigned an interest in any Loan or Loan Document).


          “Other
Liabilities” means any obligation on account of (a) any Cash Management
Services furnished to any of the Loan Parties or any of their Subsidiaries
and/or (b) any transaction which arises out of any Bank Product entered into
with any Loan Party, as each may be amended from time to time, and/or (c) any
transaction between a Subsidiary which is not a Loan Party and any Lender or
any Affiliate of a Lender, to the extent the obligations of such Subsidiary are
guaranteed by a Loan Party.


          “Other
Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant
to Section 3.06).


          “Outstanding
Amount” means (i) with respect to Committed Loans and Swing Line Loans on any
date, the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of Committed Loans and Swing Line
Loans, as the case may be, occurring on such date; and (ii) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.


          “Overadvance”
means a Credit Extension to the extent that, immediately after its having been
made, Availability is less than zero.


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


-26-





EXECUTION VERSION

          “Payment
Conditions” means, at the time of determination with respect to any specified
transaction or payment, that (a) no Default or Event of Default then exists or
would arise as a result of entering into such transaction or the making of such
payment, and (b) after giving effect to such transaction or payment, the Pro
Forma Availability Condition has been satisfied. Prior to undertaking any
transaction or payment which is subject to the Payment Conditions, the Loan
Parties shall deliver to the Administrative Agent evidence of satisfaction of
the conditions contained in clause (b) above on a basis (including, without
limitation, giving due consideration to results for prior periods) reasonably
satisfactory to the Administrative Agent.


          “PBGC”
means the Pension Benefit Guaranty Corporation.


          “PCAOB”
means the Public Company Accounting Oversight Board.


          “Pension
Act” means the Pension Protection Act of 2006.


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


          “Pension
Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the
Borrower and any ERISA Affiliate and is covered by Title IV of ERISA.


          “Pension
Property Purchases” means, collectively, the Brooklyn Property Purchase and the
Union City Purchase and, individually, either one of them.


          “Permitted
Acquisition” means an Acquisition in which all of the following conditions are
satisfied:


	
  

 	
  

 
	
  

 	
           (a) any
 assets acquired shall be utilized in, and if the Acquisition involves a
 merger, consolidation or stock acquisition, the Person which is the subject
 of such Acquisition shall be engaged in, a business otherwise permitted to be
 engaged in by a Loan Party under this Agreement;

 
	
  

 	
  

 
	
  

 	
           (b) the
 Loan Parties shall have satisfied the Payment Conditions; and

 
	
  

 	
  

 
	
  

 	
           (c) if
 any Loans are then outstanding under this Agreement or if any proceeds of the
 Loans shall be used to consummate such Acquisition:

 
	
  

 	
  

 
	
  

 	
                     (i)
 such Acquisition shall have been approved by the Board of Directors of the Person
 (or similar governing body if such Person is not a corporation) which is the
 subject of such Acquisition and such Person shall not have announced that it
 will oppose such Acquisition or shall not have commenced any action which
 alleges that such Acquisition shall violate applicable Law;

 
	
  

 	
  

 
	
  

 	
                     (ii)
 the Borrower shall have furnished the Administrative Agent with at least
 fifteen (15) days’ prior written notice (or such shorter period as the
 Administrative Agent shall agree) of such intended Acquisition and shall have
 furnished the Administrative Agent with a current draft of the primary
 acquisition documents (and final copies thereof as and when 

 


-27-





EXECUTION VERSION




	
  

 	
  

 
	
  

 	
 executed), a summary of any due diligence undertaken by the Loan
 Parties in connection with such Acquisition, and, to the extent requested by
 the Administrative Agent, appropriate financial statements of the Person
 which is the subject of such Acquisition for such periods as the
 Administrative Agent shall reasonably request (individually, and on a
 Consolidated basis with all Loan Parties), and such other information as the
 Administrative Agent may reasonably require, all of which shall be reasonably
 satisfactory to the Administrative Agent;

 
	
  

 	
  

 
	
  

 	
                     (iii)
 the legal structure of the Acquisition shall be acceptable to the
 Administrative Agent in its Permitted Discretion; and

 
	
  

 	
  

 
	
  

 	
                     (iv)
 after giving effect to the Acquisition, if the Acquisition is an Acquisition
 of the Equity Interests, a Loan Party shall acquire and own, directly or
 indirectly, a majority of the Equity Interests in the Person being acquired
 and shall Control a majority of any voting interests or shall otherwise
 Control the governance of the Person being acquired. 

 


          “Permitted Discretion”
means a determination made by the Administrative Agent in good faith and in the
exercise of its reasonable credit judgment determined in a manner consistent
with its credit procedures for asset based lending transactions in similar
circumstances.


	
  

 	
  

 
	
  

 	
 “Permitted Disposition” means any of the following:

 
	
  

 	
  

 
	
  

 	
           (a)
 Dispositions of Inventory in the ordinary course of business;

 
	
  

 	
  

 
	
  

 	
           (b) as
 long as no Event of Default exists or would arise therefrom, bulk sales or
 other Dispositions of the Inventory and Equipment of a Loan Party or any
 Subsidiary not in the ordinary course of business in connection with Store
 closings or relocations, at arm’s length, provided, that the Minimum
 Inventory Level is satisfied after giving effect thereto;

 
	
  

 	
  

 
	
  

 	
           (c)
 Dispositions of Equipment and other assets (other than Inventory but
 including the abandonment of Intellectual Property) in the ordinary course of
 business that is substantially worn, damaged, obsolete or, in the judgment of
 a Loan Party, no longer useful or necessary in its business or that of any
 Subsidiary;

 
	
  

 	
  

 
	
  

 	
           (d)
 Dispositions among the Loan Parties or by any Subsidiary to a Loan Party; 

 
	
  

 	
  

 
	
  

 	
           (e)
 Dispositions by any Subsidiary which is not a Loan Party to another Subsidiary
 that is not a Loan Party;

 
	
  

 	
  

 
	
  

 	
           (f)
 Dispositions of any Equity Interests in Loan Parties or any other Subsidiary
 that is not a Loan Party to any other Subsidiary which is not a Loan Party, provided
 that any Loan Party, the Equity Interests of which are transferred pursuant
 to any Disposition permitted pursuant to this clause (f), shall remain a Loan
 Party hereunder;

 
	
  

 	
  

 
	
  

 	
           (g)
 Dispositions of any Indebtedness owed to a Loan Party by another Loan Party
 or any other Subsidiary that is not a Loan Party to any other Subsidiary that
 is not a Loan Party, provided that after giving effect to such
 transfer, such Indebtedness would otherwise be permitted under clause (b)(iv)
 of Permitted Indebtedness; 

 
	
  

 	
  

 
	
  

 	
           (h) as
 long as no Default then exists or would arise therefrom, Dispositions of Real
 Estate of any Loan Party or any Subsidiary (or sales of any Person or Persons
 created to hold such Real Estate or the Equity Interests in such Person or
 Persons), including sale-leaseback

 


-28-






EXECUTION VERSION

	
  

 	
  

 
	
  

 	
 transactions involving any such Real Estate pursuant to leases on
 market terms, as long as, (A) such Disposition is made for fair market value,
 and (B) in the case of any sale-leaseback transaction permitted hereunder,
 such Loan Party or Subsidiary shall use commercially reasonable efforts to
 cause, if requested by the Agents, each purchaser or transferee to enter into
 a Collateral Access Agreement on terms and conditions reasonably satisfactory
 to the Agents;

 
	
  

 	
  

 
	
  

 	
           (i)
 Dispositions consisting of the compromise, settlement or collection of
 accounts receivable in the ordinary course of business, consistent with past
 practices;

 
	
  

 	
  

 
	
  

 	
           (j)
 leases, subleases, space leases, licenses or sublicenses, in each case in the
 ordinary course of business and which do not materially interfere with the
 business of the Borrower and its Subsidiaries, including licenses for the
 conduct of licensed departments within the Loan Parties’ Stores in the
 ordinary course of business; provided that, if requested by the
 Agents, the Agents shall have entered into an intercreditor agreement with
 the Person operating such licensed department on terms and conditions
 reasonably satisfactory to the Agents;

 
	
  

 	
  

 
	
  

 	
           (k)
 Dispositions of cash, cash equivalents and Permitted Investments described in
 clauses (a) through (e) of the definition of “Permitted Investments”
 contained in this Agreement, in each case on ordinary business terms;

 
	
  

 	
  

 
	
  

 	
           (l) other
 Dispositions, provided that the aggregate fair market value of all
 assets Disposed of in reliance upon this paragraph (l) shall not exceed
 $10,000,000 during any Fiscal Year of the Borrower; and

 
	
  

 	
  

 
	
  

 	
           (m) other
 Dispositions not described in clauses (a) through (l) above so long as the
 Payment Conditions are satisfied.

 
	
  

 	
  

 
	
  

 	
           For the
 avoidance of doubt, transactions which are permitted by Sections 7.01 and
 7.02 of this Agreement which may be construed to constitute a “Disposition”
 of property by a Loan Party or any of its Subsidiaries shall not be prohibited
 by operation of Section 7.05.

 
	
  

 	
  

 
	
  

 	
  “Permitted Encumbrances”
 means:

 
	
  

 	
  

 
	
  

 	
           (a) Liens
 imposed by law for Taxes that are not yet due or are being contested in
 compliance with Section 6.04;

 
	
  

 	
  

 
	
  

 	
           (b)
 carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other
 like Liens imposed by applicable Law, arising in the ordinary course of
 business and securing obligations that are not overdue by more than thirty
 (30) days or are being contested in compliance with Section 6.04;

 
	
  

 	
  

 
	
  

 	
           (c)
 pledges and deposits made in the ordinary course of business in compliance
 with workers’ compensation, unemployment insurance and other social security
 or similar laws or regulations, other than any Lien imposed by ERISA;

 
	
  

 	
  

 
	
  

 	
           (d)
 deposits to secure the performance of bids, trade contracts, government
 contracts and leases (other than Indebtedness), statutory obligations,
 surety, stay, customs and appeal bonds, performance bonds and other
 obligations of a like nature (including those to secure health, safety and
 environmental obligations) incurred in the ordinary course of business; 

 


-29-






EXECUTION VERSION

	
  

 	
  

 
	
  

 	
           (e) Liens
 in respect of judgments, decrees, attachments or awards for payment of money
 that do not constitute an Event of Default hereunder;

 
	
  

 	
  

 
	
  

 	
           (f)
 easements, covenants, conditions, restrictions, building code laws, zoning
 restrictions, encroachments, rights-of-way and similar encumbrances on real
 property imposed by law or arising in the ordinary course of business that do
 not secure any monetary obligations and do not materially interfere with the
 ordinary conduct of business of the Loan Parties, taken as a whole, and such
 other minor title defects or survey matters that are disclosed by current
 surveys that, in each case, do not materially interfere with the ordinary
 conduct of business of the Loan Parties, taken as a whole;

 
	
  

 	
  

 
	
  

 	
           (g) Liens
 existing on the date hereof and listed on Schedule 7.01 and any
 renewals or extensions thereof, provided that (i) the property covered
 thereby is not changed other than after acquired property affixed or
 incorporated thereto and proceeds or products thereof, (ii) the amount
 secured or benefited thereby is not increased except to the extent permitted
 hereunder, and (iii) any renewal or extension of the obligations secured or
 benefited thereby is otherwise permitted hereunder;

 
	
  

 	
  

 
	
  

 	
           (h) Liens
 on fixed or capital assets acquired by any Loan Party or any Subsidiary which
 are permitted under clause (c) of the definition of Permitted Indebtedness so
 long as (i) such Liens and the Indebtedness secured thereby are incurred
 prior to or within one hundred and eighty (180) days after such acquisition,
 (ii) the Indebtedness secured thereby does not exceed the cost of acquisition
 of such fixed or capital assets and (iii) such Liens shall not extend to
 any other property or assets of the Loan Parties;

 
	
  

 	
  

 
	
  

 	
           (i) Liens
 created pursuant to any Loan Document;

 
	
  

 	
  

 
	
  

 	
           (j)
 landlords’ and lessors’ Liens in respect of rent not in default;

 
	
  

 	
  

 
	
  

 	
           (k)
 possessory Liens in favor of brokers and dealers arising in connection with
 the acquisition or disposition of Investments owned as of the date hereof and
 Permitted Investments, provided that such liens (a) attach only to such
 Investments and (b) secure only obligations incurred in the ordinary course
 and arising in connection with the acquisition or disposition of such
 Investments and not any obligation in connection with margin financing; 

 
	
  

 	
  

 
	
  

 	
           (l) Liens
 arising solely by virtue of any statutory or common law provisions relating
 to banker’s liens, liens in favor of securities intermediaries, rights of
 setoff or similar rights and remedies as to deposit accounts or securities
 accounts or other funds maintained with depository institutions or securities
 intermediaries;

 
	
  

 	
  

 
	
  

 	
           (m) Liens
 arising from precautionary UCC filings regarding “true” operating leases or,
 to the extent permitted under the Loan Documents, the consignment of goods to
 a Loan Party;

 
	
  

 	
  

 
	
  

 	
           (n)
 voluntary Liens on property (other than property of the type included in the
 Borrowing Base) in existence at the time such property is acquired pursuant
 to a Permitted Acquisition or other Permitted Investment or on such property
 of a Subsidiary of a Loan Party in existence at the time such Subsidiary is
 acquired pursuant to a Permitted Acquisition or other Permitted Investment; provided,
 that such Liens are not incurred in connection with or in anticipation of
 such Permitted Acquisition or other Permitted Investment and do not attach to
 any other assets of any Loan Party or any Subsidiary;

 


-30-






EXECUTION VERSION

	
  

 	
  

 
	
  

 	
           (o) Liens
 in favor of customs and revenues authorities imposed by applicable Law
 arising in the ordinary course of business in connection with the importation
 of goods and securing obligations (i) that are not overdue by more than
 thirty (30) days, or (ii)(A) that are being contested in good faith by
 appropriate proceedings, (B) the applicable Loan Party or Subsidiary has set
 aside on its books adequate reserves with respect thereto in accordance with
 GAAP and (C) such contest effectively suspends collection of the contested
 obligation and enforcement of any Lien securing such obligation;

 
	
  

 	
  

 
	
  

 	
           (p) Liens
 (i) on cash advances in favor of the seller of any property to be acquired in
 any Permitted Investment to be applied against the purchase price for such
 Investment, and (ii) consisting of an agreement to transfer any property in a
 Permitted Disposition, in each case, solely to the extent such Investment or
 Disposition, as the case may be, would have been permitted on the date of the
 creation of such Lien;

 
	
  

 	
  

 
	
  

 	
           (q) any
 interest or title of a lessor or sublessor under leases or subleases or
 secured by a lessor’s or sublessor’s interests under leases entered into by
 the Borrower or any of its Subsidiaries in the ordinary course of business;

 
	
  

 	
  

 
	
  

 	
           (r) Liens
 solely on any cash earnest money deposits made by the Borrower or any of its
 Subsidiaries in connection with any letter of intent or purchase agreement
 permitted hereunder;

 
	
  

 	
  

 
	
  

 	
           (s) Liens
 in respect of the licensing of patents, copyrights, trademarks, trade names,
 other indications of origin, domain names and other forms of Intellectual
 Property in the ordinary course of business;

 
	
  

 	
  

 
	
  

 	
           (t) Liens
 arising out of conditional sale, title retention, consignment or similar
 arrangements for sale of goods (including under Article 2 of the UCC) and
 Liens that are contractual rights of set-off relating to purchase orders and
 other similar agreements entered into by the Borrower or any of its
 Subsidiaries;

 
	
  

 	
  

 
	
  

 	
           (u) Liens
 on insurance policies and the proceeds thereof securing the financing of the
 premiums with respect thereto incurred in the ordinary course of business;

 
	
  

 	
  

 
	
  

 	
           (v) Liens
 on assets other than those of the type included in the Borrowing Base to
 secure Indebtedness permitted under clause (d) of “Permitted Indebtedness”; 

 
	
  

 	
  

 
	
  

 	
           (w) Liens
 on property of Domestic Subsidiaries which are not Loan Parties to secure
 Indebtedness permitted under clause (r) of the definition of “Permitted
 Indebtedness”; 

 
	
  

 	
  

 
	
  

 	
           (x)
 licenses or sublicenses, in each case in the ordinary course of business and
 which do not materially interfere with the business of the Borrower and its
 Subsidiaries; and

 
	
  

 	
  

 
	
  

 	
           (y) other
 Liens on assets other than those of the type included in the Borrowing Base
 securing obligations outstanding in an aggregate principal amount not to
 exceed $10,000,000.

 


 “Permitted Indebtedness” means
each of the following as long as no Event of Default exists or would arise from
the incurrence thereof:


	
  

 	
  

 
	
  

 	
           (a)
 Indebtedness outstanding on the date hereof and listed on Schedule 7.03
 and any refinancings, refundings, renewals or extensions thereof; provided
 that (i) the amount of such 

 


-31-





EXECUTION VERSION


Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to any premium or
other amount paid, and fees and expenses reasonably incurred, in each case on
then current market terms, in connection with such refinancing and by an amount
equal to any existing commitments unutilized thereunder, (ii) the result of
such extension, renewal or replacement shall not be an earlier maturity date or
decreased weighted average life of such Indebtedness, and (iii) the terms
relating to collateral (if any) and subordination (if any), of any such
refinancing, refunding, renewing or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith,
are not less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest
rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate;


          (b) Indebtedness of (i) any Loan Party to any other Loan Party, (ii)
any Subsidiary that is not a Loan Party to any Loan Party so long as the
Payment Conditions are satisfied, (iii) any Subsidiary that is not a Loan Party
to any other Subsidiary that is not a Loan Party, and (iv) any Loan Party to
any Subsidiary that is not a Loan Party in an aggregate principal amount not to
exceed $50,000,000 at any time outstanding unless the Payment Conditions are
satisfied (in which event such dollar limitation shall not apply);


          (c) Without duplication of Indebtedness described in clause (f) of this
definition, purchase money Indebtedness of any Loan Party or any Subsidiary
thereof to finance the acquisition of any fixed or capital assets, including
Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof provided that the terms relating to
collateral (if any) and subordination (if any), of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered
into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than the
terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate, provided that, if
requested by the Collateral Agent, the Loan Parties shall use commercially reasonable
efforts to cause the holders of such Indebtedness to enter into a Collateral
Access Agreement on terms reasonably satisfactory to the Collateral Agent;



	
  

 	
  

 
	
  

 	
           (d)
 obligations (contingent or otherwise) of any Loan Party or any Subsidiary
 thereof existing or arising under any Swap Contract, provided that
 such obligations are (or were) entered into by such Person in the ordinary
 course of business for the purpose of directly mitigating risks associated
 with fluctuations in interest rates, energy prices or foreign exchange rates,
 and not for purposes of speculation or taking a “market view;”;

 
	
  

 	
  

 
	
  

 	
           (e)
 Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety
 bonds, performance and completion guarantees and similar obligations, or
 obligations in respect of letters of credit, bank guarantees or similar
 instruments related thereto, in each case provided in the ordinary course of
 business; 

 
	
  

 	
  

 
	
  

 	
           (f)
 Indebtedness incurred for the construction or acquisition or improvement of,
 or to finance or to refinance, any Real Estate owned by any Loan Party or any
 Subsidiary (including 

 


-32-






EXECUTION VERSION

	
  

 	
  

 
	
  

 	
 therein any Indebtedness incurred in connection with sale-leaseback
 transactions permitted hereunder), provided that, upon the request
 of the Collateral Agent, the Loan Parties shall use commercially reasonable
 efforts to cause the holders of such Indebtedness to enter into a Collateral
 Access Agreement on terms reasonably satisfactory to the Collateral Agent;

 
	
  

 	
  

 
	
  

 	
           (g) Indebtedness
 with respect to the deferred purchase price for any Permitted Acquisition, provided
 that such Indebtedness is on terms reasonably acceptable to the Agents; 

 
	
  

 	
  

 
	
  

 	
           (h)
 Indebtedness of any Person that becomes a Subsidiary of a Loan Party in a
 Permitted Acquisition or other Permitted Investment, which Indebtedness is
 existing at the time such Person becomes a Subsidiary of a Loan Party (other
 than Indebtedness incurred solely in contemplation of such Person’s becoming
 a Subsidiary of a Loan Party);

 
	
  

 	
  

 
	
  

 	
           (i) the
 Obligations and Other Liabilities; 

 
	
  

 	
  

 
	
  

 	
           (j)
 Indebtedness consisting of Securities (as defined in the Indenture) issued
 pursuant to the Indenture;

 
	
  

 	
  

 
	
  

 	
           (k) (i)
 Indebtedness constituting indemnification obligations or obligations in
 respect of purchase price or other similar adjustments in connection with
 Permitted Acquisitions and other Permitted Investments and Permitted
 Dispositions; and (ii) Indebtedness consisting of obligations of the Borrower
 or any Subsidiary under deferred compensation or other similar arrangements
 incurred by such Person in connection with any Permitted Investment;

 
	
  

 	
  

 
	
  

 	
           (l)
 Indebtedness consisting of the financing of insurance premiums in the
 ordinary course of business;

 
	
  

 	
  

 
	
  

 	
           (m)
 Indebtedness in respect of netting services, overdraft protections and
 similar arrangements and related liabilities arising from treasury,
 depository and cash management services or any automated clearing house
 transfers of funds in the ordinary course of business (including, without
 limitation Guarantees of any such obligations of any Subsidiary which is not
 a Loan Party);

 
	
  

 	
  

 
	
  

 	
           (n)
 unsecured guaranty obligations of the Borrower or any of its Subsidiaries of
 the obligations of any joint ventures permitted under this Agreement in which
 the Borrower or any of its Subsidiaries is a party, not exceeding $10,000,000
 in the aggregate at any time outstanding;

 
	
  

 	
  

 
	
  

 	
           (p)
 Indebtedness representing deferred compensation to directors, officers and
 employees of the Borrower or any of its Subsidiaries incurred in the ordinary
 course of business;

 
	
  

 	
  

 
	
  

 	
           (q) to
 the extent constituting Indebtedness, judgments, decrees, attachments or
 awards not constituting an Event of Default under Section 8.01(h);

 
	
  

 	
  

 
	
  

 	
           (r)
 Indebtedness of any Domestic Subsidiary which is not a Loan Party; and 

 
	
  

 	
  

 
	
  

 	
           (s) other Indebtedness (not described in any other clause of this
 definition, as to which such clause shall govern the such Permitted Indebtedness
 and this clause (s) shall not be additive thereto) in an aggregate principal
 amount not to exceed $300,000,000 at any time outstanding; provided
 that not more than $50,000,000 of such Indebtedness may be secured.

 


-33-





EXECUTION VERSION

          “Permitted
Investments” means each of the following as long as no Event of Default exists
or would arise from the making of such Investment:


	
  

 	
  

 
	
  

 	
           (a)
 readily marketable obligations issued or directly and fully guaranteed or
 insured by the United States of America or any agency or instrumentality
 thereof having maturities of not more than one year from the date of
 acquisition thereof; provided
 that the full faith and credit of the United States of America is pledged in
 support thereof;

 
	
  

 	
  

 
	
  

 	
           (b)
 commercial paper issued by any Person organized under the laws of any state
 of the United States of America and rated, at the time of acquisition
 thereof, at least “Prime-2” (or the then equivalent grade) by Moody’s or
 at least “A-2” (or the then equivalent grade) by S&P, in each case
 with maturities of not more than one year from the date of acquisition
 thereof;

 
	
  

 	
  

 
	
  

 	
           (c) any
 Investments of the Loan Parties consisting of demand deposits or time
 deposits with, or insured certificates of deposit or bankers’ acceptances of,
 any commercial bank that (i) (A) is a Lender or (B) is organized under the
 laws of the United States of America, any state thereof or the District of
 Columbia or is the principal banking subsidiary of a bank holding company
 organized under the laws of the United States of America, any state thereof
 or the District of Columbia, and is a member of the Federal Reserve System,
 (ii) issues (or the parent of which issues) commercial paper rated, at the
 time of acquisition thereof, as described in clause (b) of this definition
 and (iii) has combined capital and surplus of at least $500,000,000, in
 each case with maturities of not more than one year from the date of
 acquisition thereof; 

 
	
  

 	
  

 
	
  

 	
           (d) fully
 collateralized repurchase agreements with a term of not more than thirty (30)
 days for securities described in clause (a) above (without regard to the
 limitation on maturity contained in such clause) and entered into with a
 financial institution satisfying the criteria, at the time of acquisition thereof,
 described in clause (c) above or with any primary dealer and having a market
 value at the time that such repurchase agreement is entered into of not less
 than 100% of the repurchase obligation of such counterparty entity with whom
 such repurchase agreement has been entered into; 

 
	
  

 	
  

 
	
  

 	
           (e)
 Investments, classified in accordance with GAAP as current assets of the Loan
 Parties, in any money market fund, mutual fund, or other investment companies
 that are registered under the Investment Company Act of 1940, as amended,
 which have the highest rating obtainable from either Moody’s or S&P, and
 which invest primarily in one or more of the types of securities described in
 clauses (a) through (d) above;

 
	
  

 	
  

 
	
  

 	
           (f)
 Investments existing on the Effective Date, and set forth on Schedule 7.02,
 but not any increase in the amount thereof;

 
	
  

 	
  

 
	
  

 	
           (g) (i)
 Investments by any Loan Party and its Subsidiaries in their respective
 Subsidiaries outstanding on the date hereof, (ii) additional Investments by
 any Loan Party and its Subsidiaries in Loan Parties, (iii) additional
 Investments by any Subsidiary that is not a Loan Party in any other
 Subsidiary that is not a Loan Party, and (iv) additional Investments by any
 Loan Party in any Subsidiary that is not a Loan Party so long as the Payment
 Conditions are satisfied;

 
	
  

 	
  

 
	
  

 	
           (h)
 Investments consisting of extensions of credit in the nature of accounts receivable
 or notes receivable arising from the grant of trade credit in the ordinary
 course of business, and Investments received in satisfaction or partial
 satisfaction thereof from financially troubled account debtors to the extent
 reasonably necessary in order to prevent or limit loss;

 


-34-






EXECUTION VERSION

	
  

 	
  

 
	
  

 	
           (i)
 Guarantees constituting Permitted Indebtedness;

 
	
  

 	
  

 
	
  

 	
           (j)
 Investments in Swap Contracts not prohibited hereunder;

 
	
  

 	
  

 
	
  

 	
           (k)
 Investments received in connection with the bankruptcy or reorganization of,
 or settlement of delinquent accounts and disputes with, customers and suppliers,
 in each case in the ordinary course of business; 

 
	
  

 	
  

 
	
  

 	
           (l)
 (i) advances of payroll payments to employees in the ordinary course of
 business and (ii) other loans and advances to officers, directors and
 employees of the Loan Parties and Subsidiaries in the ordinary course of
 business in an aggregate amount not to exceed $10,000,000 at any time
 outstanding;

 
	
  

 	
  

 
	
  

 	
           (m)
 Investments constituting (i) Permitted Acquisitions and/or (ii) any
 acquisition of Store locations of any Person for which the aggregate
 consideration payable in connection with such acquisition is less than
 $25,000,000 in any transaction or group of transactions which are part of a
 common plan;

 
	
  

 	
  

 
	
  

 	
           (n)
 Investments of any Person existing at the time such Person becomes a
 Subsidiary of any Loan Party or consolidates or merges with the Borrower or
 any of its Subsidiaries (including in connection with a Permitted
 Acquisition) so long as such Investments were not made in contemplation of
 such Person becoming a Subsidiary or of such consolidation or merger;

 
	
  

 	
  

 
	
  

 	
           (o)
 promissory notes and other non-cash consideration received in connection with
 Dispositions permitted by Section 7.05 hereof;

 
	
  

 	
  

 
	
  

 	
           (p)
 lease, utility and other similar deposits in the ordinary course of business;

 
	
  

 	
  

 
	
  

 	
           (q)
 Investments in the ordinary course of business consisting of endorsements for
 collection or deposit pursuant to Article 3 of the UCC and customary trade
 arrangements with customers pursuant to Article 4 of the UCC, in each case in
 the ordinary course of business consistent with past practices; 

 
	
  

 	
  

 
	
  

 	
           (r)
 the Pension Property Purchases; and

 
	
  

 	
  

 
	
  

 	
           (s)
 other Investments of a nature not otherwise set forth in clauses (a) through
 (r) above, if after giving pro forma effect thereto, the Payment Conditions
 are satisfied;

 


provided, however, that notwithstanding
the foregoing, at any time when Committed Loans are outstanding, the
Investments specified in clauses (a) through (e) or clause (s) shall be subject
to Control Agreements (as defined in the Security Agreement) to the extent
required by the Security Agreement.


          “Permitted
Overadvance” means an Overadvance made by the Administrative Agent, in its
discretion, which:


	
  

 	
  

 
	
  

 	
           (a) is
 made to maintain, protect or preserve the Collateral and/or the Credit
 Parties’ rights under the Loan Documents or which is otherwise for the
 benefit of the Credit Parties; or

 
	
  

 	
  

 
	
  

 	
           (b) is
 made to enhance the likelihood of, or to maximize the amount of, repayment of
 any Obligation or Other Liabilities; 

 


-35-






EXECUTION VERSION

	
  

 	
  

 
	
  

 	
           (c) is
 made to pay any other amount chargeable to any Loan Party hereunder; and

 
	
  

 	
  

 
	
  

 	
           (d)
 together with all other Permitted Overadvances then outstanding, shall not
 (i) exceed five percent (5%) of the Borrowing Base at any time or (ii) unless
 a Liquidation is occurring, remain outstanding for more than forty-five (45)
 consecutive Business Days, unless in each case, the Required Lenders
 otherwise agree;

 


provided however, that the foregoing
shall not (i) modify or abrogate any of the provisions of Section 2.03
regarding the Lenders’ obligations with respect to Letters of Credit or Section
2.04 regarding the Lenders’ obligations with respect to Swing Line Loans, or
(ii) result in any claim or liability against the Administrative Agent
(regardless of the amount of any Overadvance) for “inadvertent Overadvances”
(i.e. where an Overadvance results from changed circumstances beyond the
control of the Administrative Agent (such as a reduction in the collateral
value)), and such “inadvertent Overadvances” shall not reduce the amount of
Permitted Overadvances allowed hereunder, and further provided that in
no event shall the Administrative Agent make an Overadvance, if after giving
effect thereto, the principal amount of the Credit Extensions would exceed the
Aggregate Commitments (as in effect prior to any termination of the Commitments
pursuant to Section 2.06 hereof).


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


           “Plan”
means any employee benefit plan within the meaning of Section 3(2) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any
ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate
is required to contribute on behalf of any of its employees.


          “Platform”
has the meaning specified in Section 6.02.


          
“Prepayment Event” means:


	
  

 	
  

 
	
  

 	
           (a) Any
 Disposition (including pursuant to a sale and leaseback transaction) of any
 property or asset of a Loan Party (other than the sale of Collateral in the
 ordinary course of business and the transfer of any Collateral among Stores
 and other locations of the Loan Parties);

 
	
  

 	
  

 
	
  

 	
           (b) Any
 casualty or other insured damage to, or any taking under power of eminent
 domain or by condemnation or similar proceeding of, any property or asset of
 a Loan Party unless (i) the proceeds therefrom are required to be paid to the
 holder of a Lien on such property or asset having priority over the Lien of
 the Collateral Agent or (ii) prior to the occurrence of a Triggering Event,
 the proceeds therefrom are utilized for purposes of replacing or repairing
 the assets in respect of which such proceeds, awards or payments were
 received within one hundred and eighty (180) days of the occurrence of the
 damage to or loss of the assets being repaired or replaced;

 
	
  

 	
  

 
	
  

 	
           (c) The
 issuance by a Loan Party of any Equity Interests, other than any such
 issuance of Equity Interests (i) to a Loan Party, (ii) as consideration for a
 Permitted Acquisition or (iii) as a compensatory issuance to any employee,
 director, or consultant (including under any option plan); 

 
	
  

 	
  

 
	
  

 	
           (d) The
 incurrence by a Loan Party of any Indebtedness for borrowed money pursuant to
 clause (j) of the definition of Permitted Indebtedness or for borrowed money
 that is not Permitted Indebtedness; or

 


-36-






EXECUTION VERSION

	
  

 	
  

 
	
  

 	
           (e) The
 receipt by any Loan Party of any Extraordinary Receipts.

 


          “Pro Forma
Availability Condition” means, for any date of calculation with respect to any
transaction or payment, Availability following, and after giving effect to,
such transaction or payment, will be equal to or greater than twenty percent
(20%) of the Loan Cap.


          “Public
Lender” has the meaning specified in Section 6.02.


          “Real
Estate” means all land, together with the buildings, structures, parking areas,
and other improvements thereon, now or hereafter owned or leased by any Loan
Party, including all easements, rights-of-way, and similar rights relating
thereto.


          “Recipient”
means the Administrative Agent, any Lender, the L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of any
Loan Party hereunder.


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


          “Registered
Public Accounting Firm” has the meaning specified by the Securities Laws and
shall be independent of the Borrower and its Subsidiaries as prescribed by the
Securities Laws.


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


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


          “Reports”
has the meaning specified in Section 9.12(b).


          “Request
for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to
an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.


          “Required
Lenders” means, as of any date of determination, at least two (2) Lenders
holding more than 50% of the Aggregate Commitments or, if the commitment of
each Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, at least two
(2) Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by
such Lender for purposes of this definition). The Applicable Percentage of, and
the Total Outstandings held or deemed held by, any Defaulting Lender shall be
disregarded in determining Required Lenders at any time; provided that,
the amount of any participation in any Swing Line Loan and Unreimbursed Amounts
that such Defaulting Lender has failed to fund that have not been reallocated
to and funded by another Lender shall be deemed to be held by the Lender that
is the Swing Line Lender or L/C Issuer, as the case may be, in making such
determination.


          “Reserves”
means all (if any) Inventory Reserves and Availability Reserves.


          “Responsible
Officer” means the chief executive officer, president, chief financial officer
or treasurer of a Loan Party or any of the other individuals designated in
writing to the Administrative Agent by an existing Responsible Officer of a
Loan Party as an authorized signatory of any certificate or other document to
be delivered hereunder. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary 


-37-





EXECUTION VERSION

corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.


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


          “Restricted
Payment Conditions” means, at the time of determination with respect to any
Restricted Payment under Section 7.06(c) or 7.06(d) hereof, that (a) no Default
or Event of Default then exists or would arise as a result of making such
Restricted Payment, and (b) after giving effect to such Restricted Payment, the
RP Pro Forma Availability Condition has been satisfied. Prior to undertaking
any Restricted Payment which is subject to the Restricted Payment Conditions,
the Loan Parties shall deliver to the Administrative Agent evidence of
satisfaction of the conditions contained in clause (b) above on a basis
(including, without limitation, giving due consideration to results for prior
periods) reasonably satisfactory to the Administrative Agent.


          “Retirement
Plan Trustee” means the trustee under the Foot Locker Retirement Plan.


          “RP Pro
Forma Availability Condition” means, for any date of calculation with respect
to any Restricted Payment under Section 7.06(c) or 7.06(d) hereof,
Availability, after giving effect to, and as of the end of each Fiscal Month
during the subsequent projected six (6) Fiscal Months following, such
Restricted Payment, will be equal to or greater than twenty percent (20%) of
the Loan Cap.


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


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


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


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


          “Security
Agreement” means the Amended and Restated Security Agreement dated as of the
Effective Date among the Loan Parties and the Collateral Agent. 


          “Security
Documents” means the Security Agreement, the Blocked Account Agreements, the
Credit Card Notifications, and each other security agreement or other
instrument or document executed and delivered by any Loan Party to the
Collateral Agent pursuant to this Agreement or any other Loan Document granting
a Lien to secure any of the Obligations and Other Liabilities.


          “Settlement
Date” has the meaning specified in Section 2.14(a).


          “Shareholders’
Equity” means, as of any date of determination, consolidated shareholders’
equity of the Borrower and its Subsidiaries as of that date determined in
accordance with GAAP.


-38-





EXECUTION VERSION

          “Shrink”
means Inventory which has been lost, misplaced, stolen, or is otherwise
unaccounted for.


          “Solvent”
and “Solvency” means, with respect to any Person on a particular date, that on
such date (a) at fair valuation, all of the properties and assets of such
Person are greater than the sum of the debts, including contingent liabilities,
of such Person, (b) the present fair saleable value of the properties and
assets of such Person is not less than the amount that would be required to pay
the probable liability of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its properties and assets and
pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (d) such Person
does not intend to, and does not believe that it will, incur debts beyond such
Person’s ability to pay as such debts mature, and (e) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or transaction, for which such Person’s properties and assets would
constitute unreasonably small capital after giving due consideration to the
prevailing practices in the industry in which such Person is engaged. The
amount of all guarantees at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at the time, can reasonably
be expected to become an actual or matured liability.


          “Specified
Event of Default” means the occurrence of any Event of Default described in any
of Sections 8.01(a), 8.01(b) (but only with respect to Sections 6.01, 6.02, 6.05(a)
and Article VII), 8.01(d) (but only with respect to Sections 5.05 and
5.20), 8.01(f), 8.01(j), 8.01(k), or 8.01(l).


           “Standby
Letter of Credit” means any Letter of Credit that is not a Commercial Letter of
Credit and that (a) is used in lieu or in support of performance guaranties or
performance, surety or similar bonds (excluding appeal bonds) arising in the
ordinary course of business, (b) is used in lieu or in support of stay or
appeal bonds, (c) supports the payment of insurance premiums for reasonably
necessary casualty insurance carried by any of the Loan Parties, or (d)
supports payment or performance for identified purchases or exchanges of
products or services in the ordinary course of business.


          “Standby
Letter of Credit Sublimit” means $25,000,000.


          “Stated
Amount” means at any time the maximum amount for which a Letter of Credit may
be honored.


          “Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of which
is the number one and the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by the
FRB to which the Administrative Agent is subject with respect to the
Adjusted LIBOR Rate, for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
LIBOR Rate Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


          “Store”
means any retail store (which may include any real property, fixtures,
equipment, inventory and other property related thereto) operated, or to be
operated, by any Loan Party. 


          “Subordinated
Indebtedness” means Indebtedness which is expressly subordinated in right of
payment to the prior payment in full of the Obligations and which is in form
and on terms approved in writing by the Administrative Agent. 


-39-





EXECUTION VERSION

          “Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the Equity Interests
having ordinary voting power for the election of directors or other governing
body are at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of a Loan Party.


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


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


          “Swing
Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.


          “Swing Line
Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.


          “Swing Line
Lender” means Bank of America in its capacity as provider of Swing Line Loans,
or any successor swing line lender hereunder.


          “Swing Line
Loan” has the meaning specified in Section 2.04(a).


          “Swing Line
Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section
2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.


          “Swing Line
Note” means the promissory note of the Borrower substantially in the form of Exhibit
C-2, payable to the order of the Swing Line Lender, evidencing the Swing
Line Loans made by the Swing Line Lender.


          “Swing Line
Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the
Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition
to, the Aggregate Commitments.


-40-







EXECUTION VERSION


          “Synthetic
Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property (including sale and leaseback
transactions), in each case, creating obligations that do not appear on the
balance sheet of such Person but which, upon the application of any Debtor
Relief Laws to such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment). 


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


          “Termination
Date” means the earliest to occur of (i) the Maturity Date, (ii) the date on
which the maturity of the Obligations is accelerated (or deemed accelerated)
and all Commitments are irrevocably terminated (or deemed terminated) in
accordance with Article VIII, or (iii) the termination of all Commitments in
accordance with the provisions of Section 2.06 hereof. 


          “Threshold
Amount” means (i) at any time when the Aggregate Commitments are less than
$300,000,000, fifty percent (50%) of the Loan Cap, and (ii) at any time when
the Aggregate Commitments are greater than or equal to $300,000,000,
twenty-five percent (25%) of the Loan Cap 


          “Total
Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations. 


          “Trading
with the Enemy Act” has the meaning specified in Section 10.18. 


          “Triggering
Event” means either (i) the occurrence and continuance of any Event of Default,
or (ii) the failure of the Borrower to maintain Availability for five (5)
consecutive Business Days of at least twelve and one-half (12.5%) percent of
the Loan Cap. For purposes of this Agreement, the occurrence of a Triggering
Event shall be deemed continuing at the Administrative Agent’s option (i) so
long as such Event of Default is continuing, and/or (ii) if the Triggering
Event arises as a result of the Borrower’s failure to achieve Availability as
required hereunder, until Availability is equal to or has exceeded twelve and
one-half (12.5%) percent of the Loan Cap for sixty (60) consecutive days, in
which case a Triggering Event shall no longer be deemed to be continuing for
purposes of this Agreement; provided that a Triggering Event shall be deemed continuing
(even if an Event of Default is no longer continuing and/or Availability
exceeds the required amount for sixty (60) consecutive days) at all times after
a Triggering Event has occurred and been discontinued on four (4) occasions
after the Effective Date.  


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


          “UCC”
or “Uniform Commercial Code” means the Uniform Commercial Code as in effect
from time to time in the State of New York; provided, however, that if a term
is defined in Article 9 of the Uniform Commercial Code differently than in
another Article thereof, the term shall have the meaning set forth in Article
9; provided further that, if by reason of mandatory provisions of law,
perfection, or the effect of perfection or non-perfection, of a security
interest in any Collateral or the availability of any remedy hereunder is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, “Uniform Commercial Code” means the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or
non-perfection or availability of such remedy, as the case may be.  


-41-





EXECUTION VERSION 


          “UCP
600” means the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce
and dated as of July 1, 2007 (or such later version thereof as may be in effect
at the time of issuance). 


          “UFCA”
has the meaning specified in Section 10.21(d). 


          “UFTA”
has the meaning specified in Section 10.21(d). 


          “Union
City Purchase” means the purchase by the Borrower or a Subsidiary of the
Borrower from the Retirement Plan Trustee of all the equity interests or all or
substantially all the assets of 410 Nashua Corporation, a New Hampshire
corporation, for a purchase price of approximately $2,700,000 (excluding any
related taxes and fees). 


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


          “Unreimbursed
Amount” has the meaning specified in Section 2.03(c)(i). 


          “U.S.
Person” means any Person that is a “United States Person” as defined in Section
7701(a)(30) of the Code. 


          “U.S.
Tax Compliance Certificate” has the meaning specified in Section
3.01(e)(ii)(B)(III). 


          “Weekly
Accelerated Borrowing Base Delivery Event” means either (i) the occurrence and
continuance of any Specified Event of Default, or (ii) the failure of the
Borrower to maintain Availability at least equal to twelve and one-half percent
(12.5%) of the Loan Cap. For purposes of this Agreement, the occurrence of a
Weekly Accelerated Borrowing Base Delivery Event shall be deemed continuing (i)
so long as such Specified Event of Default is continuing, and/or (ii) if the
Weekly Accelerated Borrowing Base Delivery Event arises as a result of the
Borrower’s failure to achieve Availability as required hereunder, until Availability
has exceeded twelve and one-half percent (12.5%) of the Loan Cap for sixty (60)
consecutive calendar days, in which case a Weekly Accelerated Borrowing Base
Delivery Event shall no longer be deemed to be continuing for purposes of this
Agreement. The termination of a Weekly Accelerated Borrowing Base Delivery
Event as provided herein shall in no way limit, waive or delay the occurrence
of a subsequent Weekly Accelerated Borrowing Base Delivery Event in the event
that the conditions set forth in this definition again arise. 


          “Wholly
Owned Subsidiary” means, with respect to any Person, any corporation,
partnership or other entity of which all of the Equity Interests (other than,
in the case of a corporation, directors’ qualifying shares) are directly or
indirectly owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person. 


          1.02
Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document: 


	
  

 	
  

 
	
  

 	
           (a)
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words “include,” “includes” and “including” shall be deemed
to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to
any agreement, instrument or other document (including any Organization
Document) shall be construed as referring to such  

 


-42-





EXECUTION VERSION 


	
  

 	
  

 
	
  

 	
 agreement,
 instrument or other document as from time to time amended, restated, amended
 and restated, supplemented or otherwise modified (subject to any restrictions
 on such amendments, restatements, amendments and restatements, supplements or
 modifications set forth herein or in any other Loan Document), (ii) any
 reference herein to any Person shall be construed to include such Person’s
 successors and assigns, (iii) the words “herein,” “hereof” and
 “hereunder,” and words of similar import when used in any Loan
 Document, shall be construed to refer to such Loan Document in its entirety
 and not to any particular provision thereof, (iv) all references in a Loan
 Document to Articles, Sections, Exhibits and Schedules shall be construed to
 refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
 Document in which such references appear, (v) any reference to any law shall
 include all statutory and regulatory provisions consolidating, amending
 replacing or interpreting such law and any reference to any law or regulation
 shall, unless otherwise specified, refer to such law or regulation as
 amended, modified or supplemented from time to time, and (vi) the words “asset”
 and “property” shall be construed to have the same meaning and effect
 and to refer to any and all tangible and intangible assets and properties,
 including cash, securities, accounts and contract rights. 

 






	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (d)
 Any reference herein or in any other Loan Document to the satisfaction,
 repayment, or payment in full of the Obligations and the Other Liabilities
 shall mean the repayment in Dollars in full in cash or immediately available
 funds (or, in the case of contingent reimbursement obligations with respect
 to Letters of Credit and Bank Products (other than Swap Contracts), providing
 Cash Collateralization) of all of the Obligations (including the payment of
 any termination amount then applicable (or which would or could become
 applicable as a result of the repayment of the other Obligations) under Swap
 Contracts) other than (i) unasserted contingent indemnification Obligations,
 (ii) any Obligations relating to Bank Products (including Swap Contracts)
 that, at such time, are allowed by the applicable Bank Product provider to
 remain outstanding without being required to be repaid or Cash Collateralized,
 and (iii) any Obligations relating to Cash Management Services that, at such
 time, are allowed by the applicable provider of such Cash Management Services
 to remain outstanding without being required to be repaid. 

 



          1.03
Accounting Terms 


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (b)
 Changes in GAAP. If at any time any change in GAAP would affect the
 computation of any financial ratio or requirement set forth in any Loan
 Document, and either the Borrower or the Required Lenders shall so request,
 the Administrative Agent, the Lenders and the Borrower shall negotiate in
 good faith to amend such ratio or requirement to preserve the original 

 


-43-





EXECUTION VERSION 


	
  

 	
  

 
	
  

 	
 intent
 thereof in light of such change in GAAP (subject to the approval of the
 Required Lenders); provided that, until so amended, (i) such ratio or
 requirement shall continue to be computed in accordance with GAAP prior to
 such change therein and (ii) the Borrower shall provide to the Administrative
 Agent and the Lenders financial statements and other documents required under
 this Agreement or as reasonably requested hereunder setting forth a
 reconciliation between calculations of such ratio or requirement made before
 and after giving effect to such change in GAAP. 

 






	
  

 	
  

 
	
  

 	
           (c)
 Adoption of International Financial Reporting Standards. In the event
 that the Borrower elects to transition the accounting policies and reporting
 practices of the Loan Parties from GAAP to the International Financial
 Reporting Standards pursuant to Section 7.13 hereof, and any such adoption of
 the International Financial Reporting Standards would affect the computation
 of any financial ratio or requirement set forth in any Loan Document, and
 either the Borrower or the Required Lenders shall so request, the Administrative
 Agent, the Lenders and the Borrower shall negotiate in good faith to amend
 such ratio or requirement to preserve the original intent thereof in light of
 such adoption of the International Financial Reporting Standards (subject to
 the approval of the Required Lenders); provided that, until so
 amended, (i) such ratio or requirement shall continue to be computed in
 accordance with GAAP prior to such adoption of the International Financial
 Reporting Standards and (ii) the Borrower shall provide to the Administrative
 Agent and the Lenders financial statements and other documents required under
 this Agreement or as reasonably requested hereunder setting forth a
 reconciliation between calculations of such ratio or requirement made before
 and after giving effect to such adoption of the International Financial
 Reporting Standards. 

 


          1.04
Rounding. Any
financial ratios required to be maintained by the Loan Parties pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number). 


          1.05
Times of Day. Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable). 


          1.06
Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to be the Stated Amount of such
Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms of any Issuer Documents
related thereto, provides for one or more automatic increases in the Stated
Amount thereof, the amount of such Letter of Credit shall be deemed to be the
maximum Stated Amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum Stated Amount is in effect at such time;
provided further that for purposes of calculating any Letter of Credit
Fees hereunder, such Letter of Credit Fees shall be calculated on the actual
Stated Amount of such Letter of Credit in effect at the time of such
calculation, without giving effect to automatic increases which have not yet
occurred. 


ARTICLE II 

THE COMMITMENTS AND
CREDIT EXTENSIONS


          2.01
Committed Loans; Reserves. (a) Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to
the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at 


-44-





EXECUTION VERSION 


any time outstanding the
lesser of (x) the amount of such Lender’s Commitment, and (y) such Lender’s
Applicable Percentage of the Borrowing Base; subject in each case to the
following limitations: 


	
  

 	
  

 
	
  

 	
                     (i)
 after giving effect to any Committed Borrowing, the Total Outstandings shall
 not exceed the Loan Cap; 

 
	
  

 	
  

 
	
  

 	
                     (ii)
 after giving effect to any Committed Borrowing, the aggregate Outstanding
 Amount of the Committed Loans of any Lender, plus such Lender’s
 Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
 such Lender’s Applicable Percentage of the Outstanding Amount of all Swing
 Line Loans shall not exceed such Lender’s Commitment; and 

 
	
  

 	
  

 
	
  

 	
                     (iii)
 The Outstanding Amount of all L/C Obligations shall not at any time exceed
 the Letter of Credit Sublimit. 

 



Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay under Section 2.05, and
reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or
LIBOR Rate Loans, as further provided herein. 


	
  

 	
  

 
	
                     (b)
 The following are the Inventory Reserves and Availability Reserves as of the
 Effective Date: 

 
	
  

 	
  

 
	
  

 	
                     (i)
 Shrink (an Inventory Reserve): An amount equal to $1,500,000; 

 
	
  

 	
  

 
	
  

 	
                     (ii)
 Rent (an Availability Reserve): An amount equal to two (2) months’ rent for
 all of the Loan Parties’ leased locations in each Landlord Lien State, other
 than leased locations with respect to which the Collateral Agent has received
 a Collateral Access Agreement; and 

 
	
  

 	
  

 
	
  

 	
                     (iii)
 Customer Credit Liabilities (an Availability Reserve): An amount equal to (x)
 fifty percent (50%) of the Customer Credit Liabilities set forth in clause (a)
 of the definition thereof plus (y) one hundred percent (100%) of the Customer
 Credit Liabilities set forth in clause (b) of the definition thereof (in each
 case as reflected in the Loan Parties’ books and records). 

 
	
  

 	
  

 
	
                     (c)
 The Administrative Agent shall have the right, at any time and from time to
 time after the Effective Date in its Permitted Discretion to establish,
 modify or eliminate Reserves upon three (3) Business Days’ prior written
 notice to the Borrower (during which period the Administrative Agent shall be
 available to discuss in good faith any such proposed Reserve with the
 Borrower and the Borrower may take such action as may be required so that the
 event, condition or matter that is the basis for such Reserve or modification
 no longer exists); provided that no such prior notice shall be
 required for (1) changes to any Reserves resulting solely by virtue of
 mathematical calculations of the amount of the Reserve in accordance with the
 methodology of calculation previously utilized (such as, but not limited to,
 rent and Customer Credit Liabilities), or (2) changes to Reserves or
 establishment of additional Reserves if a Material Adverse Effect has
 occurred or it would be reasonably likely that a Material Adverse Effect to
 the Lenders would occur were such Reserve not changed or established prior to
 the expiration of such three (3) Business Day period. 

 



          2.02
Borrowings, Conversions and Continuations of Committed Loans.


-45-





EXECUTION VERSION 


                    (a)
Committed Loans (other than Swing Line Loans) shall be either Base Rate Loans
or LIBOR Rate Loans as the Borrower may request subject to and in accordance
with this Section 2.02. All Swing Line Loans shall be only Base Rate Loans.
Subject to the other provisions of this Section 2.02, Committed Borrowings of
more than one Type may be incurred at the same time. 


                    (b)
Each Committed Borrowing, each conversion of Committed Loans from one Type to
the other, and each continuation of LIBOR Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given
by telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of
any Borrowing of, conversion to or continuation of LIBOR Rate Loans or of any
conversion of LIBOR Rate Loans to Base Rate Loans, and (ii) on the requested
date (which shall be a Business Day) of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(b) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
LIBOR Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the
other, or a continuation of LIBOR Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed,
converted or continued, (iv) the Type of Committed Loans to be borrowed or to
which existing Committed Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans.
Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
LIBOR Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of LIBOR Rate Loans in any such Committed Loan Notice, but fails
to specify an Interest Period, it will be deemed to have specified an Interest
Period of one month. Notwithstanding anything to the contrary herein, a Swing
Line Loan may not be converted to a LIBOR Rate Loan. 


                    (c)
Following receipt of a Committed Loan Notice, the Administrative Agent shall
promptly notify each applicable Lender of the amount of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in Section 2.02(b). In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to
the Administrative Agent in immediately available funds at the Administrative
Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), the Administrative Agent shall promptly make
all funds so received available to the Borrower in like funds (but in any event
shall use reasonable efforts to make such funds available by 4:00 p.m.) on the
day of receipt by the Administrative Agent either by (i) crediting the account
of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to the Administrative Agent by the Borrower; provided,
however, that if, on the date the Committed Loan Notice with respect to
such Borrowing is given by the Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and second, shall be made
available to the Borrower as provided above. 


                    (d)
In the event that the Borrower, after receipt of an invoice therefor, fails to
pay any interest, fee, service charge, expenses, or other payment to which any
Credit Party is entitled from the 


-46-





EXECUTION VERSION 


Loan
Parties pursuant hereto or any other Loan Document when due, the Administrative
Agent, without the request of the Borrower, may advance any such interest, fee,
service charge, expenses, or other payment to which any Credit Party is
entitled from the Loan Parties pursuant hereto or any other Loan Document and
may charge the same to the Loan Account notwithstanding that an Overadvance may
result thereby. The Administrative Agent shall advise the Borrower of any such
advance or charge promptly after the making thereof. Such action on the part of
the Administrative Agent shall not constitute a waiver of the Administrative
Agent’s rights and the Borrower’s obligations under Section 2.05(c). Any amount
which is added to the principal balance of the Loan Account as provided in this
Section 2.02(d) shall bear interest at the interest rate then and thereafter
applicable to Base Rate Loans. 


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


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


                    (g)
After giving effect to all Committed Borrowings, all conversions of Committed
Loans from one Type to the other, and all continuations of Committed Loans as
the same Type, there shall not be more than ten (10) Interest Periods in effect
with respect to LIBOR Rate Loans. 


                    (h)
The Administrative Agent, the Lenders, the Swing Line Lender and the L/C Issuer
shall have no obligation to make any Loan or to provide any Letter of Credit if
an Overadvance would result. The Administrative Agent may, in its discretion,
make Permitted Overadvances without the consent of the Lenders, the Swing Line
Lender and the L/C Issuer and each Lender shall be bound thereby. Any Permitted
Overadvance may, at the option of the Administrative Agent, constitute a Swing
Line Loan. A Permitted Overadvance is for the account of the Borrower and shall
constitute a Base Rate Loan and an Obligation and shall be repaid by the
Borrower in accordance with the provisions of Section 2.05(c). The making of
any such Permitted Overadvance on any one occasion shall not obligate the
Administrative Agent or any Lender to make or permit any Permitted Overadvance
on any other occasion or to permit such Permitted Overadvances to remain
outstanding. The making by the Administrative Agent of a Permitted Overadvance
shall not modify or abrogate any of the provisions of Section 2.03 regarding
the Lenders’ obligations to purchase participations with respect to Letters of
Credit or of Section 2.04 regarding the Lenders’ obligations to purchase
participations with respect to Swing Line Loans. The Administrative Agent shall
have no liability for, and no Loan Party or Credit Party shall have the right
to, or shall, bring any claim of any kind whatsoever against the Administrative
Agent with respect to “inadvertent Overadvances” (i.e. where an Overadvance
results from changed circumstances beyond the control of the Administrative
Agent (such as a reduction in the collateral value)) regardless of the amount
of any such Overadvance(s). 


          2.03
Letters of Credit.


                    (a)
The Letter of Credit Commitment. 


                              (i)
Subject to the terms and conditions set forth herein, (A) the L/C Issuer
agrees, in reliance upon the agreements of the Lenders set forth in this
Section 2.03, (1) from time to time on any Business Day during the period from
the Effective Date until and including the Letter of Credit 


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EXECUTION VERSION 


Expiration
Date, to issue Letters of Credit for the account of the Borrower, and to amend
or extend Letters of Credit previously issued by it, in accordance with Section
2.03(b) below, and (2) to honor drawings under the Letters of Credit; and (B)
the Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower and any drawings thereunder; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(w) the Total Outstandings shall not exceed the Loan Cap, (x) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment, (y) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit, and (z) the Outstanding Amount of the L/C Obligations with respect to
Standby Letters of Credit shall not exceed the Standby Letter of Credit
Sublimit. Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower that
the L/C Credit Extension so requested complies with the conditions set forth in
the proviso to the preceding sentence. Within the foregoing limits, and subject
to the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. Any L/C Issuer (other
than Bank of America or any of its Affiliates) shall notify the Administrative
Agent in writing on each Business Day of all Letters of Credit issued on the
prior Business Day by such L/C Issuer, provided that (A) until the
Administrative Agent advises any such Issuing Bank that the provisions of
Section 4.02 are not satisfied, or (B) the aggregate amount of the Letters of
Credit issued in any such week exceeds such amount as shall be agreed by the
Administrative Agent and such L/C Issuer, such L/C Issuer shall be required to
so notify the Administrative Agent in writing only once each week of the
Letters of Credit issued by such L/C Issuer during the immediately preceding
week as well as the daily amounts outstanding for the prior week, such notice
to be furnished on such day of the week as the Administrative Agent and such
L/C Issuer may agree. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Effective Date shall be
subject to and governed by the terms and conditions hereof. 


	
  

 	
  

 
	
  

 	
                     (ii)
 The L/C Issuer shall not issue any Letter of Credit, if: 

 
	
  

 	
  

 
	
  

 	
                               (A)
 subject to Section 2.03(b)(iii), the expiry date of such requested Standby
 Letter of Credit would occur more than twelve months after the date of
 issuance or last extension; or 

 
	
  

 	
  

 
	
  

 	
                               (B)
 subject to Section 2.03(b)(iii), the expiry date of such requested Commercial
 Letter of Credit would occur more than one hundred and eighty (180) days
 after the date of issuance or last extension, unless the Required Lenders
 have approved such expiry date; or 

 
	
  

 	
  

 
	
  

 	
                               (C)
 the expiry date of such requested Letter of Credit would occur after the
 Letter of Credit Expiration Date, unless either such Letter of Credit is Cash
 Collateralized on or prior to the date of issuance of such Letter of Credit
 or all the Lenders have approved such expiry date. 

 



                              (iii)
The L/C Issuer shall not issue any Letter of Credit without the prior consent
of the Administrative Agent if: 


	
  

 	
  

 
	
  

 	
                               (A)
 any order, judgment or decree of any Governmental Authority or arbitrator
 shall by its terms purport to enjoin or restrain the L/C Issuer from issuing
 such Letter of Credit, or any Law applicable to the L/C Issuer or any request
 or directive (whether or not having the force of law) from any Governmental
 Authority with jurisdiction over the L/C Issuer shall 

 


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EXECUTION VERSION 


prohibit, or request that
the L/C Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Effective Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Effective
Date and which the L/C Issuer in good faith deems material to it; 


	
  

 	
  

 
	
  

 	
                               (B)
 the issuance of such Letter of Credit would violate one or more policies of
 the L/C Issuer applicable to letters of credit generally; 

 
	
  

 	
  

 
	
  

 	
                               (C)
 such Letter of Credit is to be denominated in a currency other than Dollars; provided
 that if the L/C Issuer, in its discretion, issues a Letter of Credit
 denominated in a currency other than Dollars, all reimbursements by the
 Borrower of the honoring of any drawing under such Letter of Credit shall be
 paid in the currency in which such Letter of Credit was denominated; 

 
	
  

 	
  

 
	
  

 	
                               (D)
 such Letter of Credit contains any provisions for automatic reinstatement of
 the Stated Amount after any drawing thereunder; or

 
	
  

 	
  

 
	
  

 	
                               (E)
 any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
 entered into arrangements, including the delivery of Cash Collateral,
 reasonably satisfactory to the L/C Issuer (in its reasonable discretion) with
 the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential
 Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect
 to the Defaulting Lender arising from that Letter of Credit and all other L/C
 Obligations as to which the L/C Issuer has actual or potential Fronting
 Exposure, as it may elect in its reasonable discretion. 

 


                              (iv)
The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not
be permitted at such time to issue such Letter of Credit in its amended form
under the terms hereof or if the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit. 


                              (v)
The L/C Issuer shall act on behalf of the Lenders with respect to any Letters
of Credit issued by it and the documents associated therewith, and the L/C
Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article IX with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to
such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C
Issuer. 


                    (b)
Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension
Letters of Credit. 


                              (i)
Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower.
Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two (2) Business Days
(or such later date and time as the Administrative Agent and the L/C Issuer may
agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a
request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail 


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EXECUTION VERSION 


reasonably
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other customary
matters as the L/C Issuer may reasonably require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other customary matters as the L/C Issuer may
reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer
and the Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may reasonably
require. 


                              (ii)
Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the L/C Issuer has received written notice
from any Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained
in Article IV shall not then be satisfied or unless the L/C Issuer would
not be permitted or would have no obligation at such time to issue such Letter
of Credit, in each case, under the terms hereof (by reason of the provisions of
Section 2.03(a)(ii) or otherwise), then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower (or the applicable Loan Party) or enter into
the applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer’s usual and customary business practices. Immediately upon the
issuance or amendment of each Letter of Credit, each Lender shall be deemed to
(without any further action), and hereby irrevocably and unconditionally agrees
to, purchase from the L/C Issuer, without recourse or warranty, a risk participation
in such Letter of Credit in an amount equal to the product of such Lender’s
Applicable Percentage times the Stated Amount of such Letter of Credit. Upon
any change in the Commitments under this Agreement, it is hereby agreed that
with respect to all L/C Obligations, there shall be an automatic adjustment to
the participations hereby created to reflect the new Applicable Percentages of
the assigning and assignee Lenders.  


                              (iii)
If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer shall, subject to the provisions of this Section 2.03, issue a
Standby Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of Credit
must permit the L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Standby
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Standby Letter of Credit is issued.
Unless otherwise directed by the L/C Issuer, the Borrower shall not be required
to make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not require) the L/C Issuer to permit the extension of
such Standby Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to issue
such Standby Letter of Credit in its revised form (as extended), in each case,
under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before
the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to  


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EXECUTION VERSION 


permit
such extension or (2) from the Administrative Agent, any Lender or the Borrower
that one or more of the applicable conditions specified in Section 4.02 is not
then satisfied, and in each such case directing the L/C Issuer not to permit
such extension. 


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


                    (c)
Drawings and Reimbursements; Funding of Participations. 


                              (i)
Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower
and the Administrative Agent thereof; provided, however, that any
failure to give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the L/C Issuer and the Lenders with respect to
any such payment. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”),
the Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the unreimbursed drawing
(the “Unreimbursed Amount”), and the amount of such Lender’s Applicable
Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other than the
delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice. 


                              (ii)
Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Applicable Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the L/C Issuer. 


                              (iii)
With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of
the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
due and payable on demand (together with interest) and shall bear interest at
the Default Rate. In such event, each Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03. 


                              (iv)
Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest 


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EXECUTION VERSION 


in
respect of such Lender’s Applicable Percentage of such amount shall be solely
for the account of the L/C Issuer. 


                              (v)
Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse
the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by
this Section 2.03(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Committed Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.  


                              (vi)
If any Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a
rate determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation plus any administrative, processing or similar fees
customarily charged by the L/C Issuer in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lender’s Committed Loan included in the relevant
Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as
the case may be. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error. 


                    (d)
Repayment of Participations. 


                              (i)
At any time after the L/C Issuer has made a payment under any Letter of Credit
and has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable Percentage thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s
L/C Advance was outstanding) in the same funds as those received by the
Administrative Agent. 


                              (ii)
If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of
the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each Lender shall
pay to the Administrative Agent for the account of the L/C Issuer its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time to time
in effect. The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement. 


                    (e)
Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, 


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EXECUTION VERSION 


unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following: 


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


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


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


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


                              (v)
any other circumstance or happening whatsoever, whether or not similar to any
of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or any of
its Subsidiaries; or 


                              (vi)
the fact that any Event of Default shall have occurred and be continuing. 


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


                    (f)
Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; (iii) any error, omission, interruption, loss or delay
in transmission or delivery of any draft, notice or other communication under
or relating to any Letter of Credit or any error in interpretation of technical
terms; (iv) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document; or
(v) any action, neglect or omission under or in connection with any Letter of
Credit or Issuer Documents, including, without limitation, the issuance or
amendment of any Letter of Credit, the failure to issue or 


-53-





EXECUTION VERSION 


amend
any Letter of Credit, or the honoring or dishonoring of any demand under any
Letter of Credit. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the L/C Issuer, the Administrative Agent, any of
their respective Related Parties nor any correspondent, participant or assignee
of the L/C Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary
(or the L/C Issuer may refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms of such Letter of
Credit), and the L/C Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason. 


                    (g)
Cash Collateral. Upon the written request of the Administrative Agent,
if, as of the Letter of Credit Expiration Date, any L/C Obligation for any
reason remains outstanding, the Borrower shall, in each case, within one
Business Day after such request, Cash Collateralize the then Outstanding Amount
of all L/C Obligations. Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize” means to
pledge and deposit with or deliver to the Administrative Agent, for the benefit
of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash
or deposit account balances in an amount equal to 103% of the Outstanding
Amount of all L/C Obligations, pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby Consented to by the Lenders). Derivatives of such term
have corresponding meanings. The Borrower hereby grants to the Collateral Agent
a security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America, except that
Permitted Investments of the type listed in clauses (a) through (f) of the
definition thereof may be made at the request of the Borrower at the option and
in the sole discretion of the Collateral Agent (and at the Borrower’s risk and
expense); interest or profits, if any, on such investments shall accumulate in
such account. If at any time the Administrative Agent reasonably determines
that any funds held as Cash Collateral are subject to any right or claim of any
Person other than the Administrative Agent or that the total amount of such
funds is less than the aggregate Outstanding Amount of all L/C Obligations, the
Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited as Cash Collateral,
an amount equal to the excess of (x) such aggregate Outstanding Amount over (y)
the total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent reasonably determines to be free and clear of any such
right and claim. Upon the drawing of any Letter of Credit for which funds are
on deposit as Cash Collateral, such funds shall be applied, to the extent
permitted under applicable Laws, to reimburse the L/C Issuer and, to the extent
not so applied, shall thereafter be applied to satisfy other Obligations and
Other Liabilities. 


                    (h)
Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an 


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EXECUTION VERSION 


Existing Letter of Credit),
(i) the rules of the ISP shall apply to each Standby Letter of Credit, and (ii)
the rules of the UCP 600 shall apply to each Commercial Letter of Credit. 


                    (i)
Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily Stated
Amount under each such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of the
Letter of Credit shall be determined in accordance with Section 1.06. Letter of
Credit Fees shall be (i) due and payable on the fifteenth day after the end of
each March, June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand, and (ii) computed on a quarterly
basis in arrears. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under of each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, while any Event of
Default exists, Letter of Credit Fees shall accrue at the Default Rate as provided
in Section 2.08 hereof. 


                    (j)
Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee (i) with respect to each Commercial Letter of Credit, at a rate
equal to 0.125% per annum, computed on the amount of such Letter of Credit, and
payable upon the issuance or amendment thereof, and (ii) with respect to each
Standby Letter of Credit, at a rate equal to 0.125% per annum, computed on the
daily amount available to be drawn under such Letter of Credit and on a
quarterly basis in arrears. Such fronting fees shall be due and payable on the
fifteenth Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of the Letter of Credit shall be
determined in accordance with Section 1.06. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time
in effect. Such customary fees and standard costs and charges are due and
payable on demand (accompanied by an invoice therefor) and are nonrefundable. 


                    (k)
Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall
control. 


          2.04
Swing Line Loans.


                    (a)
The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, to make loans (each such loan, a “Swing
Line Loan”) to the Borrower from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Applicable Percentage of
the Outstanding Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Loan Cap, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender at such time,
plus such Lender’s Applicable Percentage of the Outstanding Amount of
all L/C Obligations at such time, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans at such time shall
not exceed such Lender’s Commitment, and provided, further, that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance 


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EXECUTION VERSION 


any outstanding Swing Line
Loan, and provided further that the Swing Line Lender shall not be under
any obligation to make any Swing Line Loan if it shall reasonably determine
(which determination shall be conclusive and binding absent manifest error)
that it has, or by such Credit Extension may have, Fronting Exposure. Within
the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only
at a rate based on the Base Rate. Immediately upon the making of a Swing Line
Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan. The
Swing Line Lender shall have all of the benefits and immunities (A) provided to
the Administrative Agent in Article IX with respect to any acts taken or
omissions suffered by the Swing Line Lender in connection with Swing Line Loans
made by it or proposed to be made by it as if the term “Administrative Agent”
as used in Article IX included the Swing Line Lender with respect to
such acts or omissions, and (B) as additionally provided herein with respect to
the Swing Line Lender.  


                    (b)
Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum of $100,000, and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent at the
request of the Required Lenders prior to 2:00 p.m. on the date of the proposed
Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject
to the terms and conditions hereof, the Swing Line Lender may, not later than
3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds; provided, however, that if, on the
date of the proposed Swing Line Loan, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and second, shall be made
available to the Borrower as provided above. 


                    (c)
Refinancing of Swing Line Loans. 


                              (i)
The Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Borrower (which hereby irrevocably authorize the
Swing Line Lender to so request on their behalf), that each Lender make a Base
Rate Loan in an amount equal to such Lender’s Applicable Percentage of the
amount of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Committed Loan Notice
for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02. The Swing
Line Lender shall furnish the Borrower with a copy of the applicable Committed
Loan Notice promptly after delivering such notice to the Administrative Agent.
Each Lender shall make an amount equal to its Applicable 


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EXECUTION VERSION 


Percentage
of the amount specified in such Committed Loan Notice available to the
Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender. 


                              (ii)
If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender’s payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.04(c)(i) shall be deemed payment in respect of such participation. 


                              (iii)
If any Lender fails to make available to the Administrative Agent for the
account of the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time
specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the
Swing Line Lender at a rate per annum equal to the greater of the Federal Funds
Rate and a rate determined by the Swing Line Lender in accordance with banking
industry rules on interbank compensation plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with
the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (iii) shall be conclusive absent
manifest error. 


                              (iv)
Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower
to repay Swing Line Loans, together with interest as provided herein. 


                    (d)
Repayment of Participations. 


                              (i)
At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of
such Swing Line Loan, the Swing Line Lender will distribute to such Lender its
Applicable Percentage of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
risk participation was funded) in the same funds as those received by the Swing
Line Lender. 


                              (ii)
If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the 


-57-





EXECUTION VERSION 


circumstances
described in Section 10.05 (including pursuant to any settlement entered into
by the Swing Line Lender in its discretion), each Lender shall pay to the Swing
Line Lender its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing Line
Lender. The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement. 


                    (e)
Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Loan or risk participation pursuant to
this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing
Line Loan, interest in respect of such Applicable Percentage shall be solely
for the account of the Swing Line Lender. 


                    (f)
Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender. 


          2.05
Prepayments.


                    (a)
The Borrower may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Committed Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) two (2) Business Days
prior to any date of prepayment of LIBOR Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of LIBOR Rate Loans shall be
in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in
each case, if less, the entire principal amount thereof then outstanding. Each
such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid and, if LIBOR Rate Loans, the Interest Period(s)
of such Loans. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender’s Applicable
Percentage of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment
of a LIBOR Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section
3.05. Each such prepayment shall be applied to the Committed Loans of the
Lenders in accordance with their respective Applicable Percentages. 


                    (b)
The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of
$100,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.  


                    (c)
If for any reason the Total Outstandings at any time exceed the Loan Cap, as
then in effect, the Borrower shall immediately prepay Loans, Swing Line Loans
and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than
L/C Borrowings) in an aggregate amount equal to such excess; provided, however,
that the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(c) unless after the prepayment in
full of the Loans, the Total 


-58-





EXECUTION VERSION 


Outstandings exceed the Loan
Cap (and any such Cash Collateralization shall only be required with respect to
such additional amount). 


                    (d)
The Borrower shall prepay the Loans and Cash Collateralize the L/C Obligations
in accordance with the provisions of Section 6.13 hereof. 


                    (e)
If any transaction constituting a Prepayment Event is consummated at any time
while Availability is less than $50,000,000 after giving effect to such
transaction, the Borrower shall prepay the Loans and, after the occurrence and
during the continuance of an Event of Default or to the extent required by the
provisions of Section 2.06(c), Cash Collateralize the L/C Obligations in an
amount equal to the Net Proceeds received by a Loan Party on account of such
Prepayment Event, irrespective of whether a Triggering Event then exists and is
continuing. 


                    (f)
Prepayments made pursuant to Section 2.05(c), (d) and (e) above, first,
shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second,
shall be applied ratably to the outstanding Committed Loans, third,
after the occurrence and during the continuance of an Event of Default, shall
be used to Cash Collateralize the remaining L/C Obligations; and, fourth,
the amount remaining, if any, after the prepayment in full of all L/C
Borrowings, Swing Line Loans and Committed Loans outstanding at such time and
the Cash Collateralization of the remaining L/C Obligations in full may be
retained by the Borrower for use in the ordinary course of its business. Upon
the drawing of any Letter of Credit that has been Cash Collateralized, the
funds held as Cash Collateral shall be applied (without any further action by
or notice to or from the Borrower or any other Loan Party) to reimburse the L/C
Issuer or the Lenders, as applicable. 


                    (g)
Prepayments made pursuant to this Section 2.05 shall not reduce the Aggregate
Commitments hereunder. 


	
  

 	
  

 
	
  

 	
 2.06
 Termination or Reduction of Commitments. The Borrower may, upon irrevocable notice
 to the Administrative Agent, terminate the Aggregate Commitments, the Letter
 of Credit Sublimit or the Swing Line Sublimit or from time to time
 permanently reduce the Aggregate Commitments, the Letter of Credit Sublimit
 or the Swing Line Sublimit; provided that (i) any such notice shall be
 received by the Administrative Agent not later than 11:00 a.m. three (3)
 Business Days prior to the date of termination or reduction, (ii) any such
 partial reduction shall be in an aggregate amount of $10,000,000 or any whole
 multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
 terminate or reduce (A) the Aggregate Commitments if, after giving effect
 thereto and to any concurrent prepayments hereunder, the Total Outstandings
 would exceed the Aggregate Commitments, (B) the Letter of Credit Sublimit if,
 after giving effect thereto, the Outstanding Amount of L/C Obligations not
 fully Cash Collateralized hereunder would exceed the Letter of Credit
 Sublimit, and (C) the Swing Line Sublimit if, after giving effect thereto,
 and to any concurrent payments hereunder, the Outstanding Amount of Swing
 Line Loans hereunder would exceed the Swing Line Sublimit. 

 






	
  

 
	
          (b)
 If, after giving effect to any reduction of the Aggregate Commitments, the
 Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
 the Aggregate Commitments, such Letter of Credit Sublimit or Swing Line
 Sublimit shall be automatically reduced by the amount of such excess. 

 
	
  

 
	
          (c)
 The Administrative Agent will promptly notify the Lenders of any termination
 or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or the
 Aggregate Commitments under this Section 2.06. Upon any reduction of the
 Aggregate Commitments, the Commitment of each Lender shall be reduced by such
 Lender’s Applicable Percentage of such reduction amount. 

 


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EXECUTION VERSION 


	
  

 	
  

 
	
  

 	
 All
 fees (including, without limitation, commitment fees and Letter of Credit
 Fees) and interest in respect of the Aggregate Commitments accrued until the
 effective date of any termination of the Aggregate Commitments shall be paid
 on the effective date of such termination. If, as a result of such
 termination or reduction, (i) the Outstanding Amount of L/C Obligations not
 fully Cash Collateralized hereunder would exceed the Letter of Credit
 Sublimit, the Borrower shall contemporaneously with such reduction or
 termination, Cash Collateralize such excess amount, and (ii) the Committed
 Loans or the Swing Line Loans hereunder would exceed the Aggregate
 Commitments or the Swing Line Sublimit, as applicable, the Borrower shall
 contemporaneously with such reduction or termination, pay the Administrative
 Agent, for the benefit of the Lenders, an amount equal to such excess. 

 



          2.07
Repayment of Loans.


	
  

 
	
                     (a)
 The Borrower shall repay to the Lenders on the Termination Date the aggregate
 principal amount of Committed Loans outstanding on such date. 

 
	
  

 
	
                     (b)
 To the extent not previously paid, the Borrower shall repay the outstanding
 balance of the Swing Line Loans on the Termination Date. 

 
	
  

 
	
                     (c)
 On the Termination Date, the Borrower shall Cash Collateralize the L/C
 Obligations, and, if required pursuant to Section 10.11 hereof, the Other
 Liabilities, in each case outstanding as of such date in accordance with the
 terms hereof. 

 



          2.08
Interest.


                    (a)
Subject to the provisions of Section 2.08(b) below, (i) each LIBOR Rate Loan
shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the LIBOR Rate for such Interest
Period plus the Applicable Margin; (ii) each Base Rate Loan shall bear interest
on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Margin; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Margin.  


                    (b)
(i) If any amount payable under any Loan Document is not paid when due (after
giving effect to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws for so long as such Event of
Default is continuing. 


                              (ii)
If any other Event of Default exists, then the Administrative Agent may, and
upon the request of the Required Lenders shall, notify the Borrower that all
outstanding Obligations shall thereafter bear interest at a fluctuating
interest rate per annum at all times while such Event of Default is continuing
equal to the Default Rate and thereafter such Obligations shall bear interest
at the Default Rate to the fullest extent permitted by applicable Laws. 


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


                    (c)
Interest on each Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be specified
herein. Interest hereunder 


-60-







EXECUTION VERSION 


shall be due and payable in accordance with the terms hereof before and
after judgment, and before and after the commencement of any proceeding under
any Debtor Relief Law.


          2.09 Fees. In addition to certain fees
described in subsections (i) and (j) of Section 2.03:


                    (a)
Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a
commitment fee equal 0.25% per annum times the actual daily amount by
which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Loans (but excluding the principal amount of Swing Line Loans then outstanding)
and (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall
accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article IV is not met, and
shall be due and payable quarterly in arrears on the fifteenth day after the
end of each March, June, September and December, commencing with the first such
date to occur after the Effective Date, and on the last day of the Availability
Period. Notwithstanding the foregoing, in calculating the Commitment Fee
payable to any Lender which is also the Swing Line Lender, the principal amount
of Swing Line Loans outstanding shall be included in the calculation of the
Outstanding Amount of Loans of such Lender. 


                    
(b) Other Fees. The Borrower shall pay to MLPFS and the Administrative
Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


          2.10 Computation of Interest and Fees. All
computations of interest for Base Rate Loans when the Base Rate is determined
by Bank of America’s “prime rate” shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall, subject to Section 2.12(a), bear interest for one
day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.


          2.11 Evidence of Debt. 


                    
(a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by the Administrative Agent (the “Loan
Account”) in the ordinary course of business. In addition, each Lender may
record in such Lender’s internal records, an appropriate notation evidencing
the date and amount of each Loan from such Lender, each payment and prepayment
of principal of any such Loan, and each payment of interest, fees and other
amounts due in connection with the Obligations and Other Liabilities due to
such Lender. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrower and the interest and
payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to
pay any amount owing with respect to the Obligations and Other Liabilities. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a Note, which shall evidence
such Lender’s Loans in addition to such accounts or records. Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if 


-61-






EXECUTION VERSION 


applicable), amount and maturity of its Loans and payments with respect
thereto. Upon receipt of an affidavit of a Lender as to the loss, theft,
destruction or mutilation of such Lender’s Note and upon cancellation of such
Note, the Borrower will issue, in lieu thereof, a replacement Note in favor of
such Lender, in the same principal amount thereof and otherwise of like tenor.


                    (b)
In addition to the accounts and records referred to in Section 2.11(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans. In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


          2.12 Payments Generally; Administrative Agent’s
Clawback.


                    
(a) General. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s
Office in Dollars and in immediately available funds not later than 2:00 p.m.
on the date specified herein. The Administrative Agent will promptly distribute
to each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the Administrative Agent
after 2:00 p.m. shall, at the option of the Administrative Agent, be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue until such next succeeding Business Day. If any
payment (other than with respect to payment of a LIBOR Rate Loan) to be made by
the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.


                    
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to (A)
the proposed date of any Borrowing of LIBOR Rate Loans (or in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such
Borrowing) or (B) the date that such Lender’s participation in a Letter of
Credit or Swing Line Loan is required to be funded, that such Lender will not
make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or in the case of
a Borrowing of Base Rate Loans, that such Lender has made such share available
in accordance with and at the time required by Section 2.02) and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender (on demand) and the Borrower (within two Business Days after
demand) severally agree to pay to the Administrative Agent forthwith such
corresponding amount in immediately available funds with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation plus any
administrative processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a
payment to be made by the Borrower, the interest rate applicable to Base Rate
Loans. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall
promptly remit to the Borrower the amount of such interest paid by the Borrower
for such period. If such Lender pays its share of the applicable Committed 


-62-






EXECUTION VERSION 


Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed Borrowing.
Any payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Lender that shall have failed to make such payment
to the Administrative Agent.


                              (ii)
Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
time at which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the L/C Issuer, in immediately
available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.


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


                    
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds
are not made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof (subject to the
provisions of the last paragraph of Section 4.02 hereof), the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.


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


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


          2.13 Sharing of Payments by Lenders. If any
Credit Party shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of, interest on, or other
amounts with respect to, any of the Obligations resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Obligations
greater than its pro rata share thereof as provided herein
(including as in contravention of the priorities of payment set forth in
Section 8.03), then the Credit Party receiving such greater proportion shall
(a) notify the Administrative Agent of such fact, and (b) purchase (for cash at
face value) participations in the Obligations of the other Credit Parties, or
make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Credit Parties ratably and in the
priorities set forth in Section 8.03, provided that:


-63-






EXECUTION VERSION 


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (ii)
 the provisions of this Section shall not be construed to apply to (x) any
 payment made by the Loan Parties pursuant to and in accordance with the
 express terms of this Agreement (including the application of funds arising
 from the existence of a Defaulting Lender) or (y) any payment obtained by a
 Lender as consideration for the assignment of or sale of a participation in
 any of its Committed Loans or subparticipations in L/C Obligations or Swing
 Line Loans to any assignee or participant, other than to the Borrower or any
 Subsidiary thereof (as to which the provisions of this Section shall apply).

 


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


          2.14 Settlement Amongst Lenders. 


	
  

 	
  

 
	
  

 	
           (a)
 The amount of each Lender’s Applicable Percentage of outstanding Loans
 (including outstanding Swing Line Loans, shall be computed weekly (or more frequently
 in the Administrative Agent’s discretion) and shall be adjusted upward or
 downward based on all Loans (including Swing Line Loans) and repayments of
 Loans (including Swingline Loans) received by the Administrative Agent as of
 3:00 p.m. on the first Business Day (such date, the “Settlement Date”)
 following the end of the period specified by the Administrative Agent.

 
	
  

 	
  

 
	
  

 	
           (b)
 The Administrative Agent shall deliver to each of the Lenders promptly after
 a Settlement Date a summary statement of the amount of outstanding Committed
 Loans and Swing Line Loans for the period and the amount of repayments
 received for the period. As reflected on the summary statement, (i) the
 Administrative Agent shall transfer to each Lender its Applicable Percentage
 of repayments, and (ii) each Lender shall transfer to the Administrative
 Agent (as provided below) or the Administrative Agent shall transfer to each
 Lender, such amounts as are necessary to insure that, after giving effect to
 all such transfers, the amount of Committed Loans made by each Lender shall
 be equal to such Lender’s Applicable Percentage of all Committed Loans
 outstanding as of such Settlement Date. If the summary statement requires
 transfers to be made to the Administrative Agent by the Lenders and is
 received prior to 1:00 p.m. on a Business Day, such transfers shall be made
 in immediately available funds no later than 3:00 p.m. that day; and, if
 received after 1:00 p.m., then no later than 3:00 p.m. on the next Business
 Day. The obligation of each Lender to transfer such funds is irrevocable,
 unconditional and without recourse to or warranty by the Administrative
 Agent. If and to the extent any Lender shall not have so made its transfer to
 the Administrative Agent, such Lender agrees to pay to the Administrative
 Agent, forthwith on demand such amount, together with interest thereon, for
 each day from such date until the date such amount is paid to the Administrative
 Agent, equal to the greater of the Federal Funds Rate and a rate determined
 by the Administrative Agent in accordance with banking industry rules on
 interbank compensation plus any administrative, processing, or similar fees
 customarily charged by the Administrative Agent in connection with the
 foregoing.

 


          2.15
Increase in Commitments. 


-64-






EXECUTION VERSION 


                    (a)
Request for Increase. Provided no Default or Event of Default then
exists or would arise therefrom, upon notice to the Administrative Agent (which
shall promptly notify the Lenders), the Borrower may from time to time, request
an increase in the Aggregate Commitments by an amount (for all such requests)
not exceeding $200,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $15,000,000, (ii) the Borrower may
make a maximum of four such requests, and (iii) such increase shall be on the
same terms as those set forth in this Agreement. At the time of sending such
notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders). 


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


                    (c)
Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall promptly notify the Borrower and each Lender of the
Lenders’ responses to each request made hereunder. To achieve the full amount
of a requested increase and subject to the approval of the Administrative
Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld), to the extent that the existing Lenders decline to
increase their Commitments, or decline to increase their Commitments to the
amount requested by the Borrower, the Administrative Agent, in consultation
with the Borrower, will provide the consenting Lenders with an opportunity to
further increase their Commitments in the amount equal to the total amount
requested by the Borrower and will use its reasonable efforts to arrange for
other Eligible Assignees to become a Lender hereunder and to issue commitments
in an amount equal to the amount of the increase in the Aggregate Commitments
requested by the Borrower and not accepted by the existing Lenders (and the
Borrower may also invite additional Eligible Assignees to become Lenders) (such
Lenders which increase their Commitments and such additional Lenders, the “Additional
Commitment Lenders”), provided, however, that
without the consent of the Administrative Agent, at no time shall the
Commitment of any Additional Commitment Lender be less than $5,000,000. 


                    
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent, in
consultation with the Borrower, shall determine the effective date (the “Increase
Effective Date”) and the final allocation of such increase. The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
final allocation of such increase and the Increase Effective Date and on the
Increase Effective Date (i) the Aggregate Commitments under, and for all
purposes of, this Agreement shall be increased by the aggregate amount of such
Commitment Increases, and (ii) Schedule 2.01 shall be deemed modified,
without further action, to reflect the revised Commitments and Applicable
Percentages of the Lenders. 


                    
(e) Conditions to Effectiveness of Increase. As a condition precedent to
such increase, (i) the Borrower shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date signed
by a Responsible Officer of such Loan Party (A) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and (B) in the case of the Borrower, certifying that, before and
after giving effect to such increase, the representations and warranties
contained in Article V 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 except that for
purposes of this Section 2.15, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to 


-65-






EXECUTION VERSION 



clauses (a) and (b), respectively, of Section 6.01, (ii) the Borrower,
the Administrative Agent, and any Additional Commitment Lender shall have
executed and delivered a Joinder Agreement; (iii) the Borrower shall have paid
such fees and other compensation to the Additional Commitment Lenders as the
Borrower and such Additional Commitment Lenders shall agree; (iv) the Borrower
shall have paid such arrangement fees to the Administrative Agent as the
Borrower and the Administrative Agent may agree; (v) the Borrower and the
Additional Commitment Lender shall have delivered such other instruments,
documents and agreements as the Administrative Agent may reasonably have
requested; and (vi) no Default exists. The Borrower shall prepay any Committed
Loans outstanding on the Increase Effective Date (and pay any additional
amounts required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Applicable Percentages
arising from any nonratable increase in the Commitments under this Section.


                    
(f) Conflicting Provisions. This Section shall supersede any provisions
in Sections 2.13 or 10.01 to the contrary.


          2.16 Defaulting Lenders.


	
  

 	
  

 
	
  

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

 





	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (i)
 Waivers and Amendments. Such Defaulting Lender’s right to approve or
 disapprove any amendment, waiver or consent with respect to this Agreement
 shall be restricted as set forth in the definition of “Required Lenders” and
 Section 10.01.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (ii)
 Defaulting Lender Waterfall. Any payment of principal, interest, fees
 or other amounts received by the Administrative Agent for the account of such
 Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
 Article VIII or otherwise) or received by the Administrative Agent from a
 Defaulting Lender pursuant to Section 10.08 shall be applied at such time or
 times as may be determined by the Administrative Agent as follows: first, to
 the payment of any amounts owing by such Defaulting Lender to the
 Administrative Agent hereunder; second, to the payment on a pro rata basis of
 any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line
 Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting
 Exposure with respect to such Defaulting Lender in accordance with Section
 2.03(g); fourth, as the Borrower may request (so long as no Default or Event
 of Default exists), to the funding of any Loan in respect of which such
 Defaulting Lender has failed to fund its portion thereof as required by this
 Agreement, as determined by the Administrative Agent; fifth, if so determined
 by the Administrative Agent and the Borrower, to be held in a deposit account
 and released pro rata in order to (x) satisfy such Defaulting Lender’s
 potential future funding obligations with respect to Loans under this Agreement
 and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with
 respect to such Defaulting Lender with respect to future Letters of Credit
 issued under this Agreement in accordance with Section 2.03(g); sixth,
 to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing
 Line Lender as a result of any judgment of a court of competent jurisdiction
 obtained by any Lender, the L/C Issuer or the Swing Line Lender against such
 Defaulting Lender as a result of such Defaulting Lender’s breach of its
 obligations under this Agreement; seventh, so long as no Default or Event of
 Default exists, to the payment of any amounts owing to the Borrower as a
 result of any judgment of a court of competent jurisdiction obtained by the
 Borrower against such Defaulting Lender as a result of such Defaulting
 Lender’s breach of its obligations under this

 


-66-






EXECUTION VERSION 


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Agreement;
 and eighth, to such Defaulting Lender or as otherwise directed by a court of
 competent jurisdiction; provided that if (x) such payment is a payment
 of the principal amount of any Loans or L/C Borrowings in respect of which
 such Defaulting Lender has not fully funded its appropriate share, and (y)
 such Loans were made or the related Letters of Credit were issued at a time
 when the conditions set forth in Section 4.02 were satisfied or waived, such
 payment shall be applied solely to pay the Loans of, and L/C Obligations owed
 to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to
 the payment of any Loans of, or L/C Obligations owed to, such Defaulting
 Lender until such time as all Loans and funded and unfunded participations in
 L/C Obligations and Swing Line Loans are held by the Lenders pro rata in
 accordance with the Commitments hereunder without giving effect to Section
 2.16(a)(iv). Any payments, prepayments or other amounts paid or payable to a
 Defaulting Lender that are applied (or held) to pay amounts owed by a
 Defaulting Lender or to post Cash Collateral pursuant to this Section
 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
 and each Lender irrevocably consents hereto.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (iii) Certain Fees.

 





	
  

 	
  

 
	
  

 	
                               (A)
 No Defaulting Lender shall be entitled to receive any commitment fee payable
 under Section 2.09(a) for any period during which that Lender is a Defaulting
 Lender (and the Borrower shall not be required to pay any such fee that
 otherwise would have been required to have been paid to that Defaulting
 Lender).

 
	
  

 	
  

 
	
  

 	
                               (B)
 Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for
 any period during which that Lender is a Defaulting Lender only to the extent
 allocable to its Applicable Percentage of the stated amount of Letters of Credit
 for which it has provided Cash Collateral pursuant to the terms hereof in
 accordance with Section 2.03(g).

 
	
  

 	
  

 
	
  

 	
                               (C)
 With respect to any commitment fee payable under Section 2.09(a) or any
 Letter of Credit Fee not required to be paid to any Defaulting Lender
 pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each
 Non-Defaulting Lender that portion of any such fee otherwise payable to such
 Defaulting Lender with respect to such Defaulting Lender’s participation in
 L/C Obligations or Swing Line Loans that has been reallocated to such
 Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the L/C
 Issuer and Swing Line Lender, as applicable, the amount of any such fee
 otherwise payable to such Defaulting Lender to the extent allocable to such
 L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting
 Lender, and (z) not be required to pay the remaining amount of any such fee.

 





	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (iv)
 Reallocation of Applicable Percentages to Reduce Fronting Exposure.
 All or any part of such Defaulting Lender’s participation in L/C Obligations
 and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in
 accordance with their respective Applicable Percentages (calculated without
 regard to such Defaulting Lender’s Commitment) but only to the extent that
 (x) the conditions set forth in Section 4.02 are satisfied at the time of
 such reallocation (and, unless the Borrower shall have otherwise notified the
 Administrative Agent at such time, the Borrower shall be deemed to have
 represented and warranted that such conditions are satisfied at such time),
 and (y) such reallocation does not cause the aggregate Credit Extensions of
 any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.
 No reallocation hereunder shall constitute a waiver or release of any claim
 of any party hereunder against a Defaulting Lender arising from that Lender
 having become a Defaulting Lender, 

 


-67-






EXECUTION VERSION 


	
  

 	
  

 	
 including any claim of a
 Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased
 exposure following such reallocation.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (v)
 Cash Collateral, Repayment of Swing Line Loans. If the reallocation
 described in clause (a)(iv) above cannot, or can only partially, be effected,
 the Borrower shall, without prejudice to any right or remedy available to it
 hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an
 amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second,
 Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the
 procedures set forth in Section 2.03(g).

 






	
  

 	
  

 
	
  

 	
           (b)
 Defaulting Lender Cure. If the Borrower, the Administrative Agent,
 Swing Line Lender and the L/C Issuer agree in writing that a Lender is no
 longer a Defaulting Lender, the Administrative Agent will so notify the
 parties hereto, whereupon as of the effective date specified in such notice
 and subject to any conditions set forth therein (which may include
 arrangements with respect to any Cash Collateral), that Lender will, to the
 extent applicable, purchase at par that portion of outstanding Loans of the
 other Lenders or take such other actions as the Administrative Agent may
 determine to be necessary to cause the Committed Loans and funded and
 unfunded participations in Letters of Credit and Swing Line Loans to be held
 on a pro rata basis by the Lenders in accordance with their Applicable
 Percentages (without giving effect to Section 2.16(a)(iv)), whereupon such
 Lender will cease to be a Defaulting Lender; provided that no adjustments
 will be made retroactively with respect to fees accrued or payments made by
 or on behalf of the Borrower while that Lender was a Defaulting Lender; and
 provided, further, that except to the extent otherwise expressly agreed by
 the affected parties, no change hereunder from Defaulting Lender to Lender
 will constitute a waiver or release of any claim of any party hereunder
 arising from that Lender’s having been a Defaulting Lender.

 


ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY


          3.01 Taxes. 


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (a)
 Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (i)
 Any and all payments by or on account of any obligation of any Loan Party
 under any Loan Document shall be made without deduction or withholding for
 any Taxes, except as required by applicable Laws. If any applicable Laws (as
 determined in the good faith discretion of the Administrative Agent) require
 the deduction or withholding of any Tax from any such payment by the
 Administrative Agent or a Loan Party, then the Administrative Agent or such
 Loan Party shall be entitled to make such deduction or withholding, upon the
 basis of the information and documentation to be delivered pursuant to
 subsection (e) below.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (ii)
 If any Loan Party or the Administrative Agent shall be required by the Code
 to withhold or deduct any Taxes, including both United States Federal backup
 withholding and withholding taxes, from any payment, then (A) the
 Administrative Agent shall withhold or make such deductions as are determined
 by the Administrative Agent to be required based upon the information and
 documentation it has received pursuant to subsection (e) below, (B) the
 Administrative Agent shall timely pay the full 

 


-68-






EXECUTION VERSION 


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 amount
 withheld or deducted to the relevant Governmental Authority in accordance
 with the Code, and (C) to the extent that the withholding or deduction is
 made on account of Indemnified Taxes, the sum payable by the applicable Loan
 Party shall be increased as necessary so that after any required withholding
 or the making of all required deductions (including deductions applicable to
 additional sums payable under this Section 3.01) the applicable Recipient
 receives an amount equal to the sum it would have received had no such
 withholding or deduction been made.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (iii)
 If any Loan Party or the Administrative Agent shall be required by any
 applicable Laws other than the Code to withhold or deduct any Taxes from any
 payment, then (A) such Loan Party or the Administrative Agent, as required by
 such Laws, shall withhold or make such deductions as are determined by it to
 be required based upon the information and documentation it has received
 pursuant to subsection (e) below, (B) such Loan Party or the Administrative
 Agent, to the extent required by such Laws, shall timely pay the full amount
 withheld or deducted to the relevant Governmental Authority in accordance
 with such Laws, and (C) to the extent that the withholding or deduction is
 made on account of Indemnified Taxes, the sum payable by the applicable Loan
 Party shall be increased as necessary so that after any required withholding
 or the making of all required deductions (including deductions applicable to
 additional sums payable under this Section 3.01) the applicable Recipient
 receives an amount equal to the sum it would have received had no such
 withholding or deduction been made.

 
	
  

 	
  

 	
  

 
	
  

 	
           (b)
 Payment of Other Taxes by the Borrower. Without limiting the
 provisions of subsection (i) above, the Borrower shall timely pay any Other
 Taxes to the relevant Governmental Authority in accordance with applicable
 Law, or at the option of the Administrative Agent, timely reimburse it for
 the payment of any Other Taxes.

 
	
  

 	
  

 	
  

 
	
  

 	
           (c)
 Tax Indemnifications.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (i)
 Each of the Loan Parties shall, and does hereby, jointly and severally
 indemnify each Recipient, and shall make payment in respect thereof within
 ten (10) days after demand therefor, for the full amount of any Indemnified
 Taxes (including Indemnified Taxes imposed or asserted on or attributable to
 amounts payable under this Section 3.01) payable or paid by such Recipient or
 required to be withheld or deducted from a payment to such Recipient, 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 Governmental Authority. A certificate as
 to the amount of such payment or liability delivered to the Borrower by a
 Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
 Administrative Agent on its own behalf or on behalf of a Lender or the L/C
 Issuer, shall be conclusive absent manifest error.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (ii)
 Each Lender and the L/C Issuer shall, and does hereby, severally indemnify,
 and shall make payment in respect thereof within ten (10) days after demand
 therefor, (x) the Administrative Agent against any Indemnified Taxes
 attributable to such Lender or the L/C Issuer (but only to the extent that
 any Loan Party has not already indemnified the Administrative Agent for such
 Indemnified Taxes and without limiting the obligation of the Loan Parties to
 do so) and (y) the Administrative Agent and the Loan Parties, as applicable,
 against any Excluded Taxes attributable to such Lender or the L/C Issuer, in
 each case, that are payable or paid by the Administrative Agent or a Loan
 Party in connection with any Loan Document, and any reasonable expenses
 arising 

 


-69-






EXECUTION VERSION 


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 therefrom
 or with respect thereto, whether or not such Taxes were correctly or legally
 imposed or asserted by the relevant Governmental Authority. A certificate as
 to the amount of such payment or liability delivered to any Lender by the
 Administrative Agent shall be conclusive absent manifest error. Each Lender
 and the L/C Issuer hereby authorizes the Administrative Agent to set off and
 apply any and all amounts at any time owing to such Lender or the L/C Issuer,
 as the case may be, under this Agreement or any other Loan Document against
 any amount due to the Administrative Agent under this clause (ii).

 
	
  

 	
  

 	
  

 
	
  

 	
           (d)
 Evidence of Payments. Upon request by the Borrower or the
 Administrative Agent, as the case may be, after any payment of Taxes by the
 Borrower or by the Administrative Agent to a Governmental Authority as
 provided in this Section 3.01, the Borrower shall deliver to the
 Administrative Agent or the Administrative Agent shall deliver to the
 Borrower, as the case may be, the original or a certified copy of a receipt
 issued by such Governmental Authority evidencing such payment, a copy of any
 return required by Laws to report such payment or other evidence of such
 payment reasonably satisfactory to the Borrower or the Administrative Agent,
 as the case may be.

 
	
  

 	
  

 	
  

 
	
  

 	
           (e)
 Status of Lenders; Tax Documentation.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (i)
 Any Lender that is entitled to an exemption from or reduction of withholding
 Tax with respect to payments made under any Loan Document shall deliver to
 the Borrower and the Administrative Agent, at the time or times reasonably
 requested by the Borrower or the Administrative Agent, such properly
 completed and executed documentation reasonably requested by the Borrower or
 the Administrative Agent as will permit such payments to be made without
 withholding or at a reduced rate of withholding. In addition, any Lender, if
 reasonably requested by the Borrower or the Administrative Agent, shall
 deliver such other documentation prescribed by applicable law or reasonably
 requested by the Borrower or the Administrative Agent as will enable the
 Borrower or the Administrative Agent to determine whether or not such Lender
 is subject to backup withholding or information reporting requirements.
 Notwithstanding anything to the contrary in the preceding two sentences, the
 completion, execution and submission of such documentation (other than such
 documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below)
 shall not be required if in the Lender’s reasonable judgment such completion,
 execution or submission would subject such Lender to any material
 unreimbursed cost or expense or would materially prejudice the legal or
 commercial position of such Lender.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (ii)
 Without limiting the generality of the foregoing, in the event that the
 Borrower is a U.S. Person,

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
           (A)
 any Lender that is a U.S. Person shall deliver to the Borrower and the
 Administrative Agent on or prior to the date on which such Lender becomes a
 Lender under this Agreement (and from time to time thereafter upon the
 reasonable request of the Borrower or the Administrative Agent), executed
 originals of IRS Form W-9 certifying that such Lender is exempt from U.S.
 federal backup withholding tax; 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
           (B)
 any Foreign Lender shall, to the extent it is legally entitled to do so,
 deliver to the Borrower and the Administrative Agent (in such number of
 copies as shall be requested by the recipient) on or prior to the date on
 which 

 


-70-






EXECUTION VERSION 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 such
 Foreign Lender becomes a Lender under this Agreement (and from time to time
 thereafter upon the reasonable request of the Borrower or the Administrative
 Agent), whichever of the following is applicable:

 





	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
           (I)
 in the case of a Foreign Lender claiming the benefits of an income tax treaty
 to which the United States is a party (x) with respect to payments of
 interest under any Loan Document, executed originals of IRS Form W-8BEN
 establishing an exemption from, or reduction of, U.S. federal withholding Tax
 pursuant to the “interest” article of such tax treaty and (y) with respect to
 any other applicable payments under any Loan Document, IRS Form W-8BEN
 establishing an exemption from, or reduction of, U.S. federal withholding Tax
 pursuant to the “business profits” or “other income” article of such tax
 treaty;

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
           (II)
 executed originals of IRS Form W-8ECI;

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
           (III)
 in the case of a Foreign Lender claiming the benefits of the exemption for
 portfolio interest under Section 881(c) of the Code, (x) a certificate to the
 effect that such Foreign Lender is not a “bank” within the meaning of Section
 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within
 the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation”
 described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance
 Certificate”) and (y) executed originals of IRS Form W-8BEN; or

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
           (IV)
 to the extent a Foreign Lender is not the beneficial owner, executed
 originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
 W-8BEN, a U.S. Tax Compliance Certificate IRS Form W-9, and/or other
 certification documents from each beneficial owner, as applicable; provided
 that if the Foreign Lender is a partnership and one or more direct or
 indirect partners of such Foreign Lender are claiming the portfolio interest
 exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate
 on behalf of each such direct and indirect partner;

 





	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
           (C)
 any Foreign Lender shall, to the extent it is legally entitled to do so,
 deliver to the Borrower and the Administrative Agent (in such number of
 copies as shall be requested by the recipient) on or prior to the date on
 which such Foreign Lender becomes a Lender under this Agreement (and from
 time to time thereafter upon the reasonable request of the Borrower or the
 Administrative Agent), executed originals of any other form prescribed by
 applicable Law as a basis for claiming exemption from or a reduction in U.S.
 federal withholding Tax, duly completed, together with such supplementary
 documentation as may be prescribed by applicable law to permit the Borrower
 or the Administrative Agent to determine the withholding or deduction
 required to be made; and

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
           (D)
 if a payment made to a Lender under any Loan Document would be subject to
 U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to
 comply with the applicable reporting requirements of FATCA (including those
 contained in Section 1471(b) or 1472(b) of the Code, as applicable), such
 Lender shall deliver to the Borrower and the Administrative 

 


-71-






EXECUTION VERSION 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Agent
 at the time or times prescribed by law and at such time or times reasonably
 requested by the Borrower or the Administrative Agent such documentation
 prescribed by applicable law (including as prescribed by Section
 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
 requested by the Borrower or the Administrative Agent as may be necessary for
 the Borrower and the Administrative Agent to comply with their obligations
 under FATCA and to determine that such Lender has complied with such Lender’s
 obligations under FATCA or to determine the amount to deduct and withhold
 from such payment. Solely for purposes of this clause (D), “FATCA” shall
 include any amendments made to FATCA after the date of this Agreement.

 





	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (iii)
 Each Lender agrees that if any form or certification it previously delivered
 pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in
 any respect, it shall update such form or certification or promptly notify
 the Borrower and the Administrative Agent in writing of its legal inability
 to do so.

 





	
  

 	
  

 
	
  

 	
           (f)
 Treatment of Certain Refunds. Unless required by applicable Laws, at no time
 shall the Administrative Agent have any obligation to file for or otherwise
 pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay
 to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted
 from funds paid for the account of such Lender or the L/C Issuer, as the case
 may be. If any Recipient determines, in its sole discretion exercised in good
 faith, that it has received a refund of any Taxes as to which it has been
 indemnified by any Loan Party or with respect to which any Loan Party has
 paid additional amounts pursuant to this Section 3.01, it shall pay to the
 Loan Party an amount equal to such refund (but only to the extent of
 indemnity payments made, or additional amounts paid, by a Loan Party under
 this Section 3.01 with respect to the Taxes giving rise to such refund), net
 of all out-of-pocket expenses (including Taxes) incurred by such Recipient,
 and without interest (other than any interest paid by the relevant
 Governmental Authority with respect to such refund), provided that the Loan
 Party, upon the request of the Recipient, agrees to repay the amount paid
 over to the Loan Party (plus any penalties, interest or other charges imposed
 by the relevant Governmental Authority) to the Recipient in the event the
 Recipient is required to repay such refund to such Governmental Authority.
 Notwithstanding anything to the contrary in this subsection, in no event will
 the applicable Recipient be required to pay any amount to the Loan Party
 pursuant to this subsection the payment of which would place the Recipient in
 a less favorable net after-Tax position than such Recipient would have been
 in if the indemnification payments or additional amounts giving rise to such
 refund had never been paid. This subsection shall not be construed to require
 any Recipient to make available its tax returns (or any other information
 relating to its taxes that it deems confidential) to any Loan Party or any
 other Person.

 
	
  

 	
  

 
	
  

 	
           (g)
 Survival. Each party’s obligations under this Section 3.01 shall
 survive the resignation or replacement of the Administrative Agent or any
 assignment of rights by, or the replacement of, a Lender or the L/C Issuer,
 the termination of the Commitments and the repayment, satisfaction or
 discharge of all other Obligations.

 


          3.02 Illegality. If any Lender determines
that any Law has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending Office
to make, maintain or fund LIBOR Rate Loans, or to determine or charge interest
rates based upon the LIBOR Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to make or continue LIBOR Rate Loans or to convert
Base Rate Loans to LIBOR Rate Loans shall be 


-72-






EXECUTION VERSION 


suspended
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable, convert all LIBOR Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such LIBOR
Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such LIBOR Rate Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.


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


          3.04 Increased Costs; Reserves on LIBOR Rate Loans. 


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
                     (ii)
 subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
 respect to this Agreement, any Letter of Credit, any participation in a
 Letter of Credit or any LIBOR Rate Loan made by it, or change the basis of
 taxation of payments to such Lender or the L/C Issuer in respect thereof
 (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the
 imposition of, or any change in the rate of, any Excluded Tax payable by such
 Lender or the L/C Issuer); or

 
	
  

 	
  

 
	
  

 	
                     (iii)
 impose on any Lender or the L/C Issuer or the London interbank market any
 other condition, cost or expense affecting this Agreement or LIBOR Rate Loans
 made by such Lender or any Letter of Credit or participation therein;

 


and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any LIBOR Rate Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the L/C
Issuer of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer and delivery of the certificate
contemplated by Section 3.04(c), the Borrower will pay to such Lender or the
L/C Issuer,


-73-






EXECUTION VERSION 


as the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer, as the case may be, for such additional costs incurred
or reduction suffered.


                    (b)
Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender’s or the L/C Issuer’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s or the L/C Issuer’s capital or on the capital
of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time upon
delivery of the certificate contemplated by Section 3.04(c), the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer or such
Lender’s or the L/C Issuer’s holding company for any such reduction suffered.


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


                    (d)
Delay in Requests. Failure or delay on the part of any Lender or the L/C
Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s
right to demand such compensation, provided that the Borrower shall not
be required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than six (6) months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or the L/C
Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the six-month period referred to above shall be extended to include the period
of retroactive effect thereof).


                    (e)
Reserves on LIBOR Rate Loans. The Borrower shall pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as “Eurocurrency liabilities”), additional interest on the
unpaid principal amount of each LIBOR Rate Loan equal to the actual costs of
such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 10 days’ prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.


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


-74-






EXECUTION VERSION 


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


including
any loss of anticipated profits and
any loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.


          For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall
be deemed to have funded each LIBOR Rate Loan made by it at the LIBOR Rate for
such Loan by a matching deposit or other borrowing in the London interbank
market for a comparable amount and for a comparable period, whether or not such
LIBOR Rate Loan was in fact so funded. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section and setting forth in reasonable detail the manner in which such
amount or amounts was determined shall be delivered to the Borrower.


          3.06 Mitigation Obligations; Replacement of Lenders. 


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


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


          3.07 Survival. All of the Borrower’s
obligations under this Article III shall survive termination of the
Aggregate Commitments and repayment of all other Obligations and Other
Liabilities hereunder.



-75-





ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


EXECUTION VERSION 



          4.01 Conditions of Effectiveness of Agreement. The
effectiveness of this Agreement on the Effective Date is subject to
satisfaction of the following conditions precedent:


	
  

 	
  

 
	
  

 	
           (a)
 The Administrative Agent’s receipt of the following, each of which shall be
 originals or telecopies or other electronic image scan transmission (e.g.,
 “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise
 specified, each dated the Effective Date (or, in the case of certificates of
 governmental officials, a recent date before the Effective Date) and each in
 form and substance satisfactory to the Administrative Agent:

 





	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (i)
 executed counterparts of this Agreement;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (ii)
 a Note executed by the Borrower in favor of each Lender requesting a Note;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (iii)
 certificates of resolutions or other action, incumbency certificates and/or
 other certificates of Responsible Officers of each Loan Party evidencing (A)
 the authority of each Loan Party to enter into this Agreement and the other
 Loan Documents to which such Loan Party is a party or is to be a party and
 (B) the identity, authority and capacity of each Responsible Officer thereof
 authorized to act as a Responsible Officer in connection with this Agreement
 and the other Loan Documents to which such Loan Party is a party or is to be
 a party;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (iv)
 copies of each Loan Party’s Organization Documents and such other documents
 and certifications as the Administrative Agent may reasonably require to
 evidence that each Loan Party is duly organized or formed, and that each Loan
 Party is validly existing, in good standing and qualified to engage in
 business in each jurisdiction where its ownership, lease or operation of
 properties or the conduct of its business requires such qualification, except
 to the extent that failure to so qualify in such jurisdiction could not
 reasonably be expected to have a Material Adverse Effect;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (v)
 favorable opinions of (i) Skadden, Arps, Slate, Meagher & Flom, LLP,
 counsel to the Loan Parties and (ii) general corporate counsel to the Loan
 Parties, in each case addressed to the Administrative Agent and each Lender,
 as to such matters concerning the Loan Parties and the Loan Documents as the
 Administrative Agent may reasonably request;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (vi)
 a certificate signed by a Responsible Officer of the Borrower certifying (A)
 that the conditions specified in Sections 4.02(a) and (b) have been
 satisfied, (B) that there has been no event or circumstance since the date of
 the Audited Financial Statements that has had or could be reasonably expected
 to have, either individually or in the aggregate, a Material Adverse Effect,
 (C) to the Solvency of the Loan Parties as of the Effective Date after giving
 effect to the transactions contemplated hereby and (D) that either that (1)
 no consents, licenses or approvals are required in connection with the
 execution, delivery and performance by any Loan Party, and the validity
 against such Loan Party, of the Loan Documents to which it is a party, or (2)
 that all such consents, licenses and approvals have been obtained and are in
 full force and effect;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (vii)
 evidence that all insurance required to be maintained pursuant to the Loan
 Documents and all endorsements in favor of the Agents required under the Loan
 Documents have been obtained and are in effect; 

 


-76-






EXECUTION VERSION 


	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (viii) the Security Documents and other Loan Documents
 set forth on Schedule 4.01 hereto, each duly executed by the applicable Loan Parties;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (ix) results of searches or other
 evidence reasonably satisfactory to the Collateral Agent (in each case dated
 as of a date reasonably satisfactory to the Collateral Agent) indicating the
 absence of Liens on the assets of the Loan Parties, except for Permitted
 Encumbrances and Liens for which termination statements and releases,
 satisfactions and discharges, and releases or subordination agreements
 satisfactory to the Collateral Agent are being tendered concurrently with
 such extension of credit or other arrangements satisfactory to the Collateral
 Agent for the delivery of such termination statements and releases,
 satisfactions and discharges have been made; 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (x)
 (A) duly authorized Uniform
 Commercial Code financing statements, required by law or reasonably requested
 by the Collateral Agent to be filed, registered or recorded to create or
 perfect the first priority Liens to the extent intended to be created under
 the Loan Documents and all such documents and instruments shall have been
 concurrently submitted for filing, registering or recordation or so filed,
 registered or recorded to the satisfaction of the Collateral Agent, and (B)
 the Credit Card Notifications and Blocked Account Agreements required as of
 the Effective Date pursuant to Section 6.13 hereof shall have been obtained;
 and 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (xi)
without duplication of other requirements of this Section 4.01, such other
assurances, certificates, documents, consents or opinions as are described in Schedule 4.01 hereto.  

 





	
  

 	
  

 
	
  

 	
           
 (b) After giving effect to (i) the first funding under the Loans, if any, on
 the Effective Date, (ii) the payment of all fees and other amounts due under
 the Loan Documents on the Effective Date, and (iii) all Existing Letters of
 Credit and all Letters of Credit to be issued at, or immediately subsequent
 to, such establishment, Availability shall be not less than $150,000,000.

 
	
  

 	
  

 
	
  

 	
           (c)
 The Administrative Agent shall have received a Borrowing Base Certificate
 dated the Effective Date, relating to the month ended on December 31, 2011,
 and executed by a Responsible Officer of the Borrower.

 
	
  

 	
  

 
	
  

 	
           (d)
 There shall not have occurred since January 29, 2011 any event or condition
 that has had or could be reasonably expected, either individually or in the
 aggregate, to have a Material Adverse Effect.

 
	
  

 	
  

 
	
  

 	
           (e)
 The Administrative Agent shall have received and be reasonably satisfied with
 detailed financial projections and business assumptions for the Borrower on a
 Consolidated basis, on an annual basis for each fiscal year starting with
 fiscal year 2012 through the Maturity Date, including, for the fiscal year
 2012, a consolidated income statement, a balance sheet and a statement of
 cash flow and for each fiscal year thereafter through the Maturity Date, a
 consolidated income statement.

 
	
  

 	
  

 
	
  

 	
           (f)
 There shall not be pending any litigation or other proceeding, the result of
 which, either individually or in the aggregate, could reasonably be expected
 to have a Material Adverse Effect.

 


-77-






EXECUTION VERSION 


	
  

 	
  

 
	
  

 	
           (g)
 The consummation of the transactions contemplated hereby shall not violate
 any Applicable Law or any Organization Document in any material respect.

 
	
  

 	
  

 
	
  

 	
           (h)
 All fees required to be paid by the Loan Parties to the Agents or the
 Arrangers on or before the Effective Date shall have been paid in full, and
 all fees required to be paid by the Loan Parties to the Lenders on or before
 the Effective Date shall have been paid in full.

 
	
  

 	
  

 
	
  

 	
           (i)
 The Borrower shall have paid all reasonable and documented fees, charges and
 out-of-pocket disbursements of counsel to the Administrative Agent to the
 extent invoiced prior to or on the Effective Date, plus such additional
 amounts of such reasonable and documented fees, charges and out-of-pocket
 disbursements as shall constitute its reasonable estimate of such fees,
 charges and disbursements incurred or to be incurred by it through the
 closing proceedings (provided that such estimate shall not thereafter preclude
 a final settling of accounts between the Borrower and the Administrative
 Agent).

 
	
  

 	
  

 
	
  

 	
           (j)
 The Administrative Agent shall have received all documentation and other
 information required by regulatory authorities under applicable “know your customer”
 and anti-money laundering rules and regulations, including without limitation
 the Act.

 
	
  

 	
  

 
	
  

 	
           (k)
 No changes in governmental regulations or policies materially affecting any
 Loan Party or any Credit Party with respect to the transactions contemplated
 hereby shall have occurred prior to the Effective Date. 

 


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


          4.02 Conditions to all Credit Extensions. The
obligation of each Lender to honor any Request for Credit Extension (other than
a Committed Loan Notice requesting only a conversion of Committed Loans to the
other Type, or a continuation of LIBOR Rate Loans) and of each L/C Issuer to
issue each Letter of Credit is subject to the following conditions precedent:


	
  

 	
  

 
	
  

 	
           (a)
 The representations and warranties of each Loan Party contained in Article
 V or any other Loan Document, shall be true and correct in all material
 respects on and as of the date of such Credit Extension, except (i) to the
 extent that such representations and warranties specifically refer to an
 earlier date, in which case they shall be true and correct as of such earlier
 date, (ii) any such representations which are qualified by “materiality” or
 “Material Adverse Effect” shall be true and correct in all respects, and
 (iii) except that for purposes of this Section 4.02, the representations and
 warranties contained in subsections (a) and (b) of Section 5.05 shall be
 deemed to refer to the most recent statements furnished pursuant to clauses
 (a) and (b), respectively, of Section 6.01.

 
	
  

 	
  

 
	
  

 	
           (b)
 No Default shall exist, or would result from such proposed Credit Extension
 or from the application of the proceeds thereof.

 
	
  

 	
  

 
	
  

 	
           (c)
 The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
 Lender shall have received a Request for Credit Extension in accordance with
 the requirements hereof. 

 


-78-






EXECUTION VERSION 


	
  

 	
  

 
	
  

 	
           (d)
 No event or circumstance which could reasonably be expected to result in a
 Material Adverse Effect shall have occurred.

 
	
  

 	
  

 
	
  

 	
           (e)
 After giving effect to the Credit Extension requested to be made on any such
 date and the use of proceeds thereof, Availability shall be greater than
 zero.

 


Each
Request for Credit Extension (other than a Committed Loan Notice requesting
only a conversion of Committed Loans to the other Type or a continuation of
LIBOR Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty by the Borrower to each Agent, each L/C Issuer, the
Swing Line Lender and each Lender that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension. The conditions set forth in this Section 4.02 are
for the sole benefit of the Credit Parties but until the Required Lenders otherwise
direct the Administrative Agent to cease making Committed Loans in accordance
with the terms of this Agreement, the Lenders will fund their Applicable
Percentage of all Loans and L/C Advances and participate in all Swing Line
Loans and Letters of Credit whenever made or issued, which are requested by the
Borrower and which, notwithstanding the failure of the Loan Parties to comply
with the provisions of this Article IV, agreed to by the Administrative
Agent, provided, however, the making of any such Loans or the issuance of any
Letters of Credit shall not be deemed a modification or waiver by any Credit
Party of the provisions of this Article IV on any future occasion or a
waiver of any rights or the Credit Parties as a result of any such failure to
comply.


ARTICLE V

REPRESENTATIONS AND WARRANTIES


          To induce
the Credit Parties to enter into this Agreement and to make Loans and to issue
Letters of Credit hereunder, each Loan Party represents and warrants to the
Administrative Agent and the other Credit Parties that:


          5.01 Existence, Qualification and Power. Each
Loan Party and each Subsidiary thereof (a) is a corporation, limited liability
company, partnership or limited partnership, duly organized or formed, validly
existing and, where applicable, in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all requisite governmental licenses, permits, authorizations,
consents and approvals to (i) own or lease its assets and carry on its business
and (ii) execute, deliver and perform its obligations under the Loan Documents
to which it is a party, and (c) is duly qualified and is licensed and, where
applicable, in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification or license; except in each case referred to in
clause (a) (as it relates to any Immaterial Subsidiary), (b)(i) or (c), to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect. Schedule 5.01 annexed hereto sets forth, as of
the Effective Date, each Loan Party’s name as it appears in official filings in
its state of incorporation or organization, its state of incorporation or
organization, organization type, and organization number, if any, issued by its
state of incorporation or organization, and its federal employer identification
number.


          5.02 Authorization; No Contravention. The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is a party has been duly authorized by all necessary
corporate or other organizational action, and does not and will not (a)
contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach, termination, or contravention of, or
constitute a default under, or require any payment to be made under (i) any
Material Indebtedness to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject that would reasonably be
expected to result


-79-







EXECUTION VERSION 


in a Material Adverse Effect; (c) result in or require the creation of
any Lien upon any asset of any Loan Party (other than Liens in favor of the
Collateral Agent under the Loan Documents); or (d) violate any Law in any
material respect. 


          5.03 Governmental
Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document, except
for (a) the perfection or maintenance of the Liens created under the Security
Documents (including the first priority nature thereof to the extent specified
in the Security Agreement) or (b)such
as have been obtained or made and are in full force and effect. 


          5.04 Binding Effect. This
Agreement has been, and each other Loan Document, when delivered, will have
been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party that is party thereto in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law. 


          5.05 Financial Statements;
No Material Adverse Effect. 


                    (a) The Audited Financial Statements (i)
were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; and (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as
of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein and other than
public disclosures made pursuant to press releases and public filings prior to
the Effective Date. 


                    (b) The unaudited Consolidated balance
sheet of the Borrower and its Subsidiaries dated October 29, 2011, and the
related Consolidated statements of income or operations, Shareholders’ Equity
and cash flows for the Fiscal Year ended on that date (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly present in all
material respects the financial condition of the Borrower and its Subsidiaries
as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments. Schedule 5.05 sets forth
all Material Indebtedness of the Loan Parties and their Consolidated
Subsidiaries as of the date of such financial statements.  


                    (c) No event shall have occurred after
January 29, 2011 that could reasonably be expected to have a Material Adverse
Effect. 


                    (d) The Consolidated forecasted balance sheet and statements of income and cash
flows of the Borrower and its Subsidiaries delivered pursuant to Section
6.01(d) were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions existing at the
time of delivery of such forecasts, and represented, at the time of delivery,
the Loan Parties’ reasonable estimate of its future financial performance (it
being understood that such forecasted financial information is subject to
significant uncertainties and contingencies, many of which are beyond the
control of the Loan Parties, that no assurance is given that any particular
forecasts will be realized, that actual results may differ and that such
differences may be material). 


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EXECUTION VERSION 


          5.06 Litigation. There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Loan Parties, threatened at law, in equity, in arbitration or
before any Governmental Authority, by or against any Loan Party or any of its
Subsidiaries or against any of its properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) except as disclosed in Schedule
5.06, either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect. 


          5.07 No Default. No
Loan Party or any Subsidiary is in default under or with respect to any
Material Indebtedness. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document. 


          5.08 Ownership of
Property; Liens. (a) Each of the Loan Parties and each Subsidiary thereof
has good record and marketable title in fee simple to or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of
its business, except for such defects in title as could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Each
of the Loan Parties and each Subsidiary has good and marketable title to, valid
leasehold interests in, or valid licenses to use all personal property and
assets material to the ordinary conduct of its business, except as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. 


                    (b) The Due Diligence Certificate sets
forth the address (including street address, county and state) of all Real
Estate that is owned by the Loan Parties, together with a list of the holders
of any mortgage or other Lien thereon as of the Effective Date. Each Loan Party
and each of its Subsidiaries has good, marketable and insurable fee simple
title to the real property owned by such Loan Party or such Subsidiary, free
and clear of all Liens, other than Permitted Encumbrances and except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Due Diligence Certificate sets
forth the address (including street address, county and state) of all Leases of
the Loan Parties in effect as of the Effective Date, together with a list of
the lessor and its contact information with respect to each such Lease as of
the Effective Date. To the knowledge of the Loan Parties, each of such Leases
is in full force and effect and the Loan Parties are not in default of the
terms thereof except, in each case, as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. 


                    (c) Schedule 7.01 sets forth a
complete and accurate list of all effective Liens on the property or assets of
each Loan Party and each of its Subsidiaries (other than Excluded Property as
defined in the Security Agreement) in an amount in excess of $100,000, showing
as of the Effective Date the lienholder thereof, the principal amount of the
obligations secured thereby and the property or assets of such Loan Party or
such Subsidiary subject thereto. The property of each Loan Party and each of
its Subsidiaries is subject to no Liens, other than Permitted Encumbrances. 


                    (d) Schedule 7.03 sets forth a
complete and accurate list of all Indebtedness in an amount in excess of
$100,000 of each Loan Party or any Subsidiary of a Loan Party on the Effective
Date, showing as of the date hereof the amount, obligor or issuer and maturity
thereof. 


          5.09 Environmental
Compliance. Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and except as
specifically disclosed in Schedule 5.09: 


	
  

 	
  

 
	
  

 	
           
 (a) No Loan Party or any
 Subsidiary thereof (i) has failed to comply with any Environmental Law or to
 obtain, maintain or comply with any permit, license or other approval
 required under any Environmental Law, (ii) has become subject to any
 Environmental Liability, 

 


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EXECUTION VERSION 


	
  

 	
  

 
	
  

 	
 (iii) has received notice of any claim with respect to any
 Environmental Liability or (iv) knows of any basis for any Environmental
 Liability. 

 





	
  

 	
  

 
	
  

 	
           (b) None of the properties currently
 or formerly owned or operated by any Loan Party or any Subsidiary thereof is
 listed or proposed for listing on the NPL or on the CERCLIS or any analogous
 foreign, state or local list or is adjacent to any such property; there are
 no and never have been any underground or above-ground storage tanks or any
 surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
 Materials are being or have been treated, stored or disposed on any property
 currently owned or operated by any Loan Party or any Subsidiary thereof;
 there is no asbestos or asbestos-containing material on any property
 currently owned or operated by any Loan Party or Subsidiary thereof; and to
 the knowledge of the Loan Parties, Hazardous Materials have not been
 released, discharged or disposed of on any property currently or formerly
 owned or operated by any Loan Party or any Subsidiary thereof. 

 
	
  

 	
  

 
	
  

 	
           (c) No Loan Party or any Subsidiary
 thereof is undertaking, and no Loan Party or any Subsidiary thereof has
 completed, either individually or together with other potentially responsible
 parties, any investigation or assessment or remedial or response action
 relating to any actual or threatened release, discharge or disposal of
 Hazardous Materials at any site, location or operation, either voluntarily or
 pursuant to the order of any Governmental Authority or the requirements of
 any Environmental Law; and all Hazardous Materials generated, used, treated,
 handled or stored at, or transported to or from, any property currently or
 formerly owned or operated by any Loan Party or any Subsidiary thereof have
 been disposed of in a manner not reasonably expected to result in material
 liability to any Loan Party or any Subsidiary thereof. 

 


          5.10 Insurance. The
properties of the Loan Parties and their Subsidiaries are insured with
financially sound and reputable insurance companies (or otherwise reasonably
acceptable to the Administrative Agent) which are not Affiliates of the Loan
Parties (or through self-insurance arrangements), in such amounts (after giving
effect to any self-insurance), with such deductibles and covering such risks
(including, without limitation, worker’s compensation, public liability,
business interruption and property damage insurance) as are customarily carried
by companies engaged in similar businesses and owning similar properties in
localities where the Loan Parties or the applicable Subsidiary operates. The
Due Diligence Certificate sets forth a description of all insurance maintained
by or on behalf of the Loan Parties as of the Effective Date and the
Administrative Agent and the Lenders acknowledge that such insurance and the
insurance carriers are acceptable as of the Effective Date. As of the Effective
Date, each insurance policy listed in the Due Diligence Certificate in full
force and effect and all premiums in respect thereof that are due and payable
have been paid. 


          5.11 Taxes. The Loan
Parties and their Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except (a) those which are being contested in good faith by
appropriate proceedings being diligently conducted, for which adequate reserves
have been provided in accordance with GAAP, as to which Taxes no Liens (other
than Permitted Encumbrances on account thereof) have been filed and which
contest effectively suspends the collection of the contested obligation and the
enforcement of any Lien securing such obligation, or (b) which would not be
reasonably expected to result in a Material Adverse Effect. 


          5.12 ERISA Compliance.


                    (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state laws. Each Pension Plan that is intended to be a qualified 


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EXECUTION VERSION


plan under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service to the effect that the
form of such Pension Plan is qualified under Section 401(a) of the Code and the
trust related thereto has been determined by the Internal Revenue Service to be
exempt from federal income tax under Section 501(a) of the Code, or an
application for such a letter is currently being processed by the Internal
Revenue Service. To the best knowledge of the Borrower, nothing has occurred
that would prevent or cause the loss of such tax-qualified status. 


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


                    (c) (i) No ERISA Event has occurred, and
neither the Borrower nor any ERISA Affiliate is aware of any fact, event or
circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any Pension Plan; (ii) the Borrower and each ERISA
Affiliate has met all applicable requirements under the Pension Funding Rules
in respect of each Pension Plan, and no waiver of the minimum funding standards
under the Pension Funding Rules has been applied for or obtained; (iii) as of
the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 80% or
higher and neither the Borrower nor any ERISA Affiliate knows of any facts or
circumstances that could reasonably be expected to cause the funding target
attainment percentage for any such plan to drop below 80% as of the most recent
valuation date; (iv) neither the Borrower nor any ERISA Affiliate has incurred
any liability to the PBGC other than for the payment of premiums, and there are
no premium payments which have become due that are unpaid; (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan
has been terminated by the plan administrator thereof nor by the PBGC, and no
event or circumstance has occurred or exists that could reasonably be expected
to cause the PBGC to institute proceedings under Title IV of ERISA to terminate
any Pension Plan. 


          5.13 Subsidiaries;
Equity Interests. As of the Effective Date, the Loan Parties have no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.13, which Schedule sets forth the legal name, jurisdiction of
incorporation or formation of each such Subsidiary. All of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid
and non-assessable and, as of the Effective Date, are owned by a Loan Party (or
a Subsidiary of a Loan Party) in the amounts specified on Part (a) of Schedule
5.13 free and clear of all Liens other than Permitted Encumbrances. Except
as set forth in Schedule 5.13, as of the Effective Date, there are no
outstanding rights to purchase any Equity Interests in any Subsidiary. All of
the outstanding Equity Interests in the Loan Parties have been validly issued,
and are fully paid and non-assessable and are owned in the amounts specified on
Part (b) of Schedule 5.13 free and clear of all Liens other than Permitted
Encumbrances. The copies of the Organization Documents of each Loan Party and
each amendment thereto provided pursuant to Section 4.01 are true and correct
copies of each such document, each of which is valid and in full force and
effect. Neither Foot Locker Australia, Inc. nor Foot Locker New Zealand, Inc.
maintains any assets of the type included in the Borrowing Base (other than any
immaterial assets of a de minimus nature) in the United States.  


          5.14 Margin Regulations;
Investment Company Act. 


                    (a) None of the proceeds of the Credit
Extensions shall be used directly or indirectly for any purpose that would
entail a violation of Regulations T, U, or X issued by the FRB. 


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EXECUTION VERSION 


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



          5.15 Disclosure. No
report, financial statement, certificate or other information previously or
hereafter furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (excluding projected financial information and general industry
data) (in each case, as modified or supplemented by other information so
furnished (including public disclosures made pursuant to press releases and
public filings prior to the Effective Date) and when taken as a whole) contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not materially misleading; provided that, with respect
to projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time (it being understood that such projected financial
information is subject to significant uncertainties and contingencies, many of
which are beyond the control of the Loan Parties, that no assurance is given
that any particular projections will be realized, that actual results may
differ and that such differences may be material). 


          5.16 Compliance with
Laws. Each of the Loan Parties and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect. 


          5.17 Intellectual
Property Except, in each case, as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, the Loan Parties
and their Subsidiaries own, or possess the right to use, all of the
Intellectual Property that is reasonably necessary for the operation of their
respective businesses. Except, in each case, as could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
to the knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed by any
Loan Party or any Subsidiary infringes upon any Intellectual Property rights
held by any other Person, and except as disclosed in Schedule 5.17, no
claim or litigation regarding any of the foregoing is pending or, to the
knowledge of the Borrower, threatened against any Loan Party or Subsidiary,
which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. 


          5.18 Labor Matters.


          There are
no strikes, lockouts, slowdowns or other material labor disputes against any
Loan Party or any Subsidiary thereof pending or, to the knowledge of any Loan
Party, threatened. The hours worked by and payments made to employees of the
Loan Parties comply with the Fair Labor Standards Act and any other applicable
federal, state, local or foreign Law dealing with such matters, except to the
extent that any such violation could not reasonably be expected to have a
Material Adverse Effect. No Loan Party or any of its Subsidiaries has incurred
any liability or obligation under the Worker Adjustment and Retraining Act or
similar state Law. All payments due from any Loan Party and its Subsidiaries,
or for which any claim may be made against any Loan Party, on account of wages
and employee health and welfare insurance and other benefits, have been paid or
properly accrued in accordance with GAAP as a liability on the books of such
Loan Party. Except as set forth on Schedule 5.18, as of the Effective
Date, no Loan Party is a party to or bound by any collective bargaining
agreement. There are no complaints, unfair labor practice charges, grievances,
arbitrations, unfair employment practices charges or any other claims or
complaints against any Loan Party or any Subsidiary pending or, to the
knowledge of any Loan 


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EXECUTION VERSION 


Party, threatened to be filed with any Governmental Authority or
arbitrator based on, arising out of, in connection with, or otherwise relating
to the employment or termination of employment of any employee of any Loan
Party or any of its Subsidiaries, which could reasonably be expected to have a
Material Adverse Effect. 


          5.19 Security Documents.



          The
Security Agreement creates in favor of the Collateral Agent, for the benefit of
the Secured Parties referred to therein, a legal, valid, and enforceable
security interest in the Collateral (as defined in the Security Agreement), the
enforceability of which is subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law. The UCC financing statements, releases and
other filings are in appropriate form and have been or will be filed in the
offices specified in the Due Diligence Certificate. Upon such filings and/or
the obtaining of “control” (as such term is defined in the UCC), the Collateral
Agent will have a perfected Lien on, and security interest in, to and under all
right, title and interest of the grantors thereunder in all Collateral that may
be perfected by filing, recording or registering a financing statement or
analogous document (including without limitation the proceeds of such
Collateral subject to the limitations relating to such proceeds in the UCC) or
by obtaining control, under the UCC (in effect on the date this representation
is made) in each case prior and superior in right to any other Person to the
extent required by the Loan Documents. 


          5.20 Solvency.


          After giving
effect to the transactions contemplated by this Agreement, and before and after
giving effect to each Credit Extension, the Loan Parties, on a Consolidated
basis, are Solvent. 


          5.21 Deposit Accounts;
Credit Card Arrangements.


                    (a) The Due Diligence Certificate
contains a list of all DDAs maintained by the Loan Parties as of the Effective
Date, which Schedule includes, with respect to each DDA, in each case as of the
Effective Date: (i) the name and address of the depository, (ii) the account
number(s) maintained with such depository, (iii) a contact person at such
depository, and (iv) the identification of each Blocked Account Bank. 


                    (b) The Due Diligence Certificate
contains a list describing all arrangements as of the Effective Date to which
any Loan Party is a party with respect to the processing and/or payment to such
Loan Party of the proceeds of any credit card charges and debit card charges
for sales made by such Loan Party. 


          5.22 Brokers. No broker
or finder brought about the obtaining, making or closing of the Loans or
transactions contemplated by the Loan Documents, and no Loan Party or Affiliate
thereof has any obligation to any Person in respect of any finder’s or
brokerage fees in connection therewith. 


          5.23 Customer and Trade
Relations. There exists no actual or, to the knowledge of any Loan Party,
threatened, termination or cancellation of, any agreement with any supplier of
any Loan Party which could reasonably be expected to have a Material Adverse
Effect. 


          5.24 Casualty.
Neither the businesses nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of God or
of the public enemy or other casualty (whether or not 


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EXECUTION VERSION 


covered by insurance) that, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. 


ARTICLE VI 

AFFIRMATIVE COVENANTS


          So long as
any Lender shall have any Commitment hereunder, any Loan or other Obligation
(other than contingent indemnification obligations for which no claim has then
been asserted) hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall, and shall (except in
the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each
Domestic Subsidiary to: 


          6.01 Financial
Statements. Deliver to the Administrative Agent (for distribution to each
Lender): 


	
  

 	
  

 
	
  

 	
           (a) as soon as available, but in any
 event within ninety (90) days after the end of each Fiscal Year of the
 Borrower (commencing with the Fiscal Year ended January 28, 2012), a Consolidated
 balance sheet of the Borrower and its Subsidiaries as at the end of such
 Fiscal Year, and the related consolidated statements of income or operations,
 Shareholders’ Equity and cash flows for such Fiscal Year, setting forth in
 each case in comparative form the figures for the previous Fiscal Year, all
 in reasonable detail and prepared in accordance with GAAP, such consolidated
 statements to be audited and accompanied by a report and unqualified opinion
 of a Registered Public Accounting Firm of nationally recognized standing
 reasonably acceptable to the Administrative Agent, which report and opinion
 shall be prepared in accordance with generally accepted auditing standards
 and shall not be subject to any “going concern” or like qualification or
 exception or any qualification or exception as to the scope of such audit; 

 
	
  

 	
  

 
	
  

 	
           (b) as soon as available, but in any
 event within forty-five (45) days after the end of each of the first three
 Fiscal Quarters of each Fiscal Year of the Borrower (commencing with the
 Fiscal Quarter ended April 28, 2012), a Consolidated balance sheet of the
 Borrower and its Subsidiaries as at the end of such Fiscal Quarter, and the
 related consolidated statements of income or operations, Shareholders’ Equity
 and cash flows for such Fiscal Quarter and for the portion of the Borrower’s
 Fiscal Year then ended, setting forth in each case in comparative form the
 figures for (A) the corresponding Fiscal Quarter of the previous Fiscal Year
 and (B) the corresponding portion of the previous Fiscal Year, all in
 reasonable detail, such consolidated statements to be certified by a
 Responsible Officer of the Borrower as fairly presenting in all material
 respects the financial condition, results of operations, Shareholders’ Equity
 and cash flows of the Borrower and its Subsidiaries as of the end of such
 Fiscal Quarter in accordance with GAAP, subject only to normal year-end audit
 adjustments and the absence of footnotes; 

 
	
  

 	
  

 
	
  

 	
           (c) if requested by the Administrative
 Agent, then within thirty (30) days after the end of each of the Fiscal
 Months of each fiscal year of the Borrower (or sooner if available), (a) a
 consolidated balance sheet of the Borrower and its Subsidiaries as at the end
 of such Fiscal Month, and the related consolidated statements of income or
 operations and cash flows for such Fiscal Month and for the portion of the
 Borrower’s Fiscal Year then ended, setting forth in each case in comparative
 form the figures for (A) the corresponding Fiscal Month of the previous Fiscal
 Year and (B) the corresponding portion of the previous Fiscal Year, all in
 reasonable detail, such statements to be certified by a Responsible Officer
 of the Borrower as fairly representing in all material respects the financial
 condition, results of operations, and cash flows of the Borrower and its
 Subsidiaries as of the end of such Fiscal Month in accordance with the 

 


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EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 Borrower’s customary accounting practices in effect on the Effective
 Date, and (b) reasonably detailed calculations with respect to Adjusted
 Availability for such period; 

 
	
  

 	
  

 
	
  

 	
           (d) as
 soon as available, but in any event within 45 days after the end of each
 Fiscal Year of the Borrower, forecasts prepared by management of the
 Borrower, in form satisfactory to the Administrative Agent, of consolidated
 balance sheets and statements of income or operations and cash flows of the
 Borrower and its Subsidiaries, and an Availability model, in each case on a
 quarterly basis for the immediately following Fiscal Year (including the
 fiscal year in which the Maturity Date occurs), and as soon as available, any
 significant revisions to such forecast with respect to such Fiscal Year, it
 being understood and agreed that (i) any forecasts furnished hereunder are
 subject to significant uncertainties and contingencies, which may be beyond
 the control of the Loan Parties, (ii) no assurance is given by the Loan
 Parties that the results or forecast in any such projections will be realized
 and (iii) the actual results may differ from the forecasted results set forth
 in such projections and such differences may be material. 

 
	
  

 	
  

 
	
           6.02 Certificates;
 Other Information. Deliver to the Administrative Agent (for distribution
 to each Lender), in form and detail satisfactory to the Administrative Agent:
 

 
	
  

 	
  

 
	
  

 	
           (a)
 concurrently with the delivery of the financial statements referred to in
 Sections 6.01(a) and (b) (commencing with the delivery of the financial
 statements for the Fiscal Quarter ended April 28, 2012), (i) a duly completed
 Compliance Certificate signed by a Responsible Officer of the Borrower, and
 in the event of any change in generally accepted accounting principles used
 in the preparation of such financial statements, the Borrower shall also
 provide a statement of reconciliation conforming such financial statements to
 GAAP and (ii) a copy of management’s discussion and analysis with respect to
 such financial statements; 

 
	
  

 	
  

 
	
  

 	
           (b) on the fifteenth (15th)
 day following each Fiscal Quarter end (or, if such day is not a Business Day,
 on the next succeeding Business Day) (or more frequently at the option of the
 Borrower; provided that, if the Borrower elects to deliver a Borrowing
 Base Certificate on a more frequent basis than is required, then the Borrower
 shall continue to furnish a Borrowing Base Certificate on such basis from the
 date of such election through the remainder of the Fiscal Year in which such
 election was made), a Borrowing Base Certificate showing the Borrowing Base
 as of the close of business as of the last day of the immediately preceding
 Fiscal Quarter, each Borrowing Base Certificate to be certified as complete
 and correct in all material respects by a Responsible Officer of the
 Borrower; provided that at any time that a Monthly Accelerated
 Borrowing Base Delivery Event has occurred and is continuing, such Borrowing
 Base Certificate shall be delivered on the fifteenth (15th) day of
 each Fiscal Month as of the close of business as of the last day of the
 immediately preceding Fiscal Month; and provided further that at any
 time that a Weekly Accelerated Borrowing Base Delivery Event has occurred and
 is continuing, such Borrowing Base Certificate shall be delivered on
 Wednesday of each week (or, if Wednesday is not a Business Day, on the next
 succeeding Business Day), as of the close of business on the immediately
 preceding Saturday; 

 
	
  

 	
  

 
	
  

 	
           (c) promptly upon receipt, copies of
 any detailed audit reports, management letters or recommendations submitted
 to the board of directors (or the audit committee of the board of directors)
 of any Loan Party by its Registered Public Accounting Firm in connection with
 the accounts or books of the Loan Parties or any Subsidiary, or any audit of
 any of them, but only to the extent that such reports, letters or
 recommendations could reasonably be expected to materially adversely impact
 (i) the calculation of the Borrowing Base, Adjusted Availability, or the Pro
 Forma Availability Condition or (ii) the accuracy of any financial statements
 furnished under Section 6.01 hereof; 

 


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EXECUTION VERSION


	
  

 	
  

 
	
  

 	
           (d) promptly after the same are
 available, copies of each annual report, proxy or financial statement or
 other report or communication sent to the stockholders of the Loan Parties,
 and copies of all annual, regular, periodic and special reports and
 registration statements (other than registration statements on Form S-8 or
 its equivalent) which any Loan Party may file or be required to file with the
 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or with
 any national securities exchange, and in any case not otherwise required to
 be delivered to the Administrative Agent pursuant hereto; 

 
	
  

 	
  

 
	
  

 	
           (e) the financial and collateral
 reports described on Schedule 6.02 hereto, at the times set forth in
 such Schedule; 

 
	
  

 	
  

 
	
  

 	
           (f)
 promptly after the furnishing thereof, copies of any statement or report
 furnished to any holder of debt securities of any Loan Party or any
 Subsidiary thereof pursuant to the terms of the Indenture or any similar
 agreement and not otherwise required to be furnished to the Lenders pursuant
 to Section 6.01 or any other clause of this Section 6.02; 

 
	
  

 	
  

 
	
  

 	
           (g)
 promptly, and in any event within five Business Days after receipt thereof by
 any Loan Party or any Subsidiary thereof, copies of each notice or other
 correspondence received from any Governmental Authority (including, without
 limitation, the SEC (or comparable agency in any applicable non-U.S.
 jurisdiction)) concerning any proceeding with, or investigation or possible
 investigation or other inquiry by such Governmental Authority regarding
 financial or other operational results of any Loan Party or any Subsidiary
 thereof or any other matter which, in each case, could reasonably expected to
 have a Material Adverse Effect; and 

 
	
  

 	
  

 
	
  

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

 


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


          The Loan
Parties hereby acknowledge that (a) the Administrative Agent and/or the
Arrangers will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Loan Parties hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials
on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be 


-88-





EXECUTION VERSION 


“public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Loan Parties or their
securities) (each, a “Public Lender”). The Loan Parties hereby agree
that so long as any Loan Party is the issuer of any outstanding debt or equity
securities that are registered or issued pursuant to a private offering or is
actively contemplating issuing any such securities they will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may
be distributed to the Public Lenders and that (w) all such Borrower Materials
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 Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to
have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information (although it may be sensitive and proprietary) with
respect to the Loan Parties or their securities for purposes of United States
Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as
set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated
“Public Investor”; and (z) the Administrative Agent and the Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.” 


          6.03 Notices. Promptly
notify the Administrative Agent of the following promptly after any Responsible
Officer of the Borrower obtains knowledge thereof: 


	
  

 	
  

 
	
  

 	
           (a) the occurrence of any Default or
 Event of Default; 

 
	
  

 	
  

 
	
  

 	
           (b) any matter that has resulted or
 could reasonably be expected to result in a Material Adverse Effect; 

 
	
  

 	
  

 
	
  

 	
           (c) the occurrence of any ERISA Event;
 

 
	
  

 	
  

 
	
  

 	
           (d) any material change in accounting
 policies or financial reporting practices by any Loan Party or any Subsidiary
 thereof; 

 
	
  

 	
  

 
	
  

 	
           (e) the discharge by any Loan Party of
 its present Registered Public Accounting Firm or any withdrawal or resignation
 by such Registered Public Accounting Firm; 

 
	
  

 	
  

 
	
  

 	
           (f) any collective bargaining
 agreement or other labor contract to which a Loan Party becomes a party, or
 the application for the certification of a collective bargaining agent; 

 
	
  

 	
  

 
	
  

 	
           (g) the filing of any Lien in an
 amount equal to $10,000 for any individual Lien or $100,000 in the aggregate
 for unpaid Taxes against any Loan Party; 

 
	
  

 	
  

 
	
  

 	
           (h) any casualty or other insured
 damage to any material portion of the Collateral or the commencement of any
 action or proceeding for the taking of any interest in a material portion of
 the Collateral under power of eminent domain or by condemnation or similar
 proceeding or if any material portion of the Collateral is damaged or destroyed;
 and 

 
	
  

 	
  

 
	
  

 	
           (i) any
 failure by any Loan Party to pay rent at (i) ten (10%) or more of such Loan
 Party’s locations or (ii) any of such Loan Party’s locations if such failure
 continues for more than ten (10) days following the day on which such rent
 first came due and such failure would be reasonably likely to result in a
 Material Adverse Effect. 

 


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EXECUTION VERSION 


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


          6.04 Payment of
Obligations. Pay and discharge as the same shall become due and payable,
all its obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, (b) all lawful claims (including, without limitation, claims of
landlords, warehousemen, customs brokers and other carriers) which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness, except, in each case,
where (i) the validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) such Loan Party has set aside on its books adequate reserves
with respect thereto in accordance with GAAP, (iii) no Lien has been filed with
respect thereto (other than Permitted Encumbrances of the type described in
clauses (a), (b) and (e) of such definition), and (iv) the failure to make
payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect. Nothing contained herein shall be deemed to limit the
rights of the Agents with respect to determining Reserves pursuant to this
Agreement. 


          6.05 Preservation of
Existence, Etc.(a) Preserve,
renew and maintain in full force and effect its legal existence (and, except to
the extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect, good standing) under the Laws of the jurisdiction of
its organization or formation except in a transaction permitted by Section 7.04
or 7.05; (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) preserve or
renew all of its Intellectual Property, except to the extent such Intellectual
Property is no longer used or useful in the conduct of the business of the Loan
Parties or that failure to do so could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. 


          6.06 Maintenance of
Properties. (a) Except to the extent that the failure to do so could not
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect, maintain, preserve and protect all of its properties
and equipment necessary in the operation of its business in good working order
and condition, ordinary wear and tear and casualty events excepted; and (b)
make all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect. 


          6.07 Maintenance of
Insurance. Maintain with financially sound and reputable insurance
companies (or otherwise reasonably acceptable to the Administrative Agent)
which are not Affiliates of the Loan Parties (or through self-insurance
arrangements reasonably acceptable to the Administrative Agent), insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business
and operating in the same or similar locations or as is required by applicable
Law, of such types and in such amounts (after giving effect to any
self-insurance compatible with the following standards) as are customarily
carried under similar circumstances by such other Persons and as are reasonably
acceptable to the Administrative Agent. The Administrative Agent and the
Lenders acknowledge that the insurance described in Section 5.10 and the
insurance carriers priding such insurance are acceptable as of the Effective
Date. 


                    (a) Fire and extended coverage policies
maintained with respect to any Collateral shall be endorsed or otherwise
amended to include (i) a non-contributing mortgage clause (regarding 


-90-







EXECUTION VERSION


improvements to real property) and lenders’ loss payable clause
(regarding personal property), in form and substance reasonably satisfactory to
the Collateral Agent, which endorsements or amendments shall provide that the
insurer shall pay all proceeds otherwise payable to the Loan Parties under the
policies directly to the Collateral Agent (and the Collateral Agent agrees,
unless a Triggering Event is then continuing or the proceeds are required to be
applied to the Obligations and Other Liabilities in accordance with the
provisions of Sections 2.05(c) or 2.05(e), to deliver such insurance proceeds
as the Borrower may direct), (ii) a provision to the effect that none of the
Loan Parties, Credit Parties or any other Person shall be a co-insurer and
(iii) such other provisions as the Collateral Agent may reasonably require from
time to time to protect the interests of the Credit Parties. Commercial general
liability policies shall be endorsed to name the Collateral Agent as an
additional insured. Business interruption policies shall name the Collateral
Agent as a loss payee and shall be endorsed or amended to include (i) a
provision that, from and after the Effective Date, the insurer shall pay all
proceeds otherwise payable to the Loan Parties under the policies directly to
the Collateral Agent (and the Collateral Agent agrees, unless a Triggering
Event is then continuing or the proceeds are required to be applied to the
Obligations and Other Liabilities in accordance with the provisions of Sections
2.05(c) or 2.05(e), to deliver such insurance proceeds as the Borrower may
direct), (ii) a provision to the effect that none of the Loan Parties, the
Administrative Agent, the Collateral Agent or any other party shall be a
co-insurer and (iii) such other provisions as the Collateral Agent may
reasonably require from time to time to protect the interests of the Credit
Parties. Each such policy referred to in this Section 6.07(a) shall also
provide that it shall not be canceled or not renewed (i) by reason of
nonpayment of premium except upon not less than ten (10) days’ prior written
notice thereof by the insurer to the Collateral Agent (giving the Collateral
Agent the right to cure defaults in the payment of premiums) or (ii) for any
other reason except upon not less than thirty (30) days’ prior written notice
thereof by the insurer to the Collateral Agent. The Borrower shall deliver to
the Collateral Agent, prior to the cancellation or non-renewal of any such
policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Collateral Agent,
including an insurance binder) together with evidence reasonably satisfactory
to the Collateral Agent of payment of the premium therefor.


                    (b)
None of the Credit Parties, or their agents or employees shall be liable for
any loss or damage insured by the insurance policies required to be maintained
under this Section 6.07. Each such insurance companies shall have no rights of
subrogation against any Credit Party or its agents or employees. If, however,
the insurance policies do not provide waiver of subrogation rights against such
parties, as required above, then the Loan Parties hereby agree, to the extent
permitted by law, to waive their right of recovery, if any, against the Credit
Parties and their agents and employees. The designation of any form, type or
amount of insurance coverage by any Credit Party under this Section 6.07 shall
in no event be deemed a representation, warranty or advice by such Credit Party
that such insurance is adequate for the purposes of the business of the Loan
Parties or the protection of their properties.


                    (c)
Maintain
for themselves and their Subsidiaries, a Directors and Officers insurance
policy, and a “Blanket Crime” policy including employee dishonesty, forgery or
alteration, theft, disappearance and destruction, robbery and safe burglary,
property, and computer fraud coverage with responsible companies in such
amounts as are customarily carried by business entities engaged in similar
businesses similarly situated, and will upon request by the Administrative
Agent furnish the Administrative Agent certificates evidencing renewal of each
such policy.


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


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 EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 6.09
 Books and Records; Accountants. (a) Maintain proper books of record and account in conformity with
 GAAP consistently applied, in which entries true and correct in all material
 respects shall be made of financial transactions and matters involving the
 assets and business of the Loan Parties or such Subsidiary, as the case may
 be; and (ii) maintain such books of record and account in material conformity
 with all applicable requirements of any Governmental Authority having
 regulatory jurisdiction over the Loan Parties or such Subsidiary, as the case
 may be.

 
	
  

 	
  

 
	
  

 	
           (b)
 at all times retain a Registered Public Accounting Firm which is reasonably
 satisfactory to the Administrative Agent and shall permit such Registered
 Public Accounting Firm to discuss the Loan Parties’ financial performance,
 financial condition, operating results, controls, and such other matters,
 within the scope of the retention of such Registered Public Accounting Firm,
 as may be raised by the Administrative Agent; provided that any such
 discussions between the Administrative Agent and the Registered Public
 Accounting Firm shall take place only with the participation of the Borrower
 (which agrees to make itself reasonable available therefor).

 
	
  

 	
  

 
	
  

 	
 6.10
 Inspection Rights.
 (a) Permit representatives and independent contractors of the Administrative
 Agent to visit and inspect any of its properties, to examine its corporate,
 financial and operating records, and make copies thereof or abstracts
 therefrom, and to discuss its affairs, finances and accounts with its
 directors, officers, and Registered Public Accounting Firm, all at the
 expense of the Loan Parties and at such reasonable times during normal
 business hours and as often as may be reasonably desired, upon reasonable
 advance notice to the Borrower; provided, however, that when an
 Event of Default exists the Administrative Agent (or any of its
 representatives or independent contractors) may do any of the foregoing at
 the expense of the Loan Parties at any time during normal business hours and
 without advance notice.

 
	
  

 	
  

 
	
  

 	
           (b)
 Upon the request of the Administrative Agent after reasonable prior notice,
 permit the Administrative Agent or professionals (including investment
 bankers, consultants, accountants, lawyers and appraisers) retained by the
 Administrative Agent to conduct appraisals, commercial finance examinations
 and other evaluations, including, without limitation, of (i) the Borrower’s
 practices in the computation of the Borrowing Base and (ii) the assets
 included in the Borrowing Base and related financial information such as, but
 not limited to, sales, gross margins, payables, accruals and reserves. The
 Loan Parties shall pay the reasonable and documented fees and out-of-pocket
 expenses of the Administrative Agent and such professionals with respect to
 one (1) appraisal of the Loan Parties’ Inventory and one (1) commercial
 finance examination during any twelve month period in which either (x) the
 Aggregate Commitments equal or exceed $300,000,000 or (ii) the Total
 Outstandings exceed fifty (50%) percent of the Loan Cap. Notwithstanding the
 foregoing, the Administrative Agent may undertake additional appraisals and
 commercial finance examinations (i) as it in its discretion deems necessary
 or appropriate, at its own expense or, (ii) if required by applicable Law or
 if an Event of Default shall have occurred and be continuing, at the expense
 of the Loan Parties.

 
	
  

 	
  

 


          6.11
Use of Proceeds. Use
the proceeds of the Credit Extensions (a) to finance the acquisition of working
capital assets of the Loan Parties, including the purchase of inventory and
equipment, in each case in the ordinary course of business, (b) to finance Capital
Expenditures of the Loan Parties, and (c) for general corporate purposes of the
Loan Parties (including the financing of Permitted Acquisitions and the making
of Permitted Investments and Restricted Payments), in each case to the extent
not prohibited under applicable Law and the Loan Documents.


          6.12
Additional Loan Parties. Notify the Administrative Agent at the time
that any Person becomes a Subsidiary, and whether the Borrower in its
discretion elects to cause such Subsidiary to


-92-






EXECUTION VERSION


become
a Loan Party (it being acknowledged by the Credit Parties that the Borrower is
not obligated to cause such Subsidiary to become a Loan Party) and if any
Equity Interests or Indebtedness of such Person are owned by any Loan Party, to
promptly thereafter (and in any event within thirty (30) days or such longer
period as the Administrative Agent shall agree) cause such Loan Party to pledge
such Equity Interests and any promissory notes evidencing such Indebtedness to
the extent required pursuant by the Security Agreement, in each case in form,
content and scope reasonably satisfactory to the Administrative Agent. If the
Borrower elects to cause such Subsidiary to become a Loan Party: promptly
thereafter (and in any event within thirty (30) days or such longer period as
the Administrative Agent shall agree), cause any such Person (a) to become a
Loan Party by executing and delivering to the Administrative Agent a Joinder
Agreement, (b) to grant a Lien to the Collateral Agent on such Person’s assets
to secure the Obligations and Other Liabilities on the same types of assets
which constitute Collateral under the Security Documents, and (c) to deliver to
the Administrative Agent documents of the types referred to in clauses (iii)
and (iv) of Section 4.01(a) and, if reasonably requested by the Administrative
Agent, favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the
documentation referred to above). In no event shall compliance with this
Section 6.12 waive or be deemed a waiver or Consent to any transaction giving
rise to the need to comply with this Section 6.12 if such transaction was not
otherwise expressly permitted by this Agreement or constitute or be deemed to constitute,
with respect to any Subsidiary, an approval of such Person as a Borrower or
Guarantor or permit the inclusion of any acquired assets in the computation of
the Borrowing Base.


          6.13
Cash Management.


                    (a)
On or before the Effective Date (or such later date as the Administrative Agent
shall agree in its sole discretion): 


	
  

 	
  

 
	
  

 	
                     (i)
 deliver to the Administrative Agent copies of notifications (each, a “Credit
 Card Notification”) substantially in the form attached hereto as Exhibit
 H, which have been executed on behalf of such Loan Party and delivered to
 such Loan Party’s credit card clearinghouses and processors listed in the Due
 Diligence Certificate; and 

 
	
  

 	
  

 
	
  

 	
                     (ii)
 enter into a Blocked Account Agreement with each Blocked Account Bank
 (collectively, the “Blocked Accounts”).

 


                    (b)
Whether or not a Triggering Event has occurred and is continuing, the Loan
Parties shall (i) ACH or wire transfer, with such frequency as is consistent
with their respective practices in effect on the Effective Date, (and whether
or not there are then any outstanding Obligations) to a Blocked Account all
amounts on deposit and available in each such DDA (net of any minimum balance
as may be required to be kept in such DDA by the depository institution at
which such DDA is maintained) and (ii) cause all payments due from credit card
processors to be forwarded to a Blocked Account.


                    (c)
After the occurrence and during the continuance of a Triggering Event (and
delivery of notice thereof from the Administrative Agent to the Borrower and
the applicable Blocked Account Bank), the Loan Parties and each Blocked Account
Bank shall ACH or wire transfer no less frequently than once each Business Day
(and whether or not there are then any outstanding Obligations) to the
concentration account maintained by the Collateral Agent at Bank of America
(the “Concentration Account”), of all cash receipts, all collections of
Accounts and all other proceeds of the Collateral, including, without
limitation, (i) all Net Proceeds, and all other cash payments received by a
Loan Party from any Person or from any source or on account of any sale or
other transaction or event, including, without limitation, any Prepayment
Event. (ii) the then contents of each DDA (net of any minimum balance, not to
exceed $2,500 individually, as may be required to be kept in such DDA by the
depository


-93-





EXECUTION VERSION


institution at which such DDA is maintained); and (iii) the then entire
ledger balance of each Blocked Account (net of any minimum balance, not to
exceed $2,500 individually, as may be required to be kept in the subject
Blocked Account by the Blocked Account Bank).


                    (d)
The Concentration Account shall at all times be under the sole dominion and
control of the Collateral Agent. The Loan Parties hereby acknowledge and agree
that (i) the Loan Parties have no right of withdrawal from the Concentration
Account, (ii) the funds on deposit in the Concentration Account shall at all
times be collateral security for all of the Obligations and Other Liabilities
and (iii) the funds on deposit in the Concentration Account shall be applied as
provided in this Agreement. In the event that, notwithstanding the provisions
of this Section 6.13, any Loan Party receives or otherwise has dominion and
control of any such proceeds or collections, such proceeds and collections
shall be held in trust by such Loan Party for the Collateral Agent, shall not
be deposited in any account of such Loan Party (other than a Blocked Account)
and shall, not later than the Business Day after receipt thereof, be deposited
into the Concentration Account or dealt with in such other fashion as such Loan
Party may be instructed by the Collateral Agent.


                    (e)
Upon the request of the Administrative Agent after the occurrence and during
the continuance of a Triggering Event, the Loan Parties shall cause bank
statements and/or other reports to be delivered to the Administrative Agent not
less often than monthly, accurately setting forth all amounts deposited in each
Blocked Account to ensure the proper transfer of funds as set forth above.


                    (f)
Without limiting the foregoing, so long as no Triggering Event shall have
occurred and be continuing, the Loan Parties may direct, and shall have sole
control over, the manner of disposition of funds in the Blocked Accounts.


                    (g)
Any amounts held or received in the Concentration Account at any time when no
Triggering Event exists shall be applied to the Obligations and Other
Liabilities to the extent required pursuant to Sections 2.05(c) or 2.05(e) or
promptly remitted to an account of the Borrower or as the Borrower may
otherwise direct.


          6.14
Information Regarding the Collateral.


	
  

 	
  

 
	
  

 	
           (a)
 Furnish to the Administrative Agent at least ten (10) Business Days’ prior
 written notice (or such shorter period as the Administrative Agent may agree)
 of any change in any Loan Party’s legal name. 

 
	
  

 	
  

 
	
  

 	
           (b)
 Furnish to the Administrative Agent at least twenty (20) days prior written
 notice (or such shorter period as the Administrative Agent may agree) of any
 change in: (i) the location of any Loan Party’s chief executive office or its
 principal place of business; (ii) any Loan Party’s type of organization or
 jurisdiction of organization; or (iii) any Loan Party’s Federal Taxpayer
 Identification Number or organizational identification number assigned to it
 by its state of organization.

 
	
  

 	
  

 
	
  

 	
           (c)
 Furnish to the Administrative Agent prompt written notice of any change in
 any trade name used to identify it in the conduct of its business or in the
 ownership of its properties.

 
	
  

 	
  

 
	
  

 	
           (d)
 The Loan Parties agree not to effect or permit any change referred to in the
 clauses (a) and (b) unless all filings have been made under the UCC that are
 required in order for the Collateral Agent to continue at all times following
 such change to have a valid, legal and perfected security interest in all the
 Collateral for its own benefit and the benefit of the other Credit Parties as
 required by this Agreement and the Security Agreement.

 


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EXECUTION VERSION


          6.15
Physical Inventories.


                    (a)
Cause not less than one physical inventory to be undertaken, at the expense of
the Loan Parties, in each twelve (12) month period and periodic cycle counts,
in each case consistent with past practices, conducted by such inventory takers
as are satisfactory to the Collateral Agent and following such methodology as
is consistent with the methodology used in the immediately preceding inventory
or as otherwise may be satisfactory to the Collateral Agent. The Collateral
Agent, at the expense of the Loan Parties, may observe each scheduled physical
count of Inventory which is undertaken on behalf of any Loan Party.


                    (b)
The Collateral Agent, in its discretion, if any Default or Event of Default
exists, may cause additional such inventories to be taken as the Collateral
Agent determines (each, at the expense of the Loan Parties).


          6.16
Environmental Laws.


                    (a)
Except, in each case, where failure to do so could not reasonably be expected
to result, individually or in the aggregate, in a Material Adverse Effect,
conduct its operations and keep and maintain its Real Estate in compliance with
all Environmental Laws; (b) obtain and renew all environmental permits
necessary for its operations and properties; and (c) implement any and all investigation,
remediation, removal and response actions that are appropriate or necessary to
maintain the value and marketability of the Real Estate or to otherwise comply
with Environmental Laws pertaining to the presence, generation, treatment,
storage, use, disposal, transportation or release of any Hazardous Materials
on, at, in, under, above, to, from or about any of its Real Estate, provided,
however, that neither a Loan Party nor any of its Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and adequate reserves have been set aside and are being
maintained by the Loan Parties with respect to such circumstances in accordance
with GAAP.


          6.17
Further Assurances.


                    (a)
Subject to the exceptions set forth in any applicable Loan Document, execute
any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements and other documents), that may be required
under any applicable Law, or which any Agent may reasonably request, to
effectuate the transactions contemplated by the Loan Documents or to grant,
preserve, protect or perfect the Liens created or intended to be created by the
Security Documents or the validity or priority of any such Lien, all at the
expense of the Loan Parties.


                    (b)
If any assets constituting Collateral are acquired by any Loan Party after the
Effective Date (other than assets constituting Collateral under the Security
Documents that become subject to the Lien of the Security Documents upon
acquisition thereof), notify the Agents thereof, and the applicable Loan Party
will cause such assets to be subjected to a Lien securing the Obligations and
Other Liabilities and will take such actions as shall be necessary to grant and
perfect such Liens, including actions described in paragraph (a) of this Section
6.17, all at the expense of the Loan Parties. In no event shall compliance with
this Section 6.17(b) waive or be deemed a waiver or Consent to any transaction
giving rise to the need to comply with this Section 6.17(b) if such transaction
was not otherwise permitted by this Agreement or constitute or be deemed to
constitute Consent to the inclusion of any acquired assets in the computation
of the Borrowing Base.


          6.18
Compliance with Terms of Leaseholds.


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EXECUTION VERSION


          Except
as otherwise expressly permitted hereunder, make all payments and otherwise
perform all obligations in respect of all Leases of real property to which any
Loan Party or any of its Subsidiaries is a party, keep such Leases in full
force and effect and not allow such Leases to lapse or be terminated or any
rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such Leases
and cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so, except, in any case,
where the failure to do so, either individually or in the aggregate, could not
be reasonably likely to have a Material Adverse Effect.


ARTICLE VII

NEGATIVE COVENANTS


          So long as
any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, no Loan Party shall, nor shall it permit any Domestic Subsidiary
to, directly or indirectly:


          7.01
Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired or sign or file or suffer to exist under the UCC or any
similar Law or statute of any jurisdiction a financing statement that names any
Loan Party or any Subsidiary thereof as debtor, other than, as to all of the
above, Permitted Encumbrances; provided that if any such financing
statement is filed without the knowledge or consent of the Borrower, the
Borrower shall have a reasonable period of time after obtaining knowledge
thereof to obtain its termination. 


          7.02
Investments. Make any Investments, except Permitted
Investments.


          7.03
Indebtedness; Disqualified Stock.


                    (a)
Create, incur, assume, guarantee, suffer to exist or otherwise become or remain
liable with respect to, any Indebtedness, except Permitted Indebtedness or (b)
issue Disqualified Stock.


          7.04 Fundamental Changes. Merge,
dissolve, liquidate, consolidate with or into another Person, (or agree to do
any of the foregoing), except that:


	
  

 	
  

 
	
  

 	
           (a)
 any Subsidiary may merge with (i) a Loan Party, provided that a Loan
 Party shall be the continuing or surviving Person (and in any merger
 involving the Borrower, the Borrower shall be the continuing or surviving
 Person), or (ii) any one or more other Subsidiaries which are not Loan
 Parties, provided that when any Wholly-Owned Subsidiary is merging
 with another Subsidiary, such Wholly-Owned Subsidiary shall be the continuing
 or surviving Person;

 
	
  

 	
  

 
	
  

 	
           (b)
 so long as no Default or Event of Default shall have occurred and be
 continuing prior to or immediately after giving effect to any action
 described below or would result therefrom, in connection with a Permitted
 Acquisition or other Permitted Investment, any Loan Party or Subsidiary of a
 Loan Party may merge with or into or consolidate with any other Person or
 permit any other Person to merge with or into or consolidate with it; provided
 that (i) the Person surviving such merger or consolidation shall be a
 Loan Party or a Wholly-Owned Subsidiary of a Loan Party and (ii) in the case
 of any such merger or consolidation to which any Loan Party is a party, a Loan
 Party is the surviving Person; and

 
	
  

 	
  

 
	
  

 	
           (c)
 so long as no Default or Event of Default shall have occurred and be
 continuing prior to or immediately after giving effect to any action
 described below or would result therefrom, any Subsidiary of the Borrower may
 liquidate or dissolve if the Borrower determines 

 


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EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 in good faith that such
 liquidation or dissolution is in the best interests of the Loan Parties and
 is not materially disadvantageous or materially adverse to the Credit
 Parties.

 


          7.05
Dispositions. Make
any Disposition or enter into any agreement to make any Disposition, except
Permitted Dispositions.


          7.06
Restricted Payments.
Declare or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except that, so long as no
Default or Event of Default shall have occurred and be continuing prior to or
immediately after giving effect to any action described below or would result
therefrom:


	
  

 	
  

 
	
  

 	
           (a)
 each Subsidiary may make Restricted Payments to any Loan Party or to any
 other Subsidiary;

 
	
  

 	
  

 
	
  

 	
           (b)
 the Loan Parties and each Subsidiary may declare and make dividend payments
 or other distributions payable solely in the common stock or other common
 Equity Interests of such Person;

 
	
  

 	
  

 
	
  

 	
           (c)
 the Loan Parties and each Subsidiary may purchase, redeem or otherwise
 acquire Equity Interests issued by it if either (i) the Restricted Payment
 Conditions are satisfied or (ii) (A) at the time of such purchase or
 redemption, no Loans are then outstanding and (B) such purchase or redemption
 is funded entirely through the use of cash on hand of the Loan Parties;

 
	
  

 	
  

 
	
  

 	
           (d)
 the Borrower may declare and pay cash dividends to its stockholders if either
 (i) the Restricted Payment Conditions are satisfied or (ii) (A) at the time
 of such payment, no Loans are then outstanding and (B) such payment is funded
 entirely through the use of cash on hand of the Loan Parties; and

 
	
  

 	
  

 
	
  

 	
           (e)
 the Loan Parties may issue and sell Equity Interests provided that (i)
 (A) with respect to any Equity Interests, all dividends (other than cash
 dividends to be paid by the Borrower in accordance with clause (d) above) in
 respect of which are to be paid (and all other payments in respect of which
 are to be made) shall be in additional shares of such Equity Interests, in
 lieu of cash, (B) such Equity Interests shall not be subject to redemption
 other than redemption at the option of the Loan Party issuing such Equity
 Interests, and (C) all payments in respect of such Equity Interests are
 expressly subordinated to the Obligations, and (ii) no Loan Party shall issue
 any additional Equity Interests in a Subsidiary.

 


          7.07 Prepayments of Indebtedness. Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner any Indebtedness, or make any payment
in violation of any subordination terms of any Subordinated Indebtedness,
except (a) payment in respect of the Obligations, (b) as long as no Event of
Default then exists, regularly scheduled or mandatory repayments, repurchases,
redemptions or defeasances of Permitted Indebtedness (other than Subordinated
Indebtedness), (c) as long as no Event of Default then exists, repayments and
prepayments of Subordinated Indebtedness in accordance with the subordination
terms thereof, (d) voluntary prepayments, repurchases, redemptions or
defeasances or other satisfaction of Permitted Indebtedness (but excluding any
payment in violation of any subordination terms of any Subordinated
Indebtedness) as long as the Payment Conditions are satisfied, (e) payment of
Permitted Indebtedness to the extent such payment is in kind, and (f)
refinancings and refundings of such Indebtedness to the extent permitted
hereunder. 


          7.08
Change in Nature of Business.


-97-






EXECUTION VERSION


          Engage
in any line of business substantially different from the business conducted by
the Loan Parties and their Subsidiaries on the date hereof or any business
reasonably related, complementary, ancillary or incidental thereto.


          7.09
Transactions with Affiliates. Enter into, renew, extend or be a party to
any transaction of any kind with any Affiliate of any Loan Party, whether or
not in the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Loan Parties or such Subsidiary as would be
obtainable by the Loan Parties 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 shall not apply to (a) a transaction between or
among the Loan Parties, (b) a transaction between or among any Subsidiaries of
the Borrower that are not Loan Parties, (c) transactions, arrangements,
reimbursements and indemnities permitted between or among such parties under
this Agreement, (d) the payment of reasonable fees and out-of-pocket costs to
directors, and compensation and employee benefit arrangements paid to, and
indemnities provided for the benefit of, directors, officers or employees of
the Borrower or its Subsidiaries, (e) any issuances of securities or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment agreements, stock options and stock ownership plans
approved by the Borrower’s board of directors, (f) non-exclusive, royalty-free
licenses of any of the Borrower’s’ or Subsidiaries’ trademarks, trade names and
business sytems by Loan Parties to Subsidiaries which are not Loan Parties, or
(g) any Pension Property Purchase.


          7.10
Burdensome Agreements. Enter into or permit to exist any Contractual
Obligation (other than this Agreement or any other Loan Document or the
Indenture and except in the case of restrictions and conditions imposed by law)
that (a) limits the ability (i) of any Subsidiary to make Restricted Payments
or other distributions to any Loan Party or to otherwise transfer property to
or invest in a Loan Party, (ii) of any Subsidiary to Guarantee the Obligations
and Other Liabilities, (iii) of any Subsidiary to make or repay loans to a Loan
Party, or (iv) of the Loan Parties or any Subsidiary to create, incur, assume
or suffer to exist Liens on property of such Person in favor of the Collateral
Agent; provided, however, that this clause (iv) shall not
prohibit (A) any restriction incurred or provided in favor of any holder of
Indebtedness permitted under clauses (c) or (f) of the definition of Permitted
Indebtedness solely to the extent any such restriction relates to the property
financed by or the subject of such Indebtedness, (B) customary anti-assignment
provisions in licenses and other contracts entered into in the ordinary course
of business restricting the assignment thereof or in contracts for the Disposition
of any assets or any Subsidiary, provided that the restrictions in any such
contract shall apply only to the assets or Subsidiary that is subject to such
contract or to be Disposed of, (C) provisions in leases of real property that
prohibit mortgages or pledges of the lessee’s interest under such lease or
restricting subletting or assignment of such lease; (D) any encumbrance or
restriction contained in any agreement of a Person acquired in a Permitted
Investment, which encumbrance or restriction was in existence at the time of
such Permitted Investment (but not created in connection therewith or in
contemplation thereof) and which encumbrance or restriction is not applicable
to any Person or the properties or assets of any Person, other than the Person
or the property and assets of the Person so acquired, or (E) customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures to the extent such joint ventures are permitted hereunder; or
(b) requires the grant of a Lien to secure an obligation of such Person if a
Lien is granted to secure another obligation of such Person.


          7.11
Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund Indebtedness originally incurred for such
purpose.


          7.12
Amendment of Material Documents.


-98-





EXECUTION VERSION


          (a) Amend,
modify or waive any of a Loan Party’s rights under its Organization Documents
in a manner materially adverse to the Credit Parties, or (b) amend, modify or
waive any material document governing any Material Indebtedness (other than on
account of any refinancing thereof otherwise permitted hereunder), in each case
to the extent that such amendment, modification or waiver would be reasonably
likely to have a Material Adverse Effect.


          7.13
Fiscal Year.


          Either
(a) change the Fiscal Year of any Loan Party, or (b) change the accounting
policies or reporting practices of the Loan Parties, except as required by GAAP
or except for the adoption by the Borrower of the International Financial
Reporting Standards (subject to Section 1.03 hereof) (the foregoing not being
intended to waive or modify the Loan Parties’ furnishing notice to the
Administrative Agent of such change in accounting policies in accordance with
the provisions of Section 6.03).


          7.14
Deposit Accounts; Credit Card Processors.


          Either
(a) open new Blocked Accounts unless the Loan Parties shall have delivered to
the Collateral Agent appropriate Blocked Account Agreements consistent with the
provisions of Section 6.13 and otherwise satisfactory to the Collateral Agent;
or (b) enter into any agreements with credit card processors other than the
ones expressly contemplated herein or in Section 6.13 hereof unless the Loan
Parties shall have delivered to the Collateral Agent appropriate Credit Card
Notifications consistent with the provisions of Section 6.13 and reasonably
satisfactory to the Collateral Agent.


          7.15
Adjusted Availability.


          Permit
Adjusted Availability at any time to be less than the greater of (i)
$20,000,000 and (ii) ten (10%) percent of the Borrowing Base.


ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES


          8.01
Events of Default. Any of the following shall constitute an
Event of Default:


	
  

 	
  

 
	
  

 	
           (a)
 Non-Payment. The Borrower or any other Loan Party fails to pay when
 and as required to be paid herein, (i) any amount of principal of any Loan or
 any L/C Obligation, or deposit any funds as Cash Collateral in respect of L/C
 Obligations, or (ii) any interest on any Loan or on any L/C Obligation, or
 any fee due hereunder, which failure continues for three Business Days, or
 (iii) any other amount payable hereunder or under any other Loan Document,
 which failure continues for three Business Days; or

 
	
  

 	
  

 
	
  

 	
           (b)
 Specific Covenants. Any Loan Party fails to perform or observe any
 term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03,
 6.05(a), 6.07, 6.10, 6.11, 6.12, 6.13 or 6.14 or Article VII, provided
 that no Event of Default shall be deemed to have arisen herein (i) with
 respect to Sections 6.02(a) and 6.02(b), unless such failure continues for
 two Business Days and such failure has not occurred more than twice in any
 consecutive twelve month period, (ii) with respect to Section 6.14(a), unless
 such failure continues for two Business Days, or (iii) with respect to
 Section 6.14(b), unless such failure continues for five Business Days; or

 
	
  

 	
  

 
	
  

 	
           (c)
 Other Defaults. Any Loan Party fails to perform or observe any other
 covenant or agreement (not specified in subsection (a) or (b) above)
 contained in any Loan Document on 

 


-99-





EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 its
 part to be performed or observed and such failure continues for thirty (30)
 days after the earlier of notice thereof from the Administrative Agent or the
 Required Lenders to the Borrower or a Responsible Officer of the Borrower
 obtaining knowledge thereof; or

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (e)
 Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails
 to make any payment when due (whether by scheduled maturity, required
 prepayment, acceleration, demand, or otherwise) and such payment is not made
 within any applicable grace period in respect of any Material Indebtedness
 (including undrawn committed or available amounts and including amounts owing
 to all creditors under any combined or syndicated credit arrangement), or (B)
 fails to observe or perform any other agreement or condition relating to any
 such Material Indebtedness or contained in any instrument or agreement
 evidencing, securing or relating thereto, or any other event occurs, the
 effect of which default or other event is to cause, or to permit the holder or
 holders of such Material Indebtedness (or a trustee or agent on behalf of
 such holder or holders) to cause, with the giving of notice if required, such
 Indebtedness to be demanded or to become due or to be repurchased, prepaid,
 defeased or redeemed (automatically or otherwise), or an offer to repurchase,
 prepay, defease or redeem such Indebtedness to be made, prior to its stated
 maturity; provided that this clause (i)(B) shall not apply to secured
 Indebtedness of a Loan Party or a Subsidiary permitted hereunder that becomes
 due upon the sale or transfer by such Loan Party or Subsidiary of the assets
 securing such Indebtedness, or (ii) there occurs under any Swap Contract an
 Early Termination Date (as defined in such Swap Contract) resulting from (A)
 any event of default under such Swap Contract as to which a Loan Party or any
 Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract)
 or (B) any Termination Event (as so defined) under such Swap Contract as to
 which a Loan Party or any Subsidiary thereof is an Affected Party (as so
 defined) and, in either event, the Swap Termination Value owed by the Loan
 Party or such Subsidiary as a result thereof is greater than $5,000,000 and
 such Loan Party or Subsidiary is unable to pay such amount upon such
 termination; or

 
	
  

 	
  

 
	
  

 	
           (f)
 Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
 (other than any Immaterial Subsidiary) institutes or consents to the
 institution of any proceeding under any Debtor Relief Law, or makes an assignment
 for the benefit of creditors; or applies for or consents to the appointment
 of any receiver, trustee, custodian, conservator, liquidator, rehabilitator
 or similar officer for it or for all or any material part of its property; or
 a proceeding shall be commenced or a petition filed, without the application
 or consent of such Person, seeking or requesting the appointment of any
 receiver, trustee, custodian, conservator, liquidator, rehabilitator or
 similar officer is appointed and the appointment continues undischarged,
 undismissed or unstayed for 60 calendar days or an order or decree approving
 or ordering any of the foregoing shall be entered; or any proceeding under
 any Debtor Relief Law relating to any such Person or to all or any material
 part of its property is instituted without the consent of such Person and
 continues undismissed or unstayed for 60 calendar days, or an order for
 relief is entered in any such proceeding; or

 
	
  

 	
  

 
	
  

 	
           (g)
 Inability to Pay Debts; Attachment. (i) Any Loan Party or any
 Subsidiary thereof (other than any Immaterial Subsidiary) becomes unable or
 admits in writing its inability or fails generally to pay its debts as they
 become due in the ordinary course of business, or (ii) any writ or warrant of
 attachment or execution or similar process is issued or levied against all or
 any 

 


-100-






EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 material
 part of the property of any such Person and is not released, vacated or fully
 bonded within 20 days after its issuance or levy; or

 
	
  

 	
  

 
	
  

 	
           (h)
 Judgments. There is entered against any Loan Party or any Subsidiary
 thereof (i) one or more final judgments or orders for the payment of money in
 an aggregate amount (as to all such judgments and orders) exceeding
 $15,000,000 and such judgment(s) or order(s) shall continue unsatisfied or
 unstayed for a period of 10 consecutive days, or (ii) any one or more
 non-monetary judgments that have, or could reasonably be expected to have,
 individually or in the aggregate, a Material Adverse Effect and, in either
 case, (A) enforcement proceedings are commenced by any creditor upon such
 judgment or order, or (B) such judgment or order, by reason of a pending
 appeal or otherwise, shall not have been satisfied, vacated, discharged,
 stayed or bonded for a period of 20 consecutive days; or 

 
	
  

 	
  

 
	
  

 	
           (i)
 ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
 Multiemployer Plan which has resulted or could reasonably be expected to
 result in liability of the Borrower under Title IV of ERISA to the Pension
 Plan, Multiemployer Plan or the PBGC which would reasonably likely result in
 a Material Adverse Effect, or (ii) the Borrower or any ERISA Affiliate fails
 to pay when due, after the expiration of any applicable grace period, any
 installment payment with respect to its withdrawal liability under Section
 4201 of ERISA under a Multiemployer Plan which would reasonably likely result
 in a Material Adverse Effect; or

 
	
  

 	
  

 
	
  

 	
           (j)
 Invalidity of Loan Documents. (i) Any provision of any Loan Document,
 at any time after its execution and delivery and for any reason other than as
 expressly permitted hereunder or thereunder or satisfaction in full of all
 the Obligations, ceases to be in full force and effect; or any Loan Party
 contests in any manner the validity or enforceability of any provision of any
 Loan Document; or any Loan Party denies that it has any or further liability
 or obligation under any provision of any Loan Document, or purports to
 revoke, terminate or rescind any provision of any Loan Document or seeks to
 avoid, limit or otherwise adversely affect any Lien purported to be created
 under any Security Document; or (ii) any Lien purported to be created under
 any Security Document shall cease to be (other than pursuant to the terms
 thereof), or shall be asserted by any Loan Party (or, with respect to any
 material assets of the type included in the Borrowing Base, any other Person)
 not to be, a valid and perfected Lien on any Collateral (other than an
 immaterial portion of the Collateral not of the type included in the Borrowing
 Base, as determined by the Administrative Agent in its Permitted Discretion),
 with the priority required by the applicable Security Document, except to the
 extent resulting from the failure of the Agents to file UCC continuation
 statements or to maintain “control” (as such term is defined in the UCC), as
 applicable; or

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (l)
 Cessation of Business. Except as otherwise expressly permitted
 hereunder, any Loan Party shall take any action to suspend the operation of
 the business of the Loan Parties, taken as a whole, in the ordinary course,
 including, without limitation, liquidation of all or a material portion of
 its assets or Store locations, or employ an agent or other third party to
 conduct a program of closings, liquidations or “Going-Out-Of-Business” sales
 of any material portion of its business; or

 
	
  

 	
  

 
	
  

 	
           (m)
 Indictment. The indictment of any Loan Party, under any Applicable Law
 where the crime alleged would constitute a felony under Applicable Law and
 such indictment remains unquashed or such legal process remains undismissed
 for a period of 90 days or more, unless the 

 


-101-





EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 Administrative
 Agent, in its reasonable discretion, determines that the indictment is not
 material; or

 
	
  

 	
  

 
	
  

 	
           (n)
 Subordination. Any payments of principal of or premium and interest on
 any Subordinated Indebtedness are made or received in violation of the
 subordination provisions of the documents evidencing or governing such
 Subordinated Indebtedness or any other breach of the subordination provisions
 of the documents evidencing or governing such Subordinated Indebtedness
 occurs. 

 
	
  

 	
  

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

 
	
  

 	
  

 
	
  

 	
           (a)
 declare the Commitments of each Lender to make Loans and any obligation of
 the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
 Commitments and obligation shall be terminated;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (c)
 require that the Loan Parties Cash Collateralize the L/C Obligations; and

 
	
  

 	
  

 
	
  

 	
           (d)
 whether or not the maturity of the Obligations shall have been accelerated
 pursuant hereto, proceed to protect, enforce and exercise all rights and
 remedies of the Credit Parties under this Agreement, any of the other Loan
 Documents or applicable Law, including, but not limited to, by suit in
 equity, action at law or other appropriate proceeding, whether for the
 specific performance of any covenant or agreement contained in this Agreement
 and the other Loan Documents or any instrument pursuant to which the
 Obligations or Other Liabilities are evidenced, and, if such amount shall
 have become due, by declaration or otherwise, proceed to enforce the payment
 thereof or any other legal or equitable right of the Credit Parties;

 


provided, however, that upon the occurrence of
any Event of Default with respect to any Loan Party or any Subsidiary thereof
under Section 8.01(f), the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable, and the obligation of the Loan Parties to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.


          No remedy
herein is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of Law.


          8.03 Application of Funds. After
the exercise of remedies provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations
and Other Liabilities shall be applied by the Administrative Agent in the
following order:


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EXECUTION VERSION


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           Second,
 to payment of that portion of the Obligations constituting indemnities,
 expenses, and other amounts (other than principal, interest and fees) payable
 to the Lenders and the L/C Issuer (including expenses to the respective
 Lenders and the L/C Issuer and amounts payable under Article III),
 ratably among them in proportion to the amounts described in this clause Second
 payable to them;

 
	
  

 	
  

 
	
  

 	
           Third,
 to the extent not previously reimbursed by the Lenders, to payment to the
 Lenders of that portion of the Obligations constituting principal and accrued
 and unpaid interest on any Permitted Overadvances, ratably among the Lenders
 in proportion to the amounts described in this clause Third payable to
 them;

 
	
  

 	
  

 
	
  

 	
           Fourth,
 to the extent that Swing Line Loans have not been refinanced by a Committed
 Loan, payment to the Swing Line Lender of that portion of the Obligations
 constituting accrued and unpaid interest and unpaid principal on the Swing
 Line Loans;

 
	
  

 	
  

 
	
  

 	
           Fifth,
 to payment of that portion of the Obligations constituting accrued and unpaid
 interest on the Loans, L/C Borrowings and other Obligations, and fees
 (including Letter of Credit Fees), ratably among the Lenders and the L/C
 Issuer in proportion to the respective amounts described in this clause Fifth
 payable to them;

 
	
  

 	
  

 
	
  

 	
           Sixth,
 to payment of that portion of the Obligations constituting unpaid principal
 of the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer
 in proportion to the respective amounts described in this clause Sixth
 held by them;

 
	
  

 	
  

 
	
  

 	
           Seventh,
 to the Administrative Agent for the account of the L/C Issuer, to Cash
 Collateralize that portion of L/C Obligations comprised of the aggregate
 undrawn amount of Letters of Credit; 

 
	
  

 	
  

 
	
  

 	
           Eighth,
 to payment of all other Obligations (including without limitation the cash
 collateralization of unliquidated indemnification obligations as provided in
 Section 10.04), ratably among the Credit Parties in proportion to the
 respective amounts described in this clause Eighth held by them;

 
	
  

 	
  

 
	
  

 	
           Ninth,
 to payment of that portion of the Other Liabilities arising from Cash
 Management Services to the extent secured under the Security Documents,
 ratably among the Credit Parties in proportion to the respective amounts
 described in this clause Ninth held by them;

 
	
  

 	
  

 
	
  

 	
           Tenth,
 to payment of all other Other Liabilities arising from Bank Products to the
 extent secured under the Security Documents, ratably among the Credit Parties
 in proportion to the respective amounts described in this clause Tenth
 held by them; and

 
	
  

 	
  

 
	
  

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

 


Subject
to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Seventh above shall be
applied to satisfy drawings under such Letters of 


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EXECUTION VERSION


Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations and Other Liabilities, if any, in the order set forth
above.


ARTICLE IX

ADMINISTRATIVE AGENT


          9.01
Appointment and Authority. 


	
  

 	
  

 
	
  

 	
           (a)
 Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of
 America to act on its behalf as the Administrative Agent hereunder and under
 the other Loan Documents and authorizes the Administrative Agent to take such
 actions on its behalf and to exercise such powers as are delegated to the
 Administrative Agent by the terms hereof or thereof, together with such
 actions and powers as are reasonably incidental thereto. The provisions of
 this Article (other than the provisions of Section 9.06) are solely for the
 benefit of the Administrative Agent, the Collateral Agent, the Lenders and
 the L/C Issuer, and no Loan Party or any Subsidiary thereof shall have rights
 as a third party beneficiary of any of such provisions.

 
	
  

 	
  

 
	
  

 	
           (b)
 Each of the Lenders (in its capacities as a Lender), Swing Line Lender and
 the L/C Issuer hereby irrevocably appoints Bank of America as Collateral
 Agent and authorizes the Collateral Agent to act as the agent of such Lender
 and the L/C Issuer for purposes of acquiring, holding and enforcing any and
 all Liens on Collateral granted by any of the Loan Parties to secure any of
 the Obligations and Other Liabilities, together with such powers and
 discretion as are reasonably incidental thereto. In this connection, the
 Collateral Agent, as “collateral agent” and any co-agents, sub-agents and
 attorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.05
 for purposes of holding or enforcing any Lien on the Collateral (or any
 portion thereof) granted under the Collateral Documents, or for exercising
 any rights and remedies thereunder at the direction of the Collateral Agent),
 shall be entitled to the benefits of all provisions of this Article IX
 and Article X (including Section 10.04(c)), as though such co-agents,
 sub-agents and attorneys-in-fact were the “collateral agent” under the Loan
 Documents, as if set forth in full herein with respect thereto.

 


          9.02
Rights as a Lender. The Persons serving as the Agents hereunder
shall have the same rights and powers in their capacity as a Lender as any
other Lender and may exercise the same as though they were not the
Administrative Agent or the Collateral Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent or the
Collateral Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Loan Parties or any Subsidiary or other Affiliate thereof
as if such Person were not the Administrative Agent or the Collateral Agent
hereunder and without any duty to account therefor to the Lenders.


          9.03
Exculpatory Provisions. The Agents shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agents:


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


-104-





EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 the
 other Loan Documents that the Administrative Agent or the Collateral Agent,
 as applicable, is required to exercise as directed in writing by the Required
 Lenders (or such other number or percentage of the Lenders as shall be
 expressly provided for herein or in the other Loan Documents), provided
 that no Agent shall be required to take any action that, in its respective
 opinion or the opinion of its counsel, may expose such Agent to liability or
 that is contrary to any Loan Document or applicable law; and

 
	
  

 	
  

 
	
  

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

 


No
Agent shall be liable for any action taken or not taken by it (i) with the
Consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as such Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or
willful misconduct as determined by a final and non-appealable judgment of a
court of competent jurisdiction. 


          The Agents
shall not be deemed to have knowledge of any Default unless and until notice
describing such Default is given to such Agent by the Loan Parties, a Lender or
the L/C Issuer. In the event that the Agents obtains such actual knowledge or
receives such a notice, the Agents shall give prompt notice thereof to each of
the other Credit Parties. Upon the occurrence of an Event of Default, the
Agents shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders. Unless and until the
Agents shall have received such direction, the Agents may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to any such Default or Event of Default as they shall deem advisable in
the best interest of the Credit Parties. In no event shall the Agents be
required to comply with any such directions to the extent that any Agent believes
that its compliance with such directions would be unlawful.


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


          9.04 Reliance by Agents. 


          Each Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including, but not limited to, any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person. Each Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may


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EXECUTION VERSION


presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received written notice to
the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. Each Agent may consult with
legal counsel (who may be counsel for any Loan Party), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.


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


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


          Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender,
(b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the


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EXECUTION VERSION


retiring L/C Issuer to effectively assume the obligations of the
retiring L/C Issuer with respect to such Letters of Credit.


          9.07
Non-Reliance on Administrative Agent and Other Lenders. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Agents or any other Lender or any of their Related Parties
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
and the L/C Issuer also acknowledges that it will, independently and without reliance
upon the Agents or any other Lender or any of their Related Parties and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder. Except as provided
in Section 9.12, the Agents shall not have any duty or responsibility to
provide any Credit Party with any other credit or other information concerning
the affairs, financial condition or business of any Loan Party that may come
into the possession of the Agents.


          9.08
No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Co-Syndication Agents or
Documentation Agent listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
Collateral Agent, a Lender or the L/C Issuer hereunder.


          9.09
Administrative Agent May File Proofs of Claim. In case
of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the
Loan Parties) shall be entitled and empowered, by intervention in such
proceeding or otherwise


	
  

 	
  

 
	
  

 	
           (a)
 to file and prove a claim for the whole amount of the principal and interest
 owing and unpaid in respect of the Loans, L/C Obligations and all other
 Obligations and Other Liabilities that are owing and unpaid and to file such
 other documents as may be necessary or advisable in order to have the claims
 of the Lenders, the L/C Issuer, the Administrative Agent and the other Credit
 Parties (including any claim for the reasonable compensation, expenses,
 disbursements and advances of the Lenders, the L/C Issuer, the Administrative
 Agent, such Credit Parties and their respective agents and counsel and all
 other amounts due the Lenders, the L/C Issuer the Administrative Agent and
 such Credit Parties under Sections 2.03(i), 2.03(j) and 2.03(k) as
 applicable, 2.09 and 10.04) allowed in such judicial proceeding; and

 
	
  

 	
  

 
	
  

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

 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent
and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.09 and 10.04.


          Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization,


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EXECUTION VERSION


arrangement, adjustment or composition affecting the Obligations or
Other Liabilities or the rights of any Lender or the L/C Issuer or to authorize
the Administrative Agent to vote in respect of the claim of any Lender or the
L/C Issuer in any such proceeding.


          9.10
Collateral and Guaranty Matters. The Credit Parties irrevocably authorize the
Agents, at their option and in their discretion,


	
  

 	
  

 
	
  

 	
           (a)
 to release any Lien on any property granted to or held by the Collateral
 Agent under any Loan Document (i) upon termination of the Aggregate
 Commitments and payment in full of all Obligations (other than contingent indemnification
 obligations for which no claim has been asserted) and the expiration or
 termination of all Letters of Credit (unless cash collateralized or supported
 by back-to-back letters of credit reasonably satisfactory to the L/C Issuer),
 (ii) that is Disposed of or to be Disposed of as part of or in connection
 with any Disposition permitted hereunder or under any other Loan Document, or
 (iii) if approved, authorized or ratified in writing by the Required Lenders
 (or such other number or percentage of the Lenders as shall be expressly
 provided for herein or in the other Loan Documents) in accordance with
 Section 10.01;

 
	
  

 	
  

 
	
  

 	
           (b)
 to subordinate any Lien on any property granted to or held by the Collateral
 Agent under any Loan Document to the holder of any Lien on such property that
 is permitted by clause (h) of the definition of Permitted Encumbrances; and

 
	
  

 	
  

 
	
  

 	
           (c)
 to release any Guarantor from its obligations under the Facility Guaranty and
 each other applicable Loan Document) if such Person ceases to be a Subsidiary
 as a result of a transaction permitted hereunder.

 


Upon
request by any Agent at any time, the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents) will confirm in writing such Agent’s authority to release
or subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Facility Guaranty and each
other applicable Loan Document pursuant to this Section 9.10. In each case as
specified in this Section 9.10, the Agents will, at the Loan Parties’ expense,
execute and deliver to the applicable Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and Lien granted under the Security Documents or to
subordinate its interest in such item, or to release such Guarantor from its
obligations under the Facility Guaranty and each other applicable Loan
Document, in each case in accordance with the terms of the Loan Documents and
this Section 9.10.


          9.11
Notice of Transfer.


          The Agents
may deem and treat a Lender party to this Agreement as the owner of such
Lender’s portion of the Obligations for all purposes, unless and until, and
except to the extent, an Assignment and Acceptance shall have become effective
as set forth in Section 10.06.


          9.12
Reports and Financial Statements.


          By signing
this Agreement, each Lender:


	
  

 	
  

 
	
  

 	
           (a)
 agrees to furnish the Administrative Agent after the occurrence and during
 the continuance of a Triggering Event (and thereafter at such frequency as
 the Administrative Agent may reasonably request) with a summary of all Other
 Liabilities due or to become due to such Lender. In connection with any
 distributions to be made hereunder, the Administrative Agent shall be
 entitled to assume that no amounts are due to any Lender on account of Other
 Liabilities 

 


-108-





EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 unless
 the Administrative Agent has received written notice thereof from such Lender
 and if such notice is received, the Administrative Agent shall be entitled to
 assume that the only amounts due to such Lender on account of Other
 Liabilities is the amount set forth in such notice;

 
	
  

 	
  

 
	
  

 	
           (b)
 is deemed to have requested that the Administrative Agent furnish such
 Lender, promptly after they become available, copies of all Borrowing Base
 Certificates and financial statements required to be delivered by the
 Borrower hereunder and all commercial finance examinations and appraisals of
 the Collateral received by the Agents (collectively, the “Reports”);

 
	
  

 	
  

 
	
  

 	
           (c)
 expressly agrees and acknowledges that the Administrative Agent makes no
 representation or warranty as to the accuracy of the Reports, and shall not
 be liable for any information contained in any Report;

 
	
  

 	
  

 
	
  

 	
           (d)
 expressly agrees and acknowledges that the Reports are not comprehensive
 audits or examinations, that the Agents or any other party performing any
 audit or examination will inspect only specific information regarding the
 Loan Parties and will rely significantly upon the Loan Parties’ books and
 records, as well as on representations of the Loan Parties’ personnel;

 
	
  

 	
  

 
	
  

 	
           (e)
 agrees to keep all Reports confidential in accordance with the provisions of
 Section 10.07 hereof; and

 
	
  

 	
  

 
	
  

 	
           (f)
 without limiting the generality of any other indemnification provision
 contained in this Agreement, agrees: (i) to hold the Agents and any such
 other Lender preparing a Report harmless from any action the indemnifying
 Lender may take or conclusion the indemnifying Lender may reach or draw from
 any Report in connection with any Credit Extensions that the indemnifying
 Lender has made or may make to the Borrower, or the indemnifying Lender’s
 participation in, or the indemnifying Lender’s purchase of, a Loan or Loans;
 and (ii) to pay and protect, and indemnify, defend, and hold the Agents and
 any such other Lender preparing a Report harmless from and against, the
 claims, actions, proceedings, damages, costs, expenses, and other amounts
 (including attorney costs) incurred by the Agents and any such other Lender
 preparing a Report as the direct or indirect result of any third parties who
 might obtain all or part of any Report through the indemnifying Lender.

 


          9.13
Agency for Perfection.


          Each Lender
hereby appoints each other Lender as agent for the purpose of perfecting Liens
for the benefit of the Agents and the Lenders, in assets which, in accordance
with Article 9 of the UCC or any other applicable Law of the United States can
be perfected only by possession. Should any Lender (other than the Agents)
obtain possession of any such Collateral, such Lender shall notify the Agents thereof,
and, promptly upon the Collateral Agent’s request therefor shall deliver such
Collateral to the Collateral Agent or otherwise deal with such Collateral in
accordance with the Collateral Agent’s instructions.


          9.14 Indemnification of Agents. The Lenders
shall indemnify the Agents, the L/C Issuer and any other Related Party (to the
extent not reimbursed by the Loan Parties and without limiting the obligations
of Loan Parties hereunder), ratably according to their respective Applicable
Percentages, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any Agent, the L/C Issuer and any other Related Party in any
way relating to or arising out of this Agreement or any other Loan Document or
any action taken or omitted to be taken by any Agent, the L/C Issuer and any
other Related Party in connection therewith; provided, that no Lender
shall


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EXECUTION VERSION


be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s, the L/C Issuer’s and their Related Parties’ gross
negligence or willful misconduct as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


          9.15 Relation among Lenders. The Lenders
are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Agents)
authorized to act for, any other Lender.


ARTICLE X

MISCELLANEOUS


          10.01 Amendments, Etc. No amendment or waiver of
any provision of this Agreement or any other Loan Document, and no Consent to
any departure by any Loan Party therefrom, shall be effective unless in writing
signed by the Administrative Agent, with the Consent of the Required Lenders,
and the Borrower or the applicable Loan Party, as the case may be, and each
such waiver or Consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no
such amendment, waiver or consent shall:


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (b)
 postpone any date fixed by this Agreement or any other Loan Document for (i)
 any payment or mandatory prepayment of principal, interest, fees or other
 amounts due to the applicable Lenders (or any of them) hereunder or under any
 of the other Loan Documents without the written Consent of each Lender
 entitled to such payment, or (ii) any scheduled or mandatory reduction of the
 Aggregate Commitments hereunder or under any other Loan Document without the
 written Consent of each applicable Lender;

 
	
  

 	
  

 
	
  

 	
           (c)
 reduce the principal of, or the rate of interest specified herein on, any
 Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to
 this Section 10.01) any fees or other amounts payable hereunder or under any
 other Loan Document, without the written Consent of each Lender entitled to
 such amount; provided, however, that only the Consent of the Required
 Lenders shall be necessary to amend the definition of “Default Rate” or to
 waive any obligation of the Borrower to pay interest or Letter of Credit Fees
 at the Default Rate;

 
	
  

 	
  

 
	
  

 	
           (d)
 change Section 2.13 or Section 8.03 in a manner that would alter the pro rata
 sharing of payments required thereby without the written Consent of each
 Lender;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (f)
 except as expressly permitted hereunder or under any other Loan Document,
 release, or limit the liability of, any Loan Party without the written
 Consent of each Lender;

 
	
  

 	
  

 
	
  

 	
           (g)
 except for Permitted Dispositions, release all or substantially all of the
 Collateral from the Liens of the Security Documents without the written
 Consent of each Lender;

 


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EXECUTION VERSION


	
  

 	
  

 
	
  

 	
           (h)
 change the definition of the term “Borrowing Base” or any component
 definition thereof if as a result thereof the amounts available to be
 borrowed by the Borrower would be increased without the written Consent of
 each Lender, provided that the foregoing shall not limit
 the discretion of the Administrative Agent to change, establish or eliminate
 any Reserves;

 
	
  

 	
  

 
	
  

 	
           (i)
 modify the definition of Permitted Overadvance so as to increase the amount
 thereof or, except as provided in such definition, the time period for a
 Permitted Overadvance without the written Consent of each Lender; and

 
	
  

 	
  

 
	
  

 	
           (j)
 except as expressly permitted herein or in any other Loan Document,
 subordinate the Obligations hereunder or the Liens granted hereunder or under
 the other Loan Documents, to any other Indebtedness or Lien, as the case may
 be without the written Consent of each Lender;

 


and, provided further, that (i) no amendment, waiver or
Consent shall, unless in writing and signed by the L/C Issuer in addition to
the Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any Issuer Document relating to any Letter of Credit issued
or to be issued by it; (ii) no amendment, waiver or Consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under this
Agreement; (iii) no amendment, waiver or Consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; (iv) no amendment, waiver or Consent shall, unless in
writing and signed by the Collateral Agent in addition to the Lenders required
above, affect the rights or duties of the Collateral Agent under this Agreement
or any other Loan Document, and (v) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the
consent of all Lenders or each affected Lender may be effected with the consent
of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without
the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender disproportionately adversely relative to other
affected Lenders shall require the consent of such Defaulting Lender.


          Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, (x) no
provider or holder of any Bank Products or Cash Management Services shall have
any voting or approval rights hereunder (or be deemed a Lender) solely by
virtue of its status as the provider or holder of such agreements or products
or the Obligations owing thereunder, nor shall the consent of any such provider
or holder be required (other than in their capacities as Lenders, to the extent
applicable) for any matter hereunder or under any of the other Loan Documents,
including as to any matter relating to the Collateral or the release of
Collateral or any Loan Party, and (y) any Loan Document may be amended and
waived with the consent of the Administrative Agent at the request of the
Borrower without the need to obtain the consent of any other Lender if such
amendment or waiver is delivered in order (i) to comply with local Law or
advice of local counsel, (ii) to cure ambiguities or defects or
(iii) to cause any Loan Document to be consistent with this Agreement and
the other Loan Documents


          If any
Lender does not Consent (a “Non-Consenting Lender”) to a proposed
amendment, waiver, consent or release with respect to any Loan Document that
requires the Consent of each Lender and that has been approved by the Required
Lenders, the Borrower may replace such Non-Consenting Lender in accordance with
Section 10.13; provided that such amendment, waiver, consent or release
can be effected as a result of the assignment contemplated by such Section
(together with all other such assignments required by the Borrower to be made
pursuant to this paragraph).


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EXECUTION VERSION


          10.02
Notices; Effectiveness; Electronic Communications. 


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
                     (i)
 if to the Loan Parties, the Agents, the L/C Issuer or the Swing Line Lender,
 to the address, telecopier number, electronic mail address or telephone
 number specified for such Person on Schedule 10.02; and 

 
	
  

 	
  

 
	
  

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

 


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


	
  

 	
  

 
	
  

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

 


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


	
  

 	
  

 
	
  

 	
           (c) The
 Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
 PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
 BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
 LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY
 OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-

 


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EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER
 CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
 MATERIALS OR THE PLATFORM. In no event shall the Agents or any of their
 Related Parties (collectively, the “Agent Parties”) have any liability
 to any Loan Party, any Lender, the L/C Issuer or any other Person for losses,
 claims, damages, liabilities or expenses of any kind (whether in tort,
 contract or otherwise) arising out of the Loan Parties’ or the Administrative
 Agent’s transmission of Borrower Materials through the Internet, except to
 the extent that such losses, claims, damages, liabilities or expenses are
 determined by a court of competent jurisdiction by a final and nonappealable
 judgment to have resulted from the gross negligence or willful misconduct of
 such Agent Party; provided, however, that in no event shall any
 Agent Party have any liability to any
 Loan Party, any Lender, the L/C Issuer or any other Person for
 indirect, special, incidental, consequential or punitive damages (as opposed
 to direct or actual damages).

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


          10.03 No Waiver; Cumulative Remedies. No
failure by any Credit Party to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder or under any other Loan Document preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges provided herein
and in the other Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
any Credit Party may have had notice or knowledge of such Default at the time.


          10.04 Expenses; Indemnity; Damage Waiver. 


	
  

 	
  

 
	
  

 	
           (a) Costs
 and Expenses. The Borrower shall pay (i) all reasonable and documented
 out-of-pocket expenses incurred by the Agents, the Arranger and any Person
 providing Cash Management Services or furnishing Bank Products to any of the
 Loan Parties, in connection with 

 


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EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 this Agreement and the other Loan Documents, including without
 limitation (A) the reasonable and documented fees, charges and disbursements
 of (1) counsel for the Agents and the Arranger, (2) appraisers, (3)
 commercial finance examiners, and (4) all such out-of-pocket expenses
 incurred during any workout, restructuring or negotiations in respect of the
 Obligations and Other Liabilities, as wells as expenses of any outside
 consultants engaged by the Agents, (B) in connection with (1) the syndication
 of the credit facilities provided for herein, (2) the preparation,
 negotiation, administration, management, execution and delivery of this
 Agreement and the other Loan Documents or any amendments, modifications or
 waivers of the provisions thereof (whether or not the transactions
 contemplated hereby or thereby shall be consummated), (3) the enforcement or
 protection of their rights in connection with this Agreement or the Loan
 Documents or efforts to preserve, protect, collect, or enforce the Collateral
 or in connection with any proceeding under any Debtor Relief Laws, or (4) any
 workout, restructuring or negotiations in respect of any Obligations and
 Other Liabilities, and (ii) with respect to the L/C Issuer, all reasonable
 out-of-pocket expenses incurred in connection with the issuance, amendment,
 renewal or extension of any Letter of Credit or any demand for payment
 thereunder; and (iii) all reasonable out-of-pocket expenses incurred by the
 Credit Parties who are not the Agents, the Arranger, the L/C Issuer or any
 Person providing Cash Management Services or furnishing Bank Products to any
 of the Loan Parties, after the occurrence and during the continuance of an
 Event of Default, provided that such Credit Parties shall be entitled to
 reimbursement for no more than one counsel representing all such Credit
 Parties (absent a conflict of interest in which case the Credit Parties may
 engage and be reimbursed for additional counsel).

 
	
  

 	
  

 
	
  

 	
           (b) Indemnification
 by the Loan Parties. The Loan Parties shall indemnify the Agents (and any
 sub-agent thereof), each other Credit Party, and each Related Party of any of
 the foregoing Persons (each such Person being called an “Indemnitee”)
 against, and hold each Indemnitee harmless from, any and all losses, claims,
 causes of action, damages, liabilities, settlement payments, costs, and
 related expenses (including the fees, charges and disbursements of any
 counsel for any Indemnitee but excluding Taxes, which shall be governed by
 Section 3.01), incurred by any Indemnitee or asserted against any Indemnitee
 by any third party or by the Borrower or any other Loan Party arising out of,
 in connection with, or as a result of (i) the execution or delivery of
 this Agreement, any other Loan Document or any agreement or instrument
 contemplated hereby or thereby, the performance by the parties hereto of
 their respective obligations hereunder or thereunder or the consummation of
 the transactions contemplated hereby or thereby, or, in the case of the
 Agents (and any sub-agents thereof) and their Related Parties only, the
 administration of this Agreement and the other Loan Documents, (ii) any
 Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
 (including any refusal by the L/C Issuer to honor a demand for payment under
 a Letter of Credit if the documents presented in connection with such demand
 do not strictly comply with the terms of such Letter of Credit,
 (iii) any actual or alleged presence or release of Hazardous Materials
 on or from any property owned or operated by any Loan Party or any of its
 Subsidiaries, or any Environmental Liability related in any way to any Loan
 Party or any of its Subsidiaries, (iv) any claims of, or amounts paid by any
 Credit Party to, a Blocked Account Bank or other Person which has entered
 into a control agreement with any Credit Party hereunder, or (v) any actual
 or prospective claim, litigation, investigation or proceeding relating to any
 of the foregoing, whether based on contract, tort or any other theory,
 whether brought by a third party or by the Borrower or any other Loan Party
 or any of the Loan Parties’ directors, shareholders or creditors, and
 regardless of whether any Indemnitee is a party thereto, in all cases,
 whether or not caused by or arising, in whole or in part, out of the
 comparative, contributory or sole negligence of the Indemnitee; provided
 that such indemnity shall not, as to any Indemnitee, be available to the
 extent that such losses, claims, damages, liabilities or related expenses
 (x) are determined by a court of competent jurisdiction by final and
 nonappealable judgment to have resulted from the 

 


-114-






EXECUTION VERSION


	
  

 	
  

 
	
  

 	
 gross negligence, bad faith or willful misconduct of such Indemnitee
 or (y) result from a claim brought by the Borrower or any other Loan Party
 against an Indemnitee for breach in bad faith of such Indemnitee’s
 obligations hereunder or under any other Loan Document, if the Borrower or
 such Loan Party has obtained a final and nonappealable judgment in its favor
 on such claim as determined by a court of competent jurisdiction.

 
	
  

 	
  

 
	
  

 	
           (c) Reimbursement
 by Lenders. Without limiting their obligations under Section 9.14 hereof,
 to the extent that the Loan Parties for any reason fail to indefeasibly pay
 any amount required under subsection (a) or (b) of this Section
 10.04 to be paid by it, each Lender severally agrees to pay to the Agents (or
 any such sub-agent), the L/C Issuer or such Related Party, as the case may
 be, such Lender’s Applicable Percentage (determined as of the time that the
 applicable unreimbursed expense or indemnity payment is sought) of such
 unpaid amount, provided that the unreimbursed expense or indemnified
 loss, claim, damage, liability or related expense, as the case may be, was
 incurred by or asserted against the Agents (or any such sub-agent) or the L/C
 Issuer in its capacity as such, or against any Related Party of any of the
 foregoing acting for the Agents (or any such sub-agent) or L/C Issuer in
 connection with such capacity. The obligations of the Lenders under this subsection (c)
 are subject to the provisions of Section 2.12(d).

 
	
  

 	
  

 
	
  

 	
           (d) Waiver
 of Consequential Damages, Etc. To the fullest extent permitted by
 applicable Law, the Loan Parties shall not assert, and hereby waive, any
 claim against any Indemnitee, on any theory of liability, for special,
 indirect, consequential or punitive damages (as opposed to direct or actual
 damages) arising out of, in connection with, or as a result of, this
 Agreement, any other Loan Document or any agreement or instrument contemplated
 hereby, the transactions contemplated hereby or thereby, any Loan or Letter
 of Credit or the use of the proceeds thereof. No Indemnitee shall be liable
 for any damages arising from the use by unintended recipients of any
 information or other materials distributed to such unintended recipients by
 such Indemnitee through telecommunications, electronic or other information
 transmission systems in connection with this Agreement or the other Loan
 Documents or the transactions contemplated hereby or thereby other than for
 direct or actual damages resulting from the gross negligence or willful
 misconduct of such Indemnitee as determined by a final and nonappealable
 judgment of a court of competent jurisdiction.

 
	
  

 	
  

 
	
  

 	
           (e) Payments.
 All amounts due under this Section shall be payable on demand (accompanied by
 back-up documentation to the extent available).

 
	
  

 	
  

 
	
  

 	
           (f) Survival.
 The agreements in this Section shall survive the resignation of any Agent and
 the L/C Issuer, the assignment of any Commitment or Loan by any Lender, the
 replacement of any Lender, the termination of the Aggregate Commitments and
 the repayment, satisfaction or discharge of all the other Obligations.

 


          10.05 Payments Set Aside. To
the extent that any payment by or on behalf of the Loan Parties is made to any
Credit Party, or any Credit Party exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Credit Party in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender and the L/C Issuer severally agrees to pay to the Agents
upon demand its Applicable Percentage (without duplication) of any amount so
recovered from or repaid by the Agents, plus interest thereon from the date of
such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in 


-115-





EXECUTION VERSION


effect. The obligations of the Lenders and the L/C Issuer under clause
(b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.


          10.06
Successors and Assigns.


                    (a)
Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Loan Party
may assign or otherwise transfer any of its rights or obligations hereunder or
under any other Loan Document without the prior written Consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of Section 10.06(b), (ii) by way of
participation in accordance with the provisions of subsection Section 10.06(d),
or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 10.06(f) (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties
of each of the Credit Parties) any legal or equitable right, remedy or claim
under or by reason of this Agreement.


                    (b)
Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment(s) and the Loans
(including for purposes of this Section 10.06(b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


                              (i)
Minimum Amounts


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


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EXECUTION VERSION


	
  

 	
  

 
	
  

 	
                     (iii)
 Required Consents. No consent shall be required for any assignment except
 to the extent required by subsection (b)(i)(B) of this Section and, in
 addition:

 
	
  

 	
  

 
	
  

 	
                               (A)
 the consent of the Borrower (such consent not to be unreasonably withheld or
 delayed) shall be required unless (1) a Default has occurred and is
 continuing at the time of such assignment or (2) such assignment is to a
 Lender, an Affiliate of a Lender or an Approved Fund;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
                     (iv)
 Assignment and Assumption. The parties to each assignment shall
 execute and deliver to the Administrative Agent an Assignment and Assumption,
 together with a processing and recordation fee of $3,500, provided, however,
 that the Administrative Agent may, in its sole discretion, elect to waive
 such processing and recordation fee in the case of any assignment. The
 assignee, if it shall not be a Lender, shall deliver to the Administrative
 Agent an Administrative Questionnaire.

 
	
  

 	
  

 
	
  

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

 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 


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EXECUTION VERSION


3.04, 3.05, and 10.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment; provided, that except to
the extent otherwise expressly agreed by the affected parties, no assignment by
a Defaulting Lender will constitute a waiver or release of any claim of any
party hereunder arising from that Lender’s having been a Defaulting Lender.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection 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 Section 10.06(d).


                    (c)
Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent’s Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, absent manifest error, and the
Loan Parties, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any Lender
at any reasonable time and from time to time upon reasonable prior notice. This
Section 10.06(c) shall be construed so that the Loans and L/C Obligations are
at all times maintained in “registered form” within the meaning of section
163(f), 871(h)(2) and 881(c) of the Code.


                    (d)
Participations. Any Lender may at any time, without the consent of, or
notice to, the Loan Parties or the Administrative Agent, sell participations to
any Person (other than a natural person, a Defaulting Lender or the Loan
Parties or any of the Loan Parties’ Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); 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, (iii) such lender shall remain the holder of its Loans and owner
of its participation or other interest in any Letter of Credit for all purposes
hereunder, and (iv) the Loan Parties, the Agents, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any
Participant shall agree in writing to comply with all confidentiality
obligations set forth in Section 10.07 as if such Participant was a Lender
hereunder.


          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, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Loan Parties agree that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 10.06(b). To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as
an agent of the Borrower, maintain a register on which it enters the name and
address of each Participant and the principal amounts (and stated interest) of
each Participant’s interest in the Loans or other obligations under the Loan
Documents (the “Participant Register”); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to a
Participant’s interest in any 


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EXECUTION VERSION


commitments, loans, letters of credit or its other obligations under
any Loan Document) to any Person except to the extent that such disclosure is
necessary to establish that such commitment, loan, letter of credit or other
obligation is in registered form under Section 5f.103-1(c) of the United States
Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each Person whose
name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as
Administrative Agent) shall have no responsibility for maintaining a
Participant Register.


                    (e)
Limitations upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Loan
Parties, to comply with Section 3.01(e) as though it were a Lender.


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


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


                    (h)
Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 10 days’ notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 10 days’ notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall
retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender,
as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in 


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EXECUTION VERSION


substitution for the Letters of Credit, if any, outstanding at the time
of such succession or make other arrangements satisfactory to Bank of America
to effectively assume the obligations of Bank of America with respect to such
Letters of Credit.


          10.07
Treatment of Certain Information; Confidentiality. Each
of the Credit Parties agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, funding sources, attorneys, advisors and
representatives (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section 10.07, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to any Loan Party and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach
of this Section or (y) becomes available to any Credit Party or any of their
respective Affiliates on a non-confidential basis from a source (only if such
Credit Party has no knowledge that such source itself is not in breach of a
confidentiality obligation) other than the Loan Parties. 


          For
purposes of this Section, “Information” means all information received from the
Loan Parties or any Subsidiary thereof relating to the Loan Parties or any
Subsidiary thereof or their respective businesses, other than any such
information that is available to any Credit Party on a non-confidential basis
prior to disclosure by the Loan Parties or any Subsidiary thereof (provided
that if such information is furnished by a source known to such Credit Party to
be subject to a confidentiality obligation, such source, to the knowledge of
such Credit Party, is not in violation of such obligation by such disclosure).
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


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


          10.08
Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent or the Required
Lenders, to the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower or any other Loan
Party against any and all of the Obligations and Other Liabilities then due
under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, regardless of the adequacy of the Collateral, and irrespective of
whether or not 


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EXECUTION VERSION


such Lender or the L/C Issuer shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the
Borrower or such Loan Party are owed to a branch or office of such Lender or
the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness; provided, that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so
set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section 2.16 and, pending such
payment, shall be segregated by such Defaulting Lender from its other funds and
deemed held in trust for the benefit of the Administrative Agent, the L/C
Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right
of setoff. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


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


          10.10 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic image scan transmission (e.g., “pdf” or “tiff” via
email) shall be as effective as delivery of a manually executed counterpart of
this Agreement.


          10.11
Survival. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. Such representations and warranties
have been or will be relied upon by the Credit Parties, regardless of any
investigation made by any Credit Party or on their behalf and notwithstanding
that any Credit Party may have had notice or knowledge of any Default at the
time of any Credit Extension, and shall continue in full force and effect as
long as any Loan or any other Obligation (other than any contingent
indemnification obligations for which no claim has then been asserted)
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding. Further, the provisions of Sections 3.01, 3.04, 3.05 and
10.04 and Article IX shall survive and remain in full force and effect
regardless of the repayment of the Obligations, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any 


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EXECUTION VERSION


provision hereof. In connection with the termination of this Agreement
and the release and termination of the security interests in the Collateral,
the Agents may require such indemnities and collateral security as they shall
reasonably deem necessary or appropriate to protect the Credit Parties against
(x) loss on account of credits previously applied to the Obligations that may
subsequently be reversed or revoked, and (y) any obligations that may
thereafter arise with respect to the Other Liabilities.


          10.12
Severability. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Without limiting the foregoing provisions of this Section
10.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief
Laws, as determined in good faith by the Administrative Agent, the L/C Issuer
or the Swing Line Lender, as applicable, then such provisions shall be deemed
to be in effect only to the extent not so limited.


          10.13
Replacement of Lenders. If any Lender requests
compensation under Section 3.04, or if any Lender delivers a notice described
in Section 3.02, or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.01, or if any Lender is a Defaulting Lender or a Non-Consenting
Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (b) such
 Lender shall have received payment of an amount equal to the outstanding
 principal of its Loans and L/C Advances being so assigned, accrued interest
 thereon, accrued fees and all other amounts payable to it in respect thereof
 hereunder and under the other Loan Documents (including any amounts under
 Section 3.05) from the assignee (to the extent of such outstanding principal
 and accrued interest and fees) or the Borrower (in the case of all other
 amounts);

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


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


          10.14
Governing Law; Jurisdiction; Etc. 


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EXECUTION VERSION


                    (a)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (EXCEPT FOR THE CONFLICT OF
LAWS RULES THEREOF, BUT INCLUDING GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND
5-1402).


                    (b)
SUBMISSION TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION (EXCEPT AS PROVIDED IN CLAUSE (e) BELOW) OF THE COURTS OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE LOAN PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THE EXERCISE BY THE CREDIT
PARTIES OF THEIR RIGHTS AND REMEDIES WITH RESPECT TO THE COLLATERAL AGAINST ANY
LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


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


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


                    (e)
ACTIONS COMMENCED BY LOAN PARTIES. EACH LOAN PARTY AGREES THAT ANY
ACTION COMMENCED BY ANY LOAN PARTY ASSERTING ANY CLAIM OR COUNTERCLAIM ARISING
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE
BROUGHT SOLELY IN A COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE EXCLUSIVE JURISDICTION
OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.


          10.15
Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT 


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EXECUTION VERSION


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


          10.16
No Advisory or Fiduciary Responsibility. In connection
with all aspects of each transaction contemplated hereby, the Loan Parties each
acknowledge and agree that: (i) the credit facility provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document) are an
arm’s-length commercial transaction between the Loan Parties, on the one hand,
and the Credit Parties, on the other hand, and each of the Loan Parties is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents (including
any amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, each Credit Party is
and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary, for the Loan Parties or any of their respective Affiliates, stockholders, creditors or employees
or any other Person; (iii) none of the Credit Parties has assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Loan
Parties with respect to any of the transactions contemplated hereby or the
process leading thereto, including with respect to any amendment, waiver or
other modification hereof or of any other Loan Document (irrespective of
whether any of the Credit Parties has advised or is currently advising any Loan
Party or any of its Affiliates
on other matters) and none of the Credit Parties has any obligation to any Loan
Party or any of its Affiliates
with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; (iv) the Credit
Parties and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Loan Parties
and their respective Affiliates,
and none of the Credit Parties has any obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Credit Parties have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and each of the Loan Parties has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate. Each of the Loan Parties hereby waives
and releases, to the fullest extent permitted by law, any claims that it may
have against each of the Credit Parties with respect to any breach or alleged
breach of agency or fiduciary duty.


          10.17
USA PATRIOT Act Notice. Each Lender that is subject
to the Act (as hereinafter defined) and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies the Loan Parties 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 each Loan Party, which
information includes the name and address of each Loan Party and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify each Loan Party in accordance with the Act. Each Loan Party is in
compliance, in all material respects, with the Patriot Act. No part of the
proceeds of the Loans will be used by the Loan Parties, directly or indirectly,
for any payments to any governmental official or employee, political party,
official of a 


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EXECUTION VERSION


political party, candidate for political office, or anyone else acting
in an official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the United States Foreign
Corrupt Practices Act of 1977, as amended.


          10.18
Foreign Asset Control Regulations. Neither of the advance of
the Loans nor the use of the proceeds of any thereof will violate the Trading
With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With
 the Enemy Act”) or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
(the “Foreign Assets Control Regulations”) or any enabling legislation
or executive order relating thereto (which for the avoidance of doubt shall
include, but shall not be limited to (a) Executive Order 13224 of September 21,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the “Executive Order”) and (b) the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Public Law 107-56)). Furthermore, none of the Loan Parties or their Affiliates
(a) is or will become a “blocked person” as described in the Executive Order,
the Trading With the Enemy Act or the Foreign Assets Control Regulations or (b)
engages or will engage in any dealings or transactions, or be otherwise
associated, with any such “blocked person” or in any manner violative of any
such order.


          10.19
Time of the Essence. Time is of the essence of the
Loan Documents.


          10.20
Press Releases.


	
  

 	
  

 
	
  

 	
           (a) Each Credit Party agrees that neither it nor its Affiliates will
 in the future issue any press releases or other public disclosure using the
 name of the Administrative Agent or its Affiliates or referring to this
 Agreement or the other Loan Documents without at least two (2) Business Days’
 prior notice to the Administrative Agent and without the prior written
 consent of the Administrative Agent unless (and only to the extent that) such
 Credit Party or Affiliate is required to do so under applicable Law and then,
 in any event, such Credit Party or Affiliate will consult with the
 Administrative Agent before issuing such press release or other public
 disclosure. 

 
	
  

 	
  

 
	
  

 	
           (b) Each Credit Party agrees that neither it nor its Affiliates will
 in the future issue any press releases or other public disclosure using the
 name of the Borrower or its Subsidiaries without at least two (2) Business
 Days’ prior notice to the Administrative Agent and the Borrower and without
 the prior written consent of the Administrative Agent and the Borrower unless
 (and only to the extent that) such Credit Party or Affiliate is required to
 do so under applicable Law and then, in any event, such Credit Party or
 Affiliate will consult with the Borrower before issuing such press release or
 other public disclosure. Subject to the foregoing, each Loan Party consents
 to the publication by Administrative Agent or any Lender of advertising
 material relating to the financing transactions contemplated by this
 Agreement using any Loan Party’s name, product photographs, logo or trademark
 upon the Borrower’s approval, not to be unreasonably withheld. Administrative
 Agent or such Lender shall provide a draft reasonably in advance of any advertising
 material to the Borrower for review and comment prior to the publication
 thereof. Administrative Agent reserves the right to provide to industry trade
 organizations information necessary and customary for inclusion in league
 table measurements.

 


          10.21
Additional Waivers.


                    (a)
The Obligations are the joint and several obligation of each Loan Party. To the
fullest extent permitted by Applicable Law, the obligations of each Loan Party
shall not be affected by (i) the failure of any Credit Party to assert any
claim or demand or to enforce or exercise any right or 


-125-





EXECUTION VERSION


remedy against any other Loan Party under the provisions of this
Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or
provisions of, this Agreement or any other Loan Document, or (iii) the
failure to perfect any security interest in, or the release of, any of the
Collateral or other security held by or on behalf of the Collateral Agent or
any other Credit Party.


                    (b)
The obligations of each Loan Party shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations after the termination
of the Commitments), including any claim of waiver, release, surrender,
alteration or compromise of any of the Obligations, and shall not be subject to
any defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of any of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Loan Party hereunder shall not be discharged or impaired or
otherwise affected by the failure of any Agent or any other Credit Party to
assert any claim or demand or to enforce any remedy under this Agreement, any
other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, any default, failure or delay, willful or
otherwise, in the performance of any of the Obligations, or by any other act or
omission that may or might in any manner or to any extent vary the risk of any
Loan Party or that would otherwise operate as a discharge of any Loan Party as
a matter of law or equity (other than the indefeasible payment in full in cash
of all the Obligations after the termination of the Commitments). 


                    (c)
To the fullest extent permitted by applicable Law, each Loan Party waives any
defense based on or arising out of any defense of any other Loan Party or the
unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of any other Loan Party, other than
the indefeasible payment in full in cash of all the Obligations and the
termination of the Commitments. The Collateral Agent and the other Credit
Parties may, at their election, foreclose on any security held by one or more
of them by one or more judicial or non-judicial sales, accept an assignment of
any such security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with any other Loan Party, or
exercise any other right or remedy available to them against any other Loan
Party, without affecting or impairing in any way the liability of any Loan
Party hereunder except to the extent that all the Obligations have been
indefeasibly paid in full in cash and the Commitments have been terminated.
Each Loan Party waives any defense arising out of any such election even though
such election operates, pursuant to applicable Law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of such Loan
Party against any other Loan Party, as the case may be, or any security.


                    (d)
Upon payment by any Loan Party of any Obligations, all rights of such Loan
Party against any other Loan Party arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in
all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations and the termination
of the Commitments. In addition, any indebtedness of any Loan Party now or
hereafter held by any other Loan Party is hereby subordinated in right of
payment to the prior indefeasible payment in full of the Obligations and no
Loan Party will demand, sue for or otherwise attempt to collect any such
indebtedness. If any amount shall erroneously be paid to any Loan Party on
account of (i) such subrogation, contribution, reimbursement, indemnity or
similar right or (ii) any such indebtedness of any Loan Party, such amount
shall be held in trust for the benefit of the Credit Parties and shall
forthwith be paid to the Administrative Agent to be credited against the
payment of the Obligations, whether matured or unmatured, in accordance with
the terms of this Agreement and the other Loan Documents. Subject to the
foregoing, to the extent that any Loan Party shall, under this Agreement as a
joint and several obligor, repay any of the Obligations constituting Loans made
to the Borrower hereunder or other Obligations incurred directly and primarily
by the Borrower or any other Loan Party (an “Accommodation Payment”), 


-126-





EXECUTION VERSION


then the Loan Party making such Accommodation Payment shall be entitled
to contribution and indemnification from, and be reimbursed by, each of the
other Loan Parties in an amount, for each of such other Loan Parties, equal to
a fraction of such Accommodation Payment, the numerator of which fraction is
such other Loan Party’s Allocable Amount and the denominator of which is the
sum of the Allocable Amounts of all of the Loan Parties. As of any date of
determination, the “Allocable Amount” of each Loan Party shall be equal
to the maximum amount of liability for Accommodation Payments which could be
asserted against such Loan Party hereunder without (a) rendering such Loan
Party “insolvent” within the meaning of Section 101 (31) of the Bankruptcy
Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or
Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”),
(b) leaving such Loan Party with unreasonably small capital or assets, within
the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or
Section 5 of the UFCA, or (c) leaving such Loan Party unable to pay its
debts as they become due within the meaning of Section 548 of the Bankruptcy
Code or Section 4 of the UFTA, or Section 5 of the UFCA.


          10.22
No Strict Construction.


          The parties
hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.


          10.23
Attachments.


          The
exhibits, schedules and annexes attached to this Agreement are incorporated
herein and shall be considered a part of this Agreement for the purposes stated
herein, except that in the event of any conflict between any of the provisions
of such exhibits and the provisions of this Agreement, the provisions of this
Agreement shall prevail.


 [signature pages follow]


-127-







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


	
  

 	
  

 	
  

 
	
  

 	
 BORROWER:

 
	
  

 	
  

 	
  

 
	
  

 	
 FOOT LOCKER,
 INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ John A.
 Maurer

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
 John A.
 Maurer

 
	
  

 	
 Title:

 	
 Vice
 President and Treasurer

 
	
  

 	
  

 	
  

 
	
  

 	
 GUARANTORS:

 
	
  

 	
  

 	
  

 
	
  

 	
 FOOT LOCKER
 RETAIL, INC.

 
	
  

 	
 TEAM EDITION
 APPAREL, INC.

 
	
  

 	
 FOOT LOCKER
 STORES, INC.

 
	
  

 	
 FOOT LOCKER
 SPECIALTY, INC.

 
	
  

 	
 ROBBY’S
 SPORTING GOODS, INC.

 
	
  

 	
 FOOT LOCKER
 CORPORATE SERVICES, INC.

 
	
  

 	
 FOOT LOCKER
 HOLDINGS, INC.

 
	
  

 	
 FOOT LOCKER
 SOURCING, INC.

 
	
  

 	
 FOOT LOCKER
 OPERATIONS, LLC

 
	
  

 	
 FL RETAIL
 OPERATIONS LLC

 
	
  

 	
 FL SPECIALTY
 OPERATIONS LLC

 
	
  

 	
 FL EUROPE
 HOLDINGS, INC.

 
	
  

 	
 FL CANADA
 HOLDINGS, INC.

 
	
  

 	
 FOOT LOCKER
 ASIA, INC.

 
	
  

 	
 FL CORPORATE
 NY, LLC

 
	
  

 	
 FL RETAIL
 NY, LLC

 
	
  

 	
 FL SPECIALTY
 NY, LLC

 
	
  

 	
 FOOT LOCKER
 CARD SERVICES LLC

 
	
  

 	
 as to each
 of the foregoing

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ John A.
 Maurer

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 John A.
 Maurer

 
	
  

 	
 Title:

 	
 Vice
 President and Treasurer

 


Signature Page to Credit Agreement









	
  

 	
  

 	
  

 
	
  

 	
 BANK OF AMERICA, N.A., as

 
	
  

 	
 Administrative
 Agent and as Collateral Agent

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/
 Christine Hutchinson

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Christine
 Hutchinson

 
	
  

 	
 Title:

 	
 Director

 


Signature Page to Credit Agreement









	
  

 	
  

 	
  

 
	
  

 	
 BANK OF AMERICA, N.A., as L/C Issuer, as

 
	
  

 	
 Swing Line
 Lender and as a Lender

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/
 Christine Hutchinson

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Christine
 Hutchinson

 
	
  

 	
 Title:

 	
 Director

 


Signature Page to Credit Agreement









	
  

 	
  

 	
  

 
	
  

 	
 JPMORGAN CHASE BANK, N.A., as a

 
	
  

 	
 Lender

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Bonnie
 J. David

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Bonnie J.
 David

 
	
  

 	
  

 	

  


 
	
  

 	
 Title:

 	
 Senior Underwriter

 
	
  

 	
  

 	

  


 


Signature Page to Credit Agreement









	
  

 	
  

 	
  

 
	
  

 	
 WELLS FARGO CAPITAL FINANCE,

 
	
  

 	
 LLC, as Co-Syndication Agent

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Wai Yin
 Cheng

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Wai Yin
 Cheng

 
	
  

 	
  

 	

  


 
	
  

 	
 Title:

 	
 Vice
 President

 
	
  

 	
  

 	

  


 
	
  

 	
  

 	
  

 
	
  

 	
 WELLS FARGO BANK, NATIONAL

 
	
  

 	
 ASSOCIATION, as a Lender

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Wai Yin
 Cheng

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Wai Yin
 Cheng

 
	
  

 	
  

 	

  


 
	
  

 	
 Title:

 	
 Vice
 President

 
	
  

 	
  

 	

  



 


Signature Page to Credit Agreement









	
  

 	
  

 	
  

 
	
  

 	
 U.S. BANK NATIONAL ASSOCIATION, as

 
	
  

 	
 Documentation
 Agent and as a Lender

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Lynn
 Gosselin

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Lynn
 Gosselin

 
	
  

 	
 Title:

 	
 Vice
 President

 


Signature Page to Credit Agreement









	
  

 	
  

 	
  

 
	
  

 	
 CAPITAL ONE LEVERAGE FINANCE

 
	
  

 	
 CORPORATION, as a Lender

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Julianne
 Low

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Julianne Low

 
	
  

 	
  

 	

  


 
	
  

 	
 Title:

 	
 Vice
 President

 
	
  

 	
  

 	

  


 


Signature Page to Credit Agreement









	
  

 	
  

 	
  

 
	
  

 	
 HSBC BANK USA, N.A. as a Lender

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Brian
 Gingue

 
	
  

 	
  

 	

  


 
	
  

 	
 Name:

 	
 Brian Gingue

 
	
  

 	
  

 	

  


 
	
  

 	
 Title:

 	
 Vice
 President

 
	
  

 	
  

 	

  


 


Signature Page to Credit Agreement










	
  

 
	
 Schedule 1.01

 
	
  

 
	
 Guarantors

 
	
  

 
	
 Foot Locker
 Stores, Inc.

 
	
 Robby’s
 Sporting Goods, Inc.

 
	
 Team Edition
 Apparel, Inc.

 
	
 Foot Locker
 Corporate Services, Inc.

 
	
 Foot Locker
 Holdings, Inc.

 
	
 Foot Locker
 Retail, Inc.

 
	
 FL Retail
 Operations LLC

 
	
 FL Specialty
 Operations LLC

 
	
 Foot Locker
 Sourcing, Inc.

 
	
 Foot Locker
 Specialty, Inc.

 
	
 FL Europe
 Holdings, Inc.

 
	
 Foot Locker
 Operations, LLC

 
	
 FL Canada
 Holdings, Inc.

 
	
 Foot Locker
 Asia, Inc.

 
	
 FL Corporate
 NY, LLC

 
	
 FL Retail
 NY, LLC

 
	
 FL Specialty
 NY, LLC

 
	
 Foot Locker
 Card Services LLC

 










Schedule 1.02


Immaterial Subsidiaries


	
  

 	
  

 	
  

 	
  

 
	
 Name

 	
  

 	
 State or Other

 Jurisdiction of Incorporation

 
	

 


 	
  

 	

 


 
	
 Foot Locker China, Inc.

 	
  

 	
 Delaware

 
	
 FLE Management B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Europe.com
 B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Japan, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker Retail New
 York, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker Specialty New
 York, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker (Thailand)
 Co., Ltd.

 	
  

 	
 Thailand

 
	
 Kids Mart, Inc.

 	
  

 	
 Florida

 
	
 Kids Mart, Inc.

 	
  

 	
 Delaware

 
	
 Little Folk Shop Inc.

 	
  

 	
 Delaware

 
	
 Randy River, Inc.

 	
  

 	
 Delaware

 
	
 Custom Cut, Inc.

 	
  

 	
 Delaware

 
	
 RX Place, Inc.

 	
  

 	
 Delaware

 
	
 Specialty Times, Inc.

 	
  

 	
 Delaware

 
	
 Venator Group
 Administration, Inc.

 	
  

 	
 Delaware

 
	
 AB Specialty, Inc.

 	
  

 	
 Delaware

 
	
 Barclay Park and Church
 Advertising Inc.

 	
  

 	
 Delaware

 
	
 Checklot Service Center,
 Inc.

 	
  

 	
 Delaware

 
	
 Frame Scene, Inc.

 	
  

 	
 Delaware

 
	
 Herald Square Stationers,
 Inc.

 	
  

 	
 Delaware

 
	
 Lamston 37-33/45
 Seventy-Fourth Street Corp.

 	
  

 	
 New York

 
	
 Lamston 69-73/5 Grand
 Avenue Corp.

 	
  

 	
 New York

 
	
 Lamston 1279 Third Avenue
 Corp.

 	
  

 	
 New York

 
	
 Red Grille of Hawaii, Inc.

 	
  

 	
 Delaware

 
	
 Red Grille of Louisiana,
 Inc.

 	
  

 	
 Delaware

 
	
 Trade Center Realty, Inc.

 	
  

 	
 Delaware

 
	
 Woolco Fashionwear Corp.

 	
  

 	
 Delaware

 
	
 Woolco Inc.

 	
  

 	
 Delaware

 
	
 233 Broadway, Inc.

 	
  

 	
 New York

 
	
 340 Supply Co.

 	
  

 	
 Pennsylvania

 
	
 Venator Group Franchises
 LLC

 	
  

 	
 Delaware

 
	
 Rosedale Accessory Lady,
 Inc.

 	
  

 	
 Minnesota

 
	
 Accessory Lady, Inc.

 	
  

 	
 Texas

 
	
 Atlanta Southlake
 Accessory Lady, Inc.

 	
  

 	
 Georgia

 
	
 Beachwood Accessory Lady,
 Inc.

 	
  

 	
 Ohio

 
	
 Brea Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Bridgewater Commons
 Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Buckland Hills Accessory
 Lady, Inc.

 	
  

 	
 Connecticut

 
	
 Cherry Hill Accessory
 Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Chesterfield Accessory
 Lady, Inc.

 	
  

 	
 Virginia

 
	
 Chicago Accessory Lady,
 Inc.

 	
  

 	
 Illinois

 
	
 Copley Place Accessory
 Lady, Inc.

 	
  

 	
 Massachusetts

 













	
  

 	
  

 	
  

 	
  

 
	
 Name

 	
  

 	
 State or Other

 Jurisdiction of Incorporation

 
	

 


 	
  

 	

 


 
	
 Colonie Center Accessory
 Lady, Inc.

 	
  

 	
 New York

 
	
 Crabtree Mall Accessory
 Lady, Inc.

 	
  

 	
 North Carolina

 
	
 Dadeland Center Accessory
 Lady, Inc.

 	
  

 	
 Florida

 
	
 Delamo Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Fashion Valley Accessory
 Lady, Inc.

 	
  

 	
 California

 
	
 Four Seasons Accessory
 Lady, Inc.

 	
  

 	
 North Carolina

 
	
 Fox Valley Accessory Lady,
 Inc.

 	
  

 	
 Illinois

 
	
 Garden State Accessory
 Lady, Inc.

 	
  

 	
 New Jersey

 
	
 The Gardens Accessory
 Lady, Inc.

 	
  

 	
 Florida

 
	
 Glendale Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Grand Avenue Accessory
 Lady, Inc.

 	
  

 	
 Wisconsin

 
	
 Hanes Mall Accessory Lady,
 Inc.

 	
  

 	
 North Carolina

 
	
 Hawthorne Center (IL.)
 Accessory Lady, Inc.

 	
  

 	
 Illinois

 
	
 Lakeside Accessory Lady,
 Inc.

 	
  

 	
 Louisiana

 
	
 Mainplace Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Mall Del Norte Accessory
 Lady, Inc.

 	
  

 	
 Texas

 
	
 McAllen Accessory Lady,
 Inc.

 	
  

 	
 Texas

 
	
 Penn Square Accessory
 Lady, Inc.

 	
  

 	
 Oklahoma

 
	
 Pentagon City Accessory
 Lady, Inc.

 	
  

 	
 Virginia

 
	
 Raceway Accessory Lady,
 Inc.

 	
  

 	
 New Jersey

 
	
 Randhurst Accessory Lady,
 Inc.

 	
  

 	
 Illinois

 
	
 Regency Square Accessory
 Lady, Inc.

 	
  

 	
 Florida

 
	
 Ridgedale Accessory Lady,
 Inc.

 	
  

 	
 Minnesota

 
	
 McLean Accessory Lady,
 Inc.

 	
  

 	
 Virginia

 
	
 Menlo Park Accessory Lady,
 Inc.

 	
  

 	
 New Jersey

 
	
 Montclair Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Montgomery Accessory Lady,
 Inc.

 	
  

 	
 Maryland

 
	
 Northbrook Accessory Lady,
 Inc.

 	
  

 	
 Illinois

 
	
 North County Fair
 Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Northridge Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Oakbrook Center Accessory
 Lady, Inc.

 	
  

 	
 Illinois

 
	
 The Oaks Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Orlando Accessory Lady,
 Inc.

 	
  

 	
 Florida

 
	
 Paradise Valley Accessory
 Lady, Inc.

 	
  

 	
 Arizona

 
	
 Palm Beach Mall Accessory
 Lady, Inc.

 	
  

 	
 Florida

 
	
 Paramus Park Accessory
 Lady, Inc.

 	
  

 	
 New Jersey

 
	
 The Parks Accessory Lady,
 Inc.

 	
  

 	
 Texas

 
	
 Riverside Hackensack
 Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Roosevelt Field Accessory
 Lady, Inc.

 	
  

 	
 New York

 
	
 Scottsdale Accessory Lady,
 Inc.

 	
  

 	
 Arizona

 
	
 Southdale Accessory Lady,
 Inc.

 	
  

 	
 Minnesota

 
	
 St. Louis Galleria
 Accessory Lady, Inc.

 	
  

 	
 Missouri

 
	
 Stoneridge Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Stonestown Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Sunrise Boulevard (Fla.)
 Accessory Lady, Inc.

 	
  

 	
 Florida

 
	
 Sunvalley Accessory Lady,
 Inc.

 	
  

 	
 California

 
	
 Towson Accessory Lady,
 Inc.

 	
  

 	
 Maryland

 
	
 Tri-County Accessory Lady,
 Inc.

 	
  

 	
 Ohio

 
	
 Tysons Corner Accessory
 Lady, Inc.

 	
  

 	
 Virginia

 













	
  

 	
  

 	
  

 	
  

 
	
 Name

 	
  

 	
 State or Other

 Jurisdiction of Incorporation

 
	

 


 	
  

 	

 


 
	
 Valley Fair Accessory
 Lady, Inc.

 	
  

 	
 California

 
	
 Willowbrook Accessory
 Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Woodman Avenue Accessory
 Lady, Inc.

 	
  

 	
 California

 
	
 Armel, Inc.

 	
  

 	
 Florida

 
	
 Armel Acquisition, Inc.

 	
  

 	
 Florida

 
	
 Champs of Crossgates, Inc.

 	
  

 	
 Florida

 
	
 Champs of Holyoke, Inc.

 	
  

 	
 Florida

 
	
 Champs Sporting Goods of
 Esplanade, Inc.

 	
  

 	
 Florida

 
	
 Champs Sporting Goods,
 Inc.

 	
  

 	
 Tennessee

 
	
 Champs Sport Shops, Inc.
 of Maryville

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.
 of Cutler Ridge

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.
 of Broward

 	
  

 	
 Florida

 
	
 Champs Sport Shops of
 Daytona, Inc.

 	
  

 	
 Florida

 
	
 San Del of Jacksonville,
 Inc.

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.
 of 163rd Street

 	
  

 	
 Florida

 
	
 San Del, Inc. of Atlanta

 	
  

 	
 Florida

 
	
 Champs Four Seasons, Inc.

 	
  

 	
 North Carolina

 
	
 Joe Chichelo, Inc.

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.
 of Aventura

 	
  

 	
 Florida

 
	
 Champs Sporting Goods of
 N.C., Inc.

 	
  

 	
 North Carolina

 
	
 Champs Sport Shops, Inc.
 of Miami International

 	
  

 	
 Florida

 
	
 Champs Sporting Goods,
 Inc.

 	
  

 	
 Louisiana

 
	
 Champs Sport Shops, Inc.
 of Omni

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.
 of Nashville

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.
 of Houston

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.
 of Fort Lauderdale

 	
  

 	
 Florida

 
	
 Sneakers Inc. of
 Greensboro

 	
  

 	
 North Carolina

 
	
 Sneakers Inc. of Knoxville

 	
  

 	
 Tennessee

 
	
 Sneakers Inc. of Daytona
 Beach

 	
  

 	
 Florida

 
	
 Champs of Maryland, Inc.

 	
  

 	
 Florida

 
	
 Champs of Virginia, Inc.

 	
  

 	
 Florida

 
	
 SneaKee Feet of Maryland,
 Inc.

 	
  

 	
 Florida

 
	
 SneaKee Feet of Montgomery
 Village, Inc.

 	
  

 	
 Florida

 
	
 SneaKee Feet of North
 Carolina, Inc.

 	
  

 	
 Florida

 
	
 Runner-Up of Orlando, Inc.

 	
  

 	
 Florida

 
	
 SneaKee Feet of Tampa,
 Inc.

 	
  

 	
 Florida

 
	
 SneaKee Feet, Inc.

 	
  

 	
 Florida

 
	
 Champs of Missouri, Inc.

 	
  

 	
 Missouri

 
	
 Champs Sport Shops of
 Maryland, Inc.

 	
  

 	
 Maryland

 
	
 Champs of Connecticut,
 Inc.

 	
  

 	
 Connecticut

 
	
 Champs Sport Shops of
 Massachusetts, Inc.

 	
  

 	
 Massachusetts

 
	
 Champs of Georgia, Inc.

 	
  

 	
 Georgia

 
	
 Champs of New Jersey, Inc.

 	
  

 	
 New Jersey

 
	
 Champs of Oklahoma, Inc.

 	
  

 	
 Oklahoma

 
	
 Champs of Tennessee, Inc.

 	
  

 	
 Tennessee

 
	
 SneaKee Feet of Washington
 Outlet Mall, Inc.

 	
  

 	
 Florida

 
	
 Foot Locker Atlantic City,
 LLC

 	
  

 	
 Delaware

 
	
 Menlo Trading Company

 	
  

 	
 California

 













	
  

 	
  

 	
  

 	
  

 
	
 Name

 	
  

 	
 State or Other

 Jurisdiction of Incorporation

 
	

 


 	
  

 	

 


 
	
 Athletic Shoe Factory,
 Inc.

 	
  

 	
 California

 
	
 Janess Properties, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker Investments
 LLC

 	
  

 	
 Delaware

 
	
 Kinney Trading Corp.

 	
  

 	
 New York

 
	
 SFMB Specialty Corporation

 	
  

 	
 California

 
	
 Foot Locker Realty
 Corporation

 	
  

 	
 New York

 
	
 Foot Locker Pacific
 Holdings, Inc.

 	
  

 	
 Delaware

 
	
 Woolworth Holding S. de
 R.L. de C.V.

 	
  

 	
 Mexico

 
	
 Foot Locker de Mexico,
 S.A. de C.V.

 	
  

 	
 Mexico

 
	
 Distribuidora Foot Locker
 S.A. de C.V.

 	
  

 	
 Mexico

 
	
 3093459 Nova Scotia
 Limited

 	
  

 	
 Nova Scotia

 
	
 Foot Locker Europe CV LP,
 LLC

 	
  

 	
 Delaware

 
	
 FLE CV GP, LLC

 	
  

 	
 Delaware

 
	
 Venator Group Sourcing
 Taiwan LLC

 	
  

 	
 Delaware

 
	
 FL Corporate NY LLC

 	
  

 	
 New York

 
	
 Foot Locker Germany
 Management GmbH

 	
  

 	
 Germany

 
	
 Foot Locker (Shoes) Ltd.

 	
  

 	
 Ireland

 
	
 Foot Locker Istanbul
 Sports Wear Industry and Commerce LLP

 	
  

 	
 Turkey

 
	
 Foot Locker Dominican
 Republic, LLC

 	
  

 	
 Delaware

 
	
 Foot Locker Germany
 Administration GmbH

 	
  

 	
 Germany

 
	
 FL ETVE LLC

 	
  

 	
 Delaware

 











Schedule 2.01


Commitments and Applicable Percentages


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Lender

 	
  

 	
 Commitment

 	
  

 	
 Applicable Percentage

 	
  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 
	
 Bank of America, N.A.

 	
  

 	
 $

 	
 40,000,000.00

 	
  

 	
  

 	
 20.0000

 	
 %

 
	
 JPMorgan Chase Bank, N.A.

 	
  

 	
 $

 	
 40,000,000.00

 	
  

 	
  

 	
 20.0000

 	
 %

 
	
 Wells Fargo Bank, National Association

 	
  

 	
 $

 	
 37,500,000.00

 	
  

 	
  

 	
 18.7500

 	
 %

 
	
 U.S. Bank National Association

 	
  

 	
 $

 	
 35,000,000.00

 	
  

 	
  

 	
 17.5000

 	
 %

 
	
 HSBC Bank USA, N.A.

 	
  

 	
 $

 	
 25,000,000.00

 	
  

 	
  

 	
 12.5000

 	
 %

 
	
 Capital One Leverage Finance Corp.

 	
  

 	
 $

 	
 22,500,000.00

 	
  

 	
  

 	
 11.2500

 	
 %

 
	

  


 	
  

 	

 


 	
  

 	

 


 	
  

 
	
 TOTAL

 	
  

 	
 $

 	
 200,000,000.00

 	
  

 	
  

 	
 100.0000

 	
 %

 









Schedule 4.01


Security Documents and other Loan Documents


	
  

 	
  

 
	
 Security
 Documents

 
	
  

 	
  

 
	
 1)

 	
 Amended and
 Restated Security Agreement by and among the Collateral Agent and the Loan
 Parties (as Pledgors thereunder), together with all schedules and exhibits
 annexed thereto

 
	
  

 	
  

 
	
 Other Loan
 Documents

 
	
  

 	
  

 
	
 1)

 	
 Due
 Diligence Certificate (as defined in the Amended and Restated Security
 Agreement), together with all schedules annexed thereto

 
	
  

 	
  

 
	
 2)

 	
 That certain
 Post-Closing Letter by and among the Administrative Agent and the Loan
 Parties, together with all exhibits annexed thereto

 
	
  

 	
  

 
	
 3)

 	
 Confirmation,
 Ratification and Amendment of Ancillary Loan Documents, by and among the Loan
 Parties, the Administrative Agent and the Collateral Agent.

 









Schedule 5.01


Loan Parties Organizational Information


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Name

 	
  

 	
 Type of 

 Organization

 	
  

 	
 Jurisdiction of

 Organization/

 Formation

 	
  

 	
 Organizational

 Identification 

 Number

 	
  

 	
 Federal 

 Taxpayer 

 Identification 

 Number

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Foot Locker, Inc.

 	
  

 	
 corporation

 	
  

 	
 New
 York

 	
  

 	
 not
 issued

 	
  

 	
 13-3513936

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Stores, Inc.

 	
  

 	
 corporation

 	
  

 	
 Delaware

 	
  

 	
 2203435

 	
  

 	
 13-3533483

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Robby’s Sporting Goods,
 Inc.

 	
  

 	
 corporation

 	
  

 	
 Florida

 	
  

 	
 492970

 	
  

 	
 59-1641036

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Team Edition Apparel, Inc.

 	
  

 	
 corporation

 	
  

 	
 Florida

 	
  

 	
 324141

 	
  

 	
 59-1202727

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Corporate
 Services, Inc.

 	
  

 	
 corporation

 	
  

 	
 Delaware

 	
  

 	
 0861249

 	
  

 	
 22-2223346

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Holdings, Inc.

 	
  

 	
 corporation

 	
  

 	
 New
 York

 	
  

 	
 not
 issued

 	
  

 	
 13-2630755

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Retail, Inc.

 	
  

 	
 corporation

 	
  

 	
 New
 York

 	
  

 	
 not
 issued

 	
  

 	
 13-1988404

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FL Retail Operations LLC

 	
  

 	
 limited
 liability company

 	
  

 	
 New
 York

 	
  

 	
 not
 issued

 	
  

 	
 20-0991785

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FL Specialty Operations
 LLC

 	
  

 	
 limited
 liability company

 	
  

 	
 New
 York

 	
  

 	
 not
 issued

 	
  

 	
 20-0991731

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Sourcing, Inc.

 	
  

 	
 corporation

 	
  

 	
 Delaware

 	
  

 	
 0837376

 	
  

 	
 13-2936366

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Specialty,
 Inc.

 	
  

 	
 corporation

 	
  

 	
 New
 York

 	
  

 	
 not
 issued

 	
  

 	
 13-5493340

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FL Europe Holdings, Inc.

 	
  

 	
 corporation

 	
  

 	
 Delaware

 	
  

 	
 3587453

 	
  

 	
 57-1161169

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Operations,
 LLC

 	
  

 	
 limited
 liability company

 	
  

 	
 Delaware

 	
  

 	
 3365517

 	
  

 	
 81-0584311

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FL Canada Holdings, Inc.

 	
  

 	
 corporation

 	
  

 	
 Delaware

 	
  

 	
 3469381

 	
  

 	
 16-1625677

 













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Name

 	
  

 	
 Type of 

 Organization

 	
  

 	
 Jurisdiction of

 Organization/

 Formation

 	
  

 	
 Organizational

 Identification 

 Number

 	
  

 	
 Federal 

 Taxpayer 

 Identification 

 Number

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Asia, Inc.

 	
  

 	
 corporation

 	
  

 	
 Delaware

 	
  

 	
 2354272

 	
  

 	
 13-3741700

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FL Corporate NY, LLC

 	
  

 	
 limited
 liability company

 	
  

 	
 Delaware

 	
  

 	
 3702777

 	
  

 	
 20-0214890

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FL Retail NY, LLC

 	
  

 	
 limited
 liability company

 	
  

 	
 Delaware

 	
  

 	
 3702776

 	
  

 	
 20-0214844

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FL Specialty NY, LLC

 	
  

 	
 limited
 liability company

 	
  

 	
 Delaware

 	
  

 	
 3702775

 	
  

 	
 20-0214872

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Foot Locker Card Services
 LLC

 	
  

 	
 limited
 liability company

 	
  

 	
 Virginia

 	
  

 	
 S131151-5

 	
  

 	
 20-2247388

 









Schedule 5.05


Material Indebtedness


BONDS


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Bonds Outstanding

 	
  

 	
 Custodian Bank

 	
  

 	
 Pay

 	
  

 	
 Maturity

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 119,597,000

 	
  

 	
 Bank of New
 York

 	
  

 	
 8.50%

 	
  

 	
 1/15/2022

 









Schedule 5.06


Litigation


None.





Schedule 5.09


Litigation
None.







SCHEDULE 5.13


Subsidiaries


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Name 

 	
  1 

 	
  

 	
 Jurisdiction of Incorporation

 
	

 


 	
  

 	
  

 	

 


 
	
 Foot Locker, Inc.

 	
  

 	
  

 	
 New York

 
	
 Footlocker.com, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Eastbay, Inc.

 	
  

 	
  

 	
 Wisconsin

 
	
 FL Corporate NY, LLC

 	
  

 	
  

 	
 Delaware

 
	
 Foot Locker Australia, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Foot Locker New Zealand, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 The Richman Brothers Company

 	
  

 	
  

 	
 Ohio

 
	
 Custom Cut, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 RX Place, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Specialty Times, Inc.

 	
  

 	
  

 	
 Delaware 

 
	
 Team Edition Apparel, Inc.

 	
  

 	
  

 	
 Florida

 
	
 Venator Group Administration, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Foot Locker Germany Holdings GmbH

 	
  

 	
  

 	
 Germany

 
	
 Foot Locker Germany GmbH & Co. KG

 	
  

 	
  

 	
 Germany

 
	
 Foot Locker Germany Management GmbH

 	
  

 	
  

 	
 Germany

 
	
 Foot Locker Germany Administration GmbH

 	
  

 	
  

 	
 Germany

 
	
 Foot Locker Holdings, Inc.

 	
  

 	
  

 	
 New York

 
	
 Retail Company of Germany, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Foot Locker Canada Holdings LP 2 3

 	
  

 	
  

 	
 Canada

 
	
 FL Canada Holdings ULC

 	
  

 	
  

 	
 Canada

 
	
 Foot
 Locker Canada Co.

 	
  

 	
  

 	
 Canada

 
	
 3093459 Nova Scotia Limited

 	
  

 	
  

 	
 Canada

 
	
 FL Canada Holdings, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Foot Locker Pacific Holdings, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Woolworth Holding S. de R.L. de C.V. 4

 	
  

 	
  

 	
 Mexico

 
	
 Foot Locker de Mexico, S.A. de C.V. 5

 	
  

 	
  

 	
 Mexico

 
	
 Distribuidora Foot Locker S.A. de C.V. 6

 	
  

 	
  

 	
 Mexico

 
	
 Foot Locker Sourcing, Inc.

 	
  

 	
  

 	
 Delaware

 
	
 Venator Group Sourcing Taiwan LLC

 	
  

 	
  

 	
 Delaware

 





 1 The name of
 each subsidiary company is indented under the name of its parent company and,
 unless noted in a footnote, each such subsidiary is 100% owned by its parent.
 All subsidiaries wholly owned, directly or indirectly, by Foot Locker, Inc.
 are consolidated for accounting and financial reporting purposes.


2 General
 Partner is Foot Locker Holdings, Inc.; Limited Partner is FL Canada Holdings,
 Inc. 


 3 Owner of 17
 shares of FL Finance Europe (US) Limited.


 4 Liquidation
 and dissolution pending.


 5 Liquidation
 and dissolution pending.



 6 Liquidation
 and dissolution pending.



14









	
  

 	
  

 	
  

 
	
  [Foot
 Locker, Inc. — (Cont.)]

 	
  

 	
  

 
	
 FLE CV Management, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker ETVE, Inc.

 	
  

 	
 Delaware 

 
	
 Foot Locker Spain C.V.

 	
  

 	
 Netherlands7

 
	
 FL ETVE LLC

 	
  

 	
 Delaware

 
	
 Foot Locker Europe Holdings, S.L.

 	
  

 	
 Spain

 
	
 FLE
 CV GP, LLC

 	
  

 	
 Delaware

 
	
 Foot
 Locker Europe CV LP, LLC

 	
  

 	
 Delaware

 
	
 FLE C.V. 8

 	
  

 	
 Netherlands

 
	
 FL Finance (Europe) Limited

 	
  

 	
 Ireland

 
	
 Foot Locker Retail Ireland Limited

 	
  

 	
 Ireland

 
	
 Foot Locker (Shoes) Ltd.

 	
  

 	
 Ireland

 
	
 FL Finance Europe (US) Limited

 	
  

 	
 Ireland

 
	
 FLE Franchising Limited

 	
  

 	
 Ireland

 
	
 FLE Holdings BV

 	
  

 	
 Netherlands

 
	
 FLE Logistics B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Europe B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Denmark B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Poland Spólka z ograniczonq odpowiedzialnościq 9

 	
  

 	
 Poland

 
	
 Foot Locker Greece Athletic Goods Ltd.

 	
  

 	
 Greece

 
	
 FL France Holdings S.A.S.

 	
  

 	
 France

 
	
 Foot Locker France S.A.S.

 	
  

 	
 France

 
	
 Foot Locker Austria GmbH

 	
  

 	
 Austria

 
	
 Foot Locker Belgium B.V.B.A.

 	
  

 	
 Belgium

 
	
 Foot Locker Czech Republic s.r.o.

 	
  

 	
 Czech Republic

 
	
 Foot Locker Denmark ApS

 	
  

 	
 Denmark

 
	
 Foot Locker - Artigos Desportivos e de Tempos Livres Lda.

 	
  

 	
 Portugal

 
	
 Foot Locker Europe.com B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Scandinavia B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Suisse SA

 	
  

 	
 Switzerland

 
	
 Foot Locker Hungary Kft

 	
  

 	
 Hungary

 
	
 FLE Management B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Istanbul Sport Giyim Sanayi ve Ticaret LS

 	
  

 	
 Turkey

 
	
 Foot Locker U.K. Limited

 	
  

 	
 U.K.

 
	
 Freedom Sportsline Limited

 	
  

 	
 U.K.

 
	
 Foot Locker Italy S.r.l.

 	
  

 	
 Italy

 
	
 Foot Locker Netherlands B.V.

 	
  

 	
 Netherlands

 
	
 Foot Locker Sweden AB

 	
  

 	
 Sweden

 
	
 Foot Locker Spain S.L.

 	
  

 	
 Spain

 




 7 Dutch
 limited partnership. General partner is Foot Locker ETVE, Inc. (99.9%);
 limited partner is FL ETVE LLC (0.10%). 


 8 Dutch
 limited partnership. General partners are Foot Locker Europe Holdings SL
 (99.506%) and FLE CV GP, LLC (0.247%). Limited partner is Foot Locker Europe
 CV LP, LLC (0.247%).


 9 Foot Locker
 Netherlands B.V. is also a member of this limited liability company.


15









	
  

 	
  

 	
  

 
	
  [Foot
 Locker, Inc. — (Cont.)]

 	
  

 	
  

 
	
 Foot Locker Specialty, Inc.

 	
  

 	
 New York

 
	
 CCS Direct LLC

 	
  

 	
 Wisconsin

 
	
 AB Specialty, Inc.

 	
  

 	
 Delaware

 
	
 Barclay Park and Church Advertising Inc.

 	
  

 	
 Delaware

 
	
 Checklot Service Center, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker Operations LLC

 	
  

 	
 Delaware

 
	
 FL Specialty NY, LLC

 	
  

 	
 Delaware

 
	
 FL Specialty Operations LLC

 	
  

 	
 New York

 
	
 Foot Locker Specialty New York, Inc.

 	
  

 	
 Delaware

 
	
 Frame Scene, Inc.

 	
  

 	
 Delaware

 
	
 Herald Square Stationers, Inc.

 	
  

 	
 Delaware

 
	
 Lamston 37-33/45 Seventy-Fourth Street Corp.

 	
  

 	
 New York

 
	
 Lamston 69-73/5 Grand Avenue Corp.

 	
  

 	
 New York

 
	
 Lamston 1279 Third Avenue Corp.

 	
  

 	
 New York

 
	
 Red Grille of Hawaii, Inc.

 	
  

 	
 Delaware

 
	
 Red Grille of Louisiana, Inc.

 	
  

 	
 Delaware

 
	
 Trade Center Realty, Inc.

 	
  

 	
 Delaware

 
	
 Woolco Fashionwear Corp.

 	
  

 	
 Delaware

 
	
 Woolco Inc.

 	
  

 	
 Delaware

 
	
 233 Broadway, Inc.

 	
  

 	
 New York 

 
	
 340 Supply Co.

 	
  

 	
 Pennsylvania

 
	
 Venator Group Franchises LLC

 	
  

 	
 Delaware

 
	
 Rosedale Accessory Lady, Inc.

 	
  

 	
 Minnesota

 
	
 Accessory Lady, Inc.

 	
  

 	
 Texas

 
	
 Atlanta Southlake Accessory Lady, Inc.

 	
  

 	
 Georgia

 
	
 Beachwood Accessory Lady, Inc.

 	
  

 	
 Ohio 

 
	
 Brea Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Bridgewater Commons Accessory Lady, Inc.

 	
  

 	
 New Jersey 

 
	
 Buckland Hills Accessory Lady, Inc.

 	
  

 	
 Connecticut

 
	
 Cherry Hill Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Chesterfield Accessory Lady, Inc.

 	
  

 	
 Virginia

 
	
 Chicago Accessory Lady, Inc.

 	
  

 	
 Illinois

 
	
 Copley Place Accessory Lady, Inc.

 	
  

 	
 Massachusetts

 
	
 Colonie Center Accessory Lady, Inc.

 	
  

 	
 New York

 
	
 Crabtree Mall Accessory Lady, Inc.

 	
  

 	
 North Carolina

 
	
 Dadeland Center Accessory Lady, Inc.

 	
  

 	
 Florida

 
	
 Delamo Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Fashion Valley Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Four Seasons Accessory Lady, Inc.

 	
  

 	
 North Carolina

 
	
 Fox Valley Accessory Lady, Inc.

 	
  

 	
 Illinois

 
	
 Garden State Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 The Gardens Accessory Lady, Inc.

 	
  

 	
 Florida

 
	
 Glendale Accessory Lady, Inc.

 	
  

 	
 California

 


16









	
  

 	
  

 	
  

 
	
  [Foot
 Locker, Inc. — (Cont.)]

 	
  

 	
  

 
	
  [Foot Locker Specialty, Inc. — (Cont.)]

 	
  

 	
  

 
	
  [Rosedale Accessory Lady, Inc. — (Cont.)]

 	
  

 	
  

 
	
 Grand
 Avenue Accessory Lady, Inc.

 	
  

 	
 Wisconsin

 
	
 Hanes
 Mall Accessory Lady, Inc.

 	
  

 	
 North Carolina

 
	
 Hawthorne
 Center (IL.) Accessory Lady, Inc.

 	
  

 	
 Illinois

 
	
 Lakeside
 Accessory Lady, Inc.

 	
  

 	
 Louisiana

 
	
 Mainplace
 Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Mall
 Del Norte Accessory Lady, Inc.

 	
  

 	
 Texas

 
	
 McAllen
 Accessory Lady, Inc.

 	
  

 	
 Texas

 
	
 Penn
 Square Accessory Lady, Inc.

 	
  

 	
 Oklahoma 

 
	
 Pentagon
 City Accessory Lady, Inc.

 	
  

 	
 Virginia

 
	
 Raceway
 Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Randhurst
 Accessory Lady, Inc.

 	
  

 	
 Illinois

 
	
 Regency
 Square Accessory Lady, Inc.

 	
  

 	
 Florida

 
	
 Ridgedale
 Accessory Lady, Inc.

 	
  

 	
 Minnesota

 
	
 McLean
 Accessory Lady, Inc.

 	
  

 	
 Virginia

 
	
 Menlo
 Park Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Montclair
 Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Montgomery
 Accessory Lady, Inc.

 	
  

 	
 Maryland

 
	
 Northbrook
 Accessory Lady, Inc.

 	
  

 	
 Illinois

 
	
 North
 County Fair Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Northridge
 Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Oakbrook
 Center Accessory Lady, Inc.

 	
  

 	
 Illinois

 
	
 The
 Oaks Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Orlando
 Accessory Lady, Inc.

 	
  

 	
 Florida

 
	
 Paradise
 Valley Accessory Lady, Inc.

 	
  

 	
 Arizona

 
	
 Palm
 Beach Mall Accessory Lady, Inc.

 	
  

 	
 Florida

 
	
 Paramus
 Park Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 The
 Parks Accessory Lady, Inc.

 	
  

 	
 Texas

 
	
 Riverside
 Hackensack Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Roosevelt
 Field Accessory Lady, Inc.

 	
  

 	
 New York

 
	
 Scottsdale
 Accessory Lady, Inc.

 	
  

 	
 Arizona

 
	
 Southdale
 Accessory Lady, Inc.

 	
  

 	
 Minnesota

 
	
 St.
 Louis Galleria Accessory Lady, Inc.

 	
  

 	
 Missouri

 
	
 Stoneridge
 Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Stonestown
 Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Sunrise
 Boulevard (Fla.) Accessory Lady, Inc.

 	
  

 	
 Florida

 
	
 Sunvalley
 Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Towson
 Accessory Lady, Inc.

 	
  

 	
 Maryland

 
	
 Tri-County
 Accessory Lady, Inc.

 	
  

 	
 Ohio

 
	
 Tysons
 Corner Accessory Lady, Inc.

 	
  

 	
 Virginia

 
	
 Valley
 Fair Accessory Lady, Inc.

 	
  

 	
 California

 


17









	
  

 	
  

 	
  

 
	
  [Foot
 Locker, Inc. — (Cont.)]

 	
  

 	
  

 
	
  [Foot Locker Specialty, Inc. — (Cont.)]

 	
  

 	
  

 
	
  [Rosedale Accessory Lady, Inc. — (Cont.)]

 	
  

 	
  

 
	
 Willowbrook
 Accessory Lady, Inc.

 	
  

 	
 New Jersey

 
	
 Woodman
 Avenue Accessory Lady, Inc.

 	
  

 	
 California

 
	
 Foot Locker Retail, Inc.

 	
  

 	
 New York

 
	
 Armel, Inc.

 	
  

 	
 Florida

 
	
 Armel
 Acquisition, Inc.

 	
  

 	
 Florida

 
	
 Champs of Crossgates, Inc.

 	
  

 	
 Florida

 
	
 Champs of Holyoke, Inc.

 	
  

 	
 Florida

 
	
 Champs Sporting Goods of Esplanade, Inc.

 	
  

 	
 Florida

 
	
 Champs Sporting Goods, Inc.

 	
  

 	
 Tennessee

 
	
 Champs Sport Shops, Inc. of Maryville

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc. of Cutler Ridge

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc. of Broward

 	
  

 	
 Florida

 
	
 Champs Sport Shops of Daytona, Inc.

 	
  

 	
 Florida

 
	
 San Del of Jacksonville, Inc.

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc. of 163rd Street

 	
  

 	
 Florida

 
	
 San Del, Inc. of Atlanta

 	
  

 	
 Florida

 
	
 Champs Four Seasons, Inc.

 	
  

 	
 North Carolina

 
	
 Joe Chichelo, Inc.

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc.

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc. of Aventura

 	
  

 	
 Florida

 
	
 Champs Sporting Goods of N.C., Inc.

 	
  

 	
 North Carolina

 
	
 Champs Sport Shops, Inc. of Miami International

 	
  

 	
 Florida

 
	
 Champs Sporting Goods, Inc.

 	
  

 	
 Louisiana

 
	
 Champs Sport Shops, Inc. of Omni

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc. of Nashville

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc. of Houston

 	
  

 	
 Florida

 
	
 Champs Sport Shops, Inc. of Fort Lauderdale

 	
  

 	
 Florida

 
	
 Sneakers Inc. of Greensboro

 	
  

 	
 North Carolina

 
	
 Sneakers Inc. of Knoxville

 	
  

 	
 Tennessee

 
	
 Sneakers Inc. of Daytona Beach

 	
  

 	
 Florida

 
	
 Champs
 of Maryland, Inc.

 	
  

 	
 Florida

 
	
 Champs
 of Virginia, Inc.

 	
  

 	
 Florida

 
	
 SneaKee
 Feet of Maryland, Inc.

 	
  

 	
 Florida

 
	
 SneaKee
 Feet of Montgomery Village, Inc.

 	
  

 	
 Florida

 
	
 SneaKee
 Feet of North Carolina, Inc.

 	
  

 	
 Florida

 
	
 Runner-Up
 of Orlando, Inc.

 	
  

 	
 Florida

 
	
 SneaKee
 Feet of Tampa, Inc.

 	
  

 	
 Florida

 
	
 SneaKee
 Feet, Inc.

 	
  

 	
 Florida

 
	
 Champs
 of Missouri, Inc.

 	
  

 	
 Missouri

 
	
 Champs
 Sport Shops of Maryland, Inc.

 	
  

 	
 Maryland

 


18









	
  

 	
  

 	
  

 
	
  [Foot
 Locker, Inc. — (Cont.)]

 	
  

 	
  

 
	
  [Foot Locker Retail, Inc. — (Cont.)]

 	
  

 	
  

 
	
  [Armel, Inc. — (Cont.)]

 	
  

 	
  

 
	
 Champs of Connecticut, Inc.

 	
  

 	
 Connecticut

 
	
 Champs Sport Shops of Massachusetts, Inc.

 	
  

 	
 Massachusetts

 
	
 Champs of Georgia, Inc.

 	
  

 	
 Georgia

 
	
 Champs of New Jersey, Inc.

 	
  

 	
 New Jersey

 
	
 Champs of Oklahoma, Inc.

 	
  

 	
 Oklahoma

 
	
 Champs of Tennessee, Inc.

 	
  

 	
 Tennessee

 
	
 SneaKee Feet of Washington Outlet Mall, Inc.

 	
  

 	
 Florida

 
	
 FL Retail Operations LLC

 	
  

 	
 New York 

 
	
 Foot Locker Card Services LLC

 	
  

 	
 Virginia

 
	
 Foot Locker Retail New York, Inc.

 	
  

 	
 Delaware

 
	
 FL Europe Holdings, Inc.

 	
  

 	
 Delaware

 
	
 FL Retail NY, LLC

 	
  

 	
 Delaware

 
	
 Foot Locker Atlantic City, LLC

 	
  

 	
 Delaware

 
	
 Menlo Trading Company

 	
  

 	
 California

 
	
 Athletic Shoe Factory, Inc.

 	
  

 	
 California

 
	
 Foot Locker Stores, Inc.

 	
  

 	
 Delaware

 
	
 Janess Properties, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker Investments LLC

 	
  

 	
 Delaware

 
	
 Foot Locker Corporate Services, Inc.

 	
  

 	
 Delaware

 
	
 Kinney Trading Corp.

 	
  

 	
 New York

 
	
 Robby’s Sporting Goods, Inc.

 	
  

 	
 Florida

 
	
 SFMB Specialty Corporation

 	
  

 	
 California

 
	
 Foot Locker Realty, Inc.

 	
  

 	
 New York

 
	
 Foot Locker Dominican Republic, LLC

 	
  

 	
 Delaware

 
	
 Foot Locker Asia, Inc.

 	
  

 	
 Delaware 

 
	
 Foot Locker (Thailand) Co., Ltd.

 	
  

 	
 Thailand 

 
	
 Foot Locker China, Inc.

 	
  

 	
 Delaware

 
	
 Foot Locker Japan, Inc.

 	
  

 	
 Delaware 

 
	
 Kids Mart, Inc.10

 	
  

 	
 Florida

 
	
 Kids Mart, Inc.

 	
  

 	
 Delaware 

 
	
 Little Folk Shop Inc.

 	
  

 	
 Delaware

 
	
 Randy River, Inc.

 	
  

 	
 Delaware

 



 10 1 million
 shares of Series A Convertible Preferred Stock, par value $.001 per share,
 pursuant to a Stock Acquisition Agreement dated May 30, 1996. 



19






Schedule 5.17


Intellectual Property Matters 


NONE


20






Schedule 5.18


Collective Bargaining Agreements


Collective
Bargaining Agreement, dated June 1, 1998 through May 31, 2001, by and between
Woolworths-211 South State Street and International Union of Operating
Engineers, Local 399, and related Memorandum of Agreement, dated as of June 1,
2011, by and between Foot Locker Specialty, Inc. and International Union of
Operating Engineers, Local 399, applying to engineers employed by Foot Locker
Specialty, Inc., located at 211 State Street, Chicago, IL, effective through
May 31, 2014. 


21






Schedule 6.02


Financial and Collateral Reporting


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 DATE

 	
  

 	
 (X)

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 Quarterly
 (due on fifteenth day of each Fiscal Quarter)11

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 •

 	
 Borrowing Base Certificate
 (BBC) with the following backup:

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Borrowing Base backup to be received w/ BBC:

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 •

 	
 Inventory Roll forward
 (Departmental Operating Statement – DOS)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Shrink (AFAD and Champs
 Combining Forms)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Consignment Summary (DOS
 and Gross Margin System)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Summary of RTV Inventory by
 Location (General Ledger Query)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Eligible Credit Card
 Receivables (AFAD and Champs Combining Forms)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Rent Reserve (Accounts
 Payable)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Gift Card Liability
 Analysis (Balance Sheet & First Data Report)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Layaway Activity Report
 (Accounts Receivable Sub ledger)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Monthly
 (within 30 days after fiscal month end if requested by Agent):

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 •

 	
 Monthly Financial
 Statements (Consolidated statements of income or operations and cash flows)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Officer’s Compliance
 Certificate

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Adjusted Availability

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Quarterly
 (within 45 days after the end of first three fiscal quarters):

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 •

 	
 Form 10-Q

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
 •

 	
 Officer’s Compliance
 Certificate

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Annually
 (within 90 days after year end):

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 •

 	
 Audited Annual Financial
 Statements (Form 10-K)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 



 	
  

 
	
 •

 	
 Officer’s Compliance
 Certificate (with MD&A)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Annually
 (within 45 days after year end):

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 •

 	
 Upcoming Fiscal Year Budget
 and Projections

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (Quarterly I/S, B/S, CF, Availability model)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 	

 


 	

 


 	
  

 






	
  

 	
  

 
	
 Mailed to:

 	
 William P. Keenan

 
	
  

 	
 100 Federal Street

 
	
  

 	
 MA5-100-09-09

 
	
  

 	
 Boston, MA 02110

 
	
  

 	
 Tel: (617) 434-2490

 
	
  

 	
 Fax: (617) 434-4131

 





 11 Such materials to be
 delivered (i) on the fifteenth day of each Fiscal Month if a Monthly
 Accelerated Borrowing Base Delivery Event shall have occurred and be
 continuing, or (ii) on the Wednesday of each week if a Weekly Accelerated
 Borrowing Base Delivery Event shall have occurred and be continuing.


22





Schedule 7.01


Existing Liens


NONE


23





Schedule 7.02


Existing Investments12


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Issuer

 	
  

 	
 Amount

 	
  

 	
 Start Date

 	
  

 	
  

 	
 Maturity Date

 	
  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	
  

 	

 


 	
  

 
	
 HSBC Bank USA (Savings
 Account)

 	
  

 	
 $

 	
 44,839,420

 	
  

 	
  

 	
 1/20/2012

 	
  

 	
  

 	
 1/23/2012

 	
  

 
	
 Capital One Bank (Money
 Market Deposit)

 	
  

 	
 $

 	
 75,000,000

 	
  

 	
  

 	
 1/20/2012

 	
  

 	
  

 	
 1/23/2012

 	
  

 
	
 JPMorgan Chase (Money
 Market Deposit)

 	
  

 	
 $

 	
 103,436,000

 	
  

 	
  

 	
 1/20/2012

 	
  

 	
  

 	
 1/23/2012

 	
  

 
	
 TD Bank (Commercial
 High-Rate Money Market)

 	
  

 	
 $

 	
 50,000,000

 	
  

 	
  

 	
 1/20/2012

 	
  

 	
  

 	
 1/23/2012

 	
  

 
	
 U.S. Bancorp (Open
 Time Deposit)

 	
  

 	
 $

 	
 36,091,518

 	
  

 	
  

 	
 1/20/2012

 	
  

 	
  

 	
 1/23/2012

 	
  

 
	
 Summary U.S. Statistics

 	
  

 	
 $

 	
 309,366,938

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Issuer

 	
  

 	
 Amount

 	
  

 	
 Start Date

 	
  

 	
  

 	
 Maturity Date

 	
  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	
  

 	

 


 	
  

 
	
 Auction Rate Security
 (Floating Rate Non-Cumulative Preferred Stock, Series 5)

 	
  

 	
  

 	
 7,000,000

 	
  

 	
  

 	
 11/22/2011

 	
  

 	
  

 	
 2/22/2012

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Issuer

 	
  

 	
  

 	
  

 	
  

 	
 Face Value

 	
  

 	
  

 	
  

 	
  

 
	

 


 	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 	
  

 	
  

 	
  

 
	
 Northern Note

 	
  

 	
  

 	
  

 	
  

 	
 $

 	
 10,000,000

 	
  

 	
  

 	
  

 	
  

 





 12 Investments as of January 20, 2012 


24





Schedule 7.03


Existing Indebtedness


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Bonds

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Bonds Outstanding

 	
  

 	
 Custodian Bank

 	
  

 	
 Coupon

 	
  

 	
 Maturity

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 $119,597,000

 	
  

 	
 Bank of New
 York Mellon

 	
  

 	
 8.50%

 	
  

 	
 1/15/2022

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 See
 attached.

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 


25






Schedule 7.03


Existing Indebtedness (continued)



	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 FX Deals
 Outstanding

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 
	
 Contract

 Number

 	
  

 	
 Trade

 Date

 	
  

 	
 Settle

 Date

 	
  

 	
 Company

 	
  

 	
 Transaction

 Type

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Buy/

 Sell

 	
  

 	
 Amount

 	
  

 	
 Spot

 Rate

 	
  

 	
 Fwd Pts.

 	
  

 	
 All-In

 Rate

 	
  

 	
  

 	
  

 	
 Buy/

 Sell

 	
  

 	
 Amount

 	
  

 	
 FX

 Dealer

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	
  

 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 110628

 	
  

 	
 11-Jul-11

 	
  

 	
 15-Feb-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.880000

 	
  

 	
 -0.0029

 	
  

 	
 0.877100

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,754,200.00

 	
  

 	
 BoA

 
	
 110805

 	
  

 	
 11-Aug-11

 	
  

 	
 15-Feb-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,600,000.00

 	
  

 	
 0.875000

 	
  

 	
 0.0001

 	
  

 	
 0.875100

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,400,160.00

 	
  

 	
 BoA

 
	
 110629

 	
  

 	
 11-Jul-11

 	
  

 	
 15-Mar-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.880000

 	
  

 	
 -0.0033

 	
  

 	
 0.876700

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,753,400.00

 	
  

 	
 BoA

 
	
 110806

 	
  

 	
 11-Aug-11

 	
  

 	
 15-Mar-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 700,000.00

 	
  

 	
 0.875000

 	
  

 	
 0.00015

 	
  

 	
 0.875150

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 612,605.00

 	
  

 	
 BoA

 
	
 110808

 	
  

 	
 12-Aug-11

 	
  

 	
 15-Mar-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,700,000.00

 	
  

 	
 0.875000

 	
  

 	
 -0.0001

 	
  

 	
 0.874900

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 2,362,230.00

 	
  

 	
 BoA

 
	
 110630

 	
  

 	
 11-Jul-11

 	
  

 	
 17-Apr-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.880000

 	
  

 	
 -0.0036

 	
  

 	
 0.876400

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 876,400.00

 	
  

 	
 BoA

 
	
 110631

 	
  

 	
 12-Jul-11

 	
  

 	
 17-Apr-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.880000

 	
  

 	
 -0.0035

 	
  

 	
 0.876500

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 876,500.00

 	
  

 	
 BoA

 
	
 110809

 	
  

 	
 12-Aug-11

 	
  

 	
 17-Apr-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,600,000.00

 	
  

 	
 0.875000

 	
  

 	
 0

 	
  

 	
 0.875000

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,400,000.00

 	
  

 	
 BoA

 
	
 110632

 	
  

 	
 12-Jul-11

 	
  

 	
 16-May-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.880000

 	
  

 	
 -0.0037

 	
  

 	
 0.876300

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,752,600.00

 	
  

 	
 BoA

 
	
 110810

 	
  

 	
 12-Aug-11

 	
  

 	
 16-May-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.875000

 	
  

 	
 0

 	
  

 	
 0.875000

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,750,000.00

 	
  

 	
 BoA

 
	
 110633

 	
  

 	
 12-Jul-11

 	
  

 	
 20-Jun-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.880000

 	
  

 	
 -0.004

 	
  

 	
 0.876000

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,752,000.00

 	
  

 	
 BoA

 
	
 110811

 	
  

 	
 12-Aug-11

 	
  

 	
 20-Jun-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.875000

 	
  

 	
 0.0001

 	
  

 	
 0.875100

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,750,200.00

 	
  

 	
 BoA

 
	
 110807

 	
  

 	
 11-Aug-11

 	
  

 	
 18-Jul-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,700,000.00

 	
  

 	
 0.875000

 	
  

 	
 0.0004

 	
  

 	
 0.875400

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,488,180.00

 	
  

 	
 BoA

 
	
 110812

 	
  

 	
 12-Aug-11

 	
  

 	
 18-Jul-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,800,000.00

 	
  

 	
 0.875000

 	
  

 	
 0.0001

 	
  

 	
 0.875100

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 2,450,280.00

 	
  

 	
 BoA

 
	
 111211

 	
  

 	
 14-Dec-11

 	
  

 	
 15-Aug-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 3,100,000.00

 	
  

 	
 0.839280

 	
  

 	
 0.00519

 	
  

 	
 0.844470

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 2,617,857.00

 	
  

 	
 BoA

 
	
 110113

 	
  

 	
 13-Jan-12

 	
  

 	
 15-Aug-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.828450

 	
  

 	
 0.0033

 	
  

 	
 0.831750

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,663,500.00

 	
  

 	
 Wells

 
	
 110119

 	
  

 	
 20-Jan-12

 	
  

 	
 15-Aug-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.832300

 	
  

 	
 0.003001

 	
  

 	
 0.835301

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 835,301.00

 	
  

 	
 HSBC

 
	
 111212

 	
  

 	
 14-Dec-11

 	
  

 	
 12-Sep-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,500,000.00

 	
  

 	
 0.839400

 	
  

 	
 0.005671

 	
  

 	
 0.845071

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 2,112,677.50

 	
  

 	
 HSBC

 
	
 110114

 	
  

 	
 13-Jan-12

 	
  

 	
 12-Sep-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.828050

 	
  

 	
 0.003932

 	
  

 	
 0.831982

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 831,982.00

 	
  

 	
 HSBC

 
	
 110120

 	
  

 	
 20-Jan-12

 	
  

 	
 12-Sep-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.832300

 	
  

 	
 0.003541

 	
  

 	
 0.835841

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 835,841.00

 	
  

 	
 HSBC

 
	
 110106

 	
  

 	
 10-Jan-12

 	
  

 	
 17-Oct-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,600,000.00

 	
  

 	
 0.826110

 	
  

 	
 0.004854

 	
  

 	
 0.830964

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,329,542.40

 	
  

 	
 BoA

 
	
 110115

 	
  

 	
 13-Jan-12

 	
  

 	
 17-Oct-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.828200

 	
  

 	
 0.0046

 	
  

 	
 0.832800

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 832,800.00

 	
  

 	
 US Bank

 
	
 110107

 	
  

 	
 10-Jan-12

 	
  

 	
 14-Nov-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,500,000.00

 	
  

 	
 0.826100

 	
  

 	
 0.0054

 	
  

 	
 0.831500

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 2,078,750.00

 	
  

 	
 US Bank

 
	
 110116

 	
  

 	
 13-Jan-12

 	
  

 	
 14-Nov-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.827950

 	
  

 	
 0.00539

 	
  

 	
 0.833340

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 833,340.00

 	
  

 	
 HSBC

 
	
 110108

 	
  

 	
 10-Jan-12

 	
  

 	
 19-Dec-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 3,300,000.00

 	
  

 	
 0.826100

 	
  

 	
 0.0061

 	
  

 	
 0.832200

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 2,746,260.00

 	
  

 	
 Wells

 
	
 110117

 	
  

 	
 13-Jan-12

 	
  

 	
 19-Dec-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 0.828200

 	
  

 	
 0.0059

 	
  

 	
 0.834100

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 834,100.00

 	
  

 	
 US Bank

 
	
 110118

 	
  

 	
 19-Jan-12

 	
  

 	
 19-Dec-12

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 2,000,000.00

 	
  

 	
 0.837700

 	
  

 	
 0.0053

 	
  

 	
 0.843000

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 1,686,000.00

 	
  

 	
 US Bank

 
	
 110109

 	
  

 	
 10-Jan-12

 	
  

 	
 16-Jan-13

 	
  

 	
 Foot Locker UK

 	
  

 	
 12 BP/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 1,200,000.00

 	
  

 	
 0.826100

 	
  

 	
 0.0067

 	
  

 	
 0.832800

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 999,360.00

 	
  

 	
 Wells

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 110110

 	
  

 	
 12-Jan-12

 	
  

 	
 15-Feb-12

 	
  

 	
 Foot Locker Europe

 	
  

 	
 2012 USD/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 USD

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 1.281400

 	
  

 	
 0.000069

 	
  

 	
 1.281469

 	
  

 	
 EUR

 	
  

 	
 S

 	
  

 	
 780,354.42

 	
  

 	
 HSBC

 
	
 110111

 	
  

 	
 12-Jan-12

 	
  

 	
 15-Mar-12

 	
  

 	
 Foot Locker Europe

 	
  

 	
 2012 USD/EUR Merch Hedge

 	
  

 	
 FWD

 	
  

 	
 USD

 	
  

 	
 B

 	
  

 	
 1,000,000.00

 	
  

 	
 1.283100

 	
  

 	
 0.000202

 	
  

 	
 1.283302

 	
  

 	
 EUR

 	
  

 	
 S

 	
  

 	
 779,239.80

 	
  

 	
 HSBC

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 111210

 	
  

 	
 13-Dec-11

 	
  

 	
 13-Jun-12

 	
  

 	
 FL Finance (Europe) Ltd.

 	
  

 	
 Loan Repayment from FL UK

 	
  

 	
 FWD

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 7,400,000.00

 	
  

 	
 0.842600

 	
  

 	
 0.0038

 	
  

 	
 0.846400

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 8,742,911.15

 	
  

 	
 US Bank

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 110121

 	
  

 	
 20-Jan-12

 	
  

 	
 24-Jan-12

 	
  

 	
 Foot Locker Europe

 	
  

 	
 TPA Adjustment

 	
  

 	
 SPOT

 	
  

 	
 EUR

 	
  

 	
 S

 	
  

 	
 5,372,510.00

 	
  

 	
 0.830580

 	
  

 	
  

 	
  

 	
 0.830580

 	
  

 	
 GBP

 	
  

 	
 B

 	
  

 	
 4,462,299.36

 	
  

 	
 BoA

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 111208

 	
  

 	
 13-Dec-11

 	
  

 	
 13-Jun-12

 	
  

 	
 FL Finance (Europe) Ltd.

 	
  

 	
 Loan Repayment from FL UK

 	
  

 	
 FWD

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 5,500,000.00

 	
  

 	
 0.844600

 	
  

 	
 0.003359

 	
  

 	
 0.847959

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 6,486,162.66

 	
  

 	
 BoA

 
	
 110122

 	
  

 	
 20-Jan-12

 	
  

 	
 25-Jan-12

 	
  

 	
 FL Finance (Europe) Ltd.

 	
  

 	
 Loan Repayment from FL UK

 	
  

 	
 FWD

 	
  

 	
 GBP

 	
  

 	
 S

 	
  

 	
 5,500,000.00

 	
  

 	
 0.830700

 	
  

 	
 0.000013

 	
  

 	
 0.830713

 	
  

 	
 EUR

 	
  

 	
 B

 	
  

 	
 6,620,818.50

 	
  

 	
 BoA

 
	
 110123

 	
  

 	
 20-Jan-12

 	
  

 	
 13-Jun-12

 	
  

 	
 FL Finance (Europe) Ltd.

 	
  

 	
 Loan
 Repayment from FL UK - Close Out

 	
  

 	
 FWD

 	
  

 	
 GBP

 	
  

 	
 B

 	
  

 	
 5,500,000.00

 	
  

 	
 0.830700

 	
  

 	
 0.001652

 	
  

 	
 0.832352

 	
  

 	
 EUR

 	
  

 	
 S

 	
  

 	
 6,607,781.32

 	
  

 	
 BoA

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 111104

 	
  

 	
 11-Nov-11

 	
  

 	
 15-Feb-12

 	
  

 	
 FL Canada Holdings, Inc.

 	
  

 	
 Q4 Royalty

 	
  

 	
 FWD

 	
  

 	
 CAD

 	
  

 	
 S

 	
  

 	
 700,000.00

 	
  

 	
 1.015900

 	
  

 	
 0.002038

 	
  

 	
 1.017938

 	
  

 	
 USD

 	
  

 	
 B

 	
  

 	
 687,664.67

 	
  

 	
 Wells

 
	
 111202

 	
  

 	
 09-Dec-11

 	
  

 	
 15-Feb-12

 	
  

 	
 FL Canada Holdings, Inc.

 	
  

 	
 Q4 Royalty

 	
  

 	
 FWD

 	
  

 	
 CAD

 	
  

 	
 S

 	
  

 	
 1,250,000.00

 	
  

 	
 1.019620

 	
  

 	
 0.001621

 	
  

 	
 1.021241

 	
  

 	
 USD

 	
  

 	
 B

 	
  

 	
 1,224,000.99

 	
  

 	
 BoA

 
	
 110105

 	
  

 	
 10-Jan-12

 	
  

 	
 15-Feb-12

 	
  

 	
 FL Canada Holdings, Inc.

 	
  

 	
 Q4 Royalty

 	
  

 	
 FWD

 	
  

 	
 CAD

 	
  

 	
 S

 	
  

 	
 650,000.00

 	
  

 	
 1.016600

 	
  

 	
 0.000797

 	
  

 	
 1.017397

 	
  

 	
 USD

 	
  

 	
 B

 	
  

 	
 638,885.31

 	
  

 	
 HSBC

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 111021

 	
  

 	
 27-Oct-11

 	
  

 	
 25-Jan-12

 	
  

 	
 Foot Locker, Inc.

 	
  

 	
 2011 Earnings Translation - Q4

 	
  

 	
 OPT-PUT

 	
  

 	
 EUR

 	
  

 	
 PUT

 	
  

 	
 30,000,000.00

 	
  

 	
 1.375000

 	
  

 	
  

 	
  

 	
 1.375000

 	
  

 	
 USD

 	
  

 	
 S

 	
  

 	
 41,250,000.00

 	
  

 	
 JPMC

 






	
  

 
	
 Fuel
 Hedge

 
	

 


 






	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 2012 Forward Contracts

 
	

 


 
	
 Fiscal Month

 	
  

 	
 Amount

 Hedged

 	
  

 	
 Contract Start Date

 	
  

 	
 Contract End Date

 	
  

 	
 Trade Price

 	
  

 	
 Notional Value

 	
  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 
	
 January

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Goldman

 	
  

 	
 80,000

 	
  

 	
 1/1/12

 	
  

 	
 1/31/12

 	
  

 	
 $

 	
 4.0420

 	
  

 	
 $

 	
 323,360 

 	
  

 
	
 Barclays

 	
  

 	
 95,000

 	
  

 	
 1/1/12

 	
  

 	
 1/31/12

 	
  

 	
 $

 	
 3.7550

 	
  

 	
 $

 	
 356,725 

 	
  

 
	
 February

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Goldman

 	
  

 	
 75,000

 	
  

 	
 2/1/12

 	
  

 	
 2/29/12

 	
  

 	
 $

 	
 4.0420

 	
  

 	
 $

 	
 303,150 

 	
  

 
	
 Barclays

 	
  

 	
 75,000

 	
  

 	
 2/1/12

 	
  

 	
 2/29/12

 	
  

 	
 $

 	
 3.7550

 	
  

 	
 $

 	
 281,625 

 	
  

 
	
 March

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Goldman

 	
  

 	
 70,000

 	
  

 	
 3/1/12

 	
  

 	
 3/31/12

 	
  

 	
 $

 	
 4.0420

 	
  

 	
 $

 	
 282,940 

 	
  

 
	
 Barclays

 	
  

 	
 55,000

 	
  

 	
 3/1/12

 	
  

 	
 3/31/12

 	
  

 	
 $

 	
 3.7550

 	
  

 	
 $

 	
 206,525 

 	
  

 
	
 April

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Goldman

 	
  

 	
 70,000

 	
  

 	
 4/1/12

 	
  

 	
 4/30/12

 	
  

 	
 $

 	
 4.0420

 	
  

 	
 $

 	
 282,940 

 	
  

 
	
 Barclays

 	
  

 	
 65,000

 	
  

 	
 4/1/12

 	
  

 	
 4/30/12

 	
  

 	
 $

 	
 3.7550

 	
  

 	
 $

 	
 244,075 

 	
  

 
	
 May

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Goldman

 	
  

 	
 85,000

 	
  

 	
 5/1/12

 	
  

 	
 5/31/12

 	
  

 	
 $

 	
 4.0420

 	
  

 	
 $

 	
 343,570 

 	
  

 
	
 Barclays

 	
  

 	
 90,000

 	
  

 	
 5/1/12

 	
  

 	
 5/31/12

 	
  

 	
 $

 	
 3.7550

 	
  

 	
 $

 	
 337,950 

 	
  

 
	
 June

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Barclays

 	
  

 	
 84,000

 	
  

 	
 6/1/12

 	
  

 	
 6/30/12

 	
  

 	
 $

 	
 3.8570

 	
  

 	
 $

 	
 323,988 

 	
  

 
	
 Goldman

 	
  

 	
 84,000

 	
  

 	
 6/1/12

 	
  

 	
 6/30/12

 	
  

 	
 $

 	
 3.7400

 	
  

 	
 $

 	
 314,160 

 	
  

 
	
 July

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Barclays

 	
  

 	
 84,000

 	
  

 	
 7/1/12

 	
  

 	
 7/31/12

 	
  

 	
 $

 	
 3.8570

 	
  

 	
 $

 	
 323,988 

 	
  

 
	
 Goldman

 	
  

 	
 84,000

 	
  

 	
 7/1/12

 	
  

 	
 7/31/12

 	
  

 	
 $

 	
 3.7400

 	
  

 	
 $

 	
 314,160 

 	
  

 
	
 August

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Barclays

 	
  

 	
 84,000

 	
  

 	
 8/1/12

 	
  

 	
 8/31/12

 	
  

 	
 $

 	
 3.8570

 	
  

 	
 $

 	
 323,988 

 	
  

 
	
 Goldman

 	
  

 	
 84,000

 	
  

 	
 8/1/12

 	
  

 	
 8/31/12

 	
  

 	
 $

 	
 3.7400

 	
  

 	
 $

 	
 314,160 

 	
  

 
	
 September

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Barclays

 	
  

 	
 84,000

 	
  

 	
 9/1/12

 	
  

 	
 9/30/12

 	
  

 	
 $

 	
 3.8570

 	
  

 	
 $

 	
 323,988 

 	
  

 
	
 Goldman

 	
  

 	
 84,000

 	
  

 	
 9/1/12

 	
  

 	
 9/30/12

 	
  

 	
 $

 	
 3.7400

 	
  

 	
 $

 	
 314,160 

 	
  

 
	
 October

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Barclays

 	
  

 	
 84,000

 	
  

 	
 10/1/12

 	
  

 	
 10/31/12

 	
  

 	
 $

 	
 3.8570

 	
  

 	
 $

 	
 323,988 

 	
  

 
	
 Goldman

 	
  

 	
 84,000

 	
  

 	
 10/1/12

 	
  

 	
 10/31/12

 	
  

 	
 $

 	
 3.7400

 	
  

 	
 $

 	
 314,160 

 	
  

 
	
 November

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Barclays

 	
  

 	
 84,000

 	
  

 	
 11/1/12

 	
  

 	
 11/30/12

 	
  

 	
 $

 	
 3.8570

 	
  

 	
 $

 	
 323,988 

 	
  

 
	
 Goldman

 	
  

 	
 84,000

 	
  

 	
 11/1/12

 	
  

 	
 11/30/12

 	
  

 	
 $

 	
 3.7400

 	
  

 	
 $

 	
 314,160 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 
	
 2012 Forward
 Contract Total

 	
  

 	
 1,768,000

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 $

 	
 6,791,748 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 


26






Schedule 10.02


Administrative Agent’s Office; Certain
Addresses for Notices


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Party

 	
  

 	
 Address

 	
  

 	
 Fax Number

 	
  

 	
 Email Address

 	
  

 	
 Telephone Number

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
 Borrower:

  Foot Locker, Inc.

Website:
 http://www.footlocker-inc.com/

 	
  

 	
 112 West 34th
 Street

 New York, NY 10120

 

 with a copy to:

 
Skadden, Arps, Slate,

 Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attn: Thomas Gowan, Esq.

 	
  

 	
 (212) 720-4391



 	
  

 	
 jmaurer@footlocker.com

 

 
thomas.gowan@skadden.com

 	
  

 	
 (212) 720-4092

 

 

 

 (212) 735-3000

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Guarantors

 	
  

 	
 112 West 34th
 Street

 New York, NY 10120

 

 with a copy to:

 
Skadden, Arps, Slate,

 Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attn: Thomas Gowan, Esq.

 	
  

 	
 (212) 720-4391

 	
  

 	
 jmaurer@footlocker.com

 

 

 
thomas.gowan@skadden.com

 	
  

 	
 (212) 720-4092

 

 

 

 (212) 735-3000

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Administrative Agent,
 Collateral Agent, Swing Line Lender, L/C Issuer

 	
  

 	
 Bank of America, N.A.

 100 Federal Street, 9th
 Floor
Boston, Massachusetts 02110
Attn: Christine Hutchinson

 
with a copy to:

 
Riemer & Braunstein LLP
Three Center Plaza
Boston, Massachusetts 02108
Attention: David S. Berman, Esq.

 	
  

 	
 (617) 434-4339

 

 

 

 

 (617) 692-3550

 	
  

 	
 christine.hutchinson@baml.com

 

 

 

 dberman@riemerlaw.com

 	
  

 	
 (617) 434-2385

 

 

 

 (617) 523-9000

 



27





EXHIBIT
A


Form of Committed Loan Notice


COMMITTED LOAN NOTICE


Date: ____________, ______ 


	
  

 	
  

 
	
 To:

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

 


Ladies
and Gentlemen: 


          Reference
is made to that certain Amended and Restated Credit Agreement, dated as of
January 27, 2012 (as amended, restated, amended and restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”)
by, among others, FOOT LOCKER, INC., a New York corporation (the “Borrower”),
the Guarantors from time to time party thereto (individually, a “Guarantor”
and, collectively, the “Guarantors”), the Lenders from time to time
party thereto (individually, a “Lender” and, collectively, the “Lenders”),
and BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent, Swing
Line Lender and L/C Issuer. Capitalized terms used but not defined herein shall
have the meanings set forth in the Credit Agreement. 


          The
Borrower hereby requests a Committed Borrowing1: 


          1.
On
____________________________________ (a Business Day)2


          2.
In the amount of
$_____________________3


          3.
Comprised of
____________________________ (Type of Committed Loan)4


          4.
For LIBOR Rate Loans: with an
Interest Period of ____ months5


	
  

 	
  

 
	
  

 	

 

 

 


          1
A Committed Borrowing must be a borrowing, conversion or continuation
consisting of Committed Loans on a single date of the same Type and, in the
case of LIBOR Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section 2.01 of the Credit Agreement. 


          2
Each notice of a Committed Borrowing must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of LIBOR Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans. 


          3
Each Borrowing of LIBOR Rate Loans must be in a principal amount of $1,000,000
or a whole multiple of $1,000,000 in excess thereof. 


          4
Committed Loans may be either Base Rate Loans or LIBOR Rate Loans. If the Type
of Committed Loan is not specified, then the applicable Committed Loans will be
made as Base Rate Loans. 


          5
The Borrower may request a Committed Borrowing of LIBOR Rate Loans with an
Interest Period of one, two, three or six months or, if available to all of the
Lenders, nine or twelve months, as requested by the Borrower, and as further
provided in the Credit Agreement. If no election of Interest Period is
specified, then the Borrower will be deemed to have specified an Interest
Period of one month. 





          The
Borrower hereby represents and warrants that (a) the Committed Borrowing
requested herein complies with the provisions of Section 2.02 of the
Credit Agreement and (b) the conditions specified in Sections 4.02(a)
and 4.02(b) of the Credit Agreement have been satisfied on and as of the
date of the applicable Committed Borrowing. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FOOT LOCKER, INC., as
 Borrower

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 










EXHIBIT
B 


Form of Swing Line Loan Notice


SWING LINE LOAN NOTICE


Date: ___________, _____ 


	
  

 	
  

 
	
 To:

 	
 Bank of America, N.A., as
 Swing Line Lender 

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

 


Ladies
and Gentlemen: 


          Reference
is made to that certain Amended and Restated Credit Agreement, dated as of
January 27, 2012 (as amended, restated, amended and restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”)
by, among others, FOOT LOCKER, INC., a New York corporation (the “Borrower”),
the Guarantors from time to time party thereto (individually, a “Guarantor”
and, collectively, the “Guarantors”), the Lenders from time to time
party thereto (individually, a “Lender” and, collectively, the
“Lenders”), and BANK OF AMERICA, N.A., as Administrative Agent, Collateral
Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not defined
herein shall have the meanings set forth in the Credit Agreement. 


          The
Borrower hereby requests a Swing Line Borrowing: 


          1.
On ____________________________________ (a Business Day)1 


          2.
In the amount of
$______________________2


          The
Borrower hereby represents and warrants that the Swing Line Borrowing requested
herein complies with the provisions of Section 2.04 of the Credit
Agreement. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FOOT LOCKER, INC., as Borrower

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 






	
  

 
	
 

 

 



          1
Each notice of a Swing Line Borrowing must be received by the Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the requested date of
any Swing Line Borrowing. 


          2
Each Swing Line Borrowing shall be in a minimum amount of $100,000.00. 






EXHIBIT C-1


Form of Revolving Note


	
  

 	
  

 
	

 


 
	
  

 	
  

 
	
 REVOLVING NOTE

 
	
  

 	
  

 
	

 


 
	
  

 	
  

 
	
 $________________

 	
 ____________,
 2012

 


          FOR VALUE
RECEIVED, FOOT LOCKER, INC. (the “Borrower”) promises to pay to the order of
_________________________________ (hereinafter, with any subsequent holders,
the “Lender”), c/o Bank of America, N.A., 100 Federal Street, 9th Floor,
Boston, Massachusetts 02110, the principal sum of _____________________________
DOLLARS ($_____________), or, if less, the aggregate unpaid principal balance
of Loans made by the Lender to or for the account of the Borrower pursuant to
the Amended and Restated Credit Agreement dated as of January 27, 2012 (as
amended, restated, amended and restated, supplemented or otherwise modified and
in effect from time to time, the “Credit Agreement”) by, among others,
(i) the Borrower, (ii) the Guarantors from time to time party thereto
(individually, a “Guarantor” and, collectively, the “Guarantors”),
(iii) the Lenders from time to time party thereto (individually, a “Lender”
and, collectively, the “Lenders”), (iv) Bank of America, N.A., as
administrative agent (in such capacity, the “Administrative Agent”) for
its own benefit and the benefit of the other Lenders, (v) Bank of America,
N.A., as collateral agent (in such capacity, the “Collateral Agent”, and
together with the Administrative Agent, individually, an “Agent”, and
collectively, the “Agents”) for its own benefit and the benefit of the
other Credit Parties, and (vi) Bank of America, N.A., as Swing Line Lender and
L/C Issuer, with interest at the rate and payable in the manner stated therein.



          This
“Revolving Note” is a “Note” to which reference is made in the Credit Agreement
(including, without limitation, clause (a) of the definition of “Note” set
forth in Section 1.01 thereof) and is subject to all terms and
provisions thereof. The principal of, and interest on, this Revolving Note
shall be payable at the times, in the manner, and in the amounts as provided in
the Credit Agreement and shall be subject to prepayment and acceleration as
provided therein. Capitalized terms used herein and not defined herein shall
have the meanings assigned to such terms in the Credit Agreement. 


          The
Administrative Agent’s books and records concerning the Loans, the accrual of
interest thereon, and the repayment of such Loans, shall be prima facie
evidence of the indebtedness to the Lender hereunder. 


          No delay or
omission by any Agent or the Lender in exercising or enforcing any of such
Agent’s or the Lender’s powers, rights, privileges, remedies, or discretions
hereunder shall operate as a waiver thereof on that occasion nor on any other
occasion. No waiver of any Event of Default shall operate as a waiver of any
other Event of Default, nor as a continuing waiver of any such Event of
Default. 





          The
Borrower, and each endorser and guarantor of this Revolving Note, waives
presentment, demand, notice, and protest, and also waives any delay on the part
of the holder hereof. The Borrower assents to any extension or other indulgence
(including, without limitation, the release or substitution of Collateral)
permitted by any Agent and/or the Lender with respect to this Revolving Note
and/or any Collateral or any extension or other indulgence with respect to any
other liability or any collateral given to secure any other liability of the
Borrower or any other Person obligated on account of this Revolving Note. 


          This
Revolving Note shall be binding upon the Borrower, and each endorser and
guarantor hereof, and upon their respective successors and assigns, and shall
inure to the benefit of the Lender and its successors, endorsees, and assigns. 


          The
liabilities of the Borrower, and of any endorser or guarantor of this Revolving
Note, are joint and several, provided,
however, the release by any Agent or the Lender of any one or more
such Persons shall not release any other Person obligated on account of this
Revolving Note. Each reference in this Revolving Note to the Borrower, any
endorser, and any guarantor, is to such Person individually and also to all
such Persons jointly. 


          THIS
REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK (EXCEPT FOR THE CONFLICT OF LAWS RULES THEREOF, BUT INCLUDING
GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402). 


          THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING
IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS REVOLVING NOTE OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
REVOLVING NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT OR THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS REVOLVING NOTE OR ANY OTHER LOAN DOCUMENT AGAINST
THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. 


          THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY ACTION OR 






PROCEEDING
ARISING OUT OF OR RELATING TO THIS REVOLVING NOTE OR ANY OTHER LOAN DOCUMENT IN
ANY COURT REFERRED TO ABOVE. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. 


          The
Borrower makes the following waiver knowingly, voluntarily, and intentionally,
and understands that the Agents and the Lender, in the establishment and
maintenance of their respective relationship with the Borrower contemplated by
this Revolving Note, are each relying thereon. THE BORROWER AND THE LENDER, BY
ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS REVOLVING
NOTE OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND WHETHER
INITIATED BY OR AGAINST ANY SUCH PERSON OR IN WHICH ANY SUCH PERSON IS JOINED
AS A PARTY LITIGANT). THE BORROWER AND THE LENDER, BY ITS ACCEPTANCE HEREOF,
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT HAS BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT AND THIS REVOLVING
NOTE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN. 


 [SIGNATURE PAGE FOLLOWS]





          IN WITNESS
WHEREOF, the Borrower has caused this Revolving Note to be duly executed as of
the date set forth above. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BORROWER:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FOOT LOCKER,
 INC. 

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: 

 	
 John A. Maurer

 	
  

 
	
  

 	
 Title: 

 	
 Vice President, Treasurer and Investor
 Relations

 	
  

 









EXHIBIT C-2


Form of Swing Line Note


	
  

 	
  

 
	

 


 
	
  

 	
  

 
	
 SWING LINE NOTE

 	
  

 
	
  

 	
  

 
	

 


 
	
  

 	
  

 
	
 $________________

 	
 ____________,
 2012 

 


          FOR VALUE
RECEIVED, FOOT LOCKER, INC. (the “Borrower”) promises to pay to the order
of BANK OF AMERICA, N.A. (hereinafter, with any subsequent holders, the “Swing
Line Lender”), c/o Bank of America, N.A., 100 Federal Street, 9th Floor,
Boston, Massachusetts 02110, the principal sum of _____________________________
DOLLARS ($_____________), or, if less, the aggregate unpaid principal balance
of Swing Line Loans made by the Swing Line Lender to or for the account of any
Borrower pursuant to the Amended and Restated Credit Agreement dated as of
January 27, 2012 (as amended, restated, amended and restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”)
by, among others, (i) the Borrower, (ii) the Guarantors from time to time party
thereto (individually, a “Guarantor” and, collectively, the “Guarantors”),
(iii) the Lenders from time to time party thereto (individually, a “Lender”
and, collectively, the “Lenders”), (iv) Bank of America, N.A., as
administrative agent (in such capacity, the “Administrative Agent”) for
its own benefit and the benefit of the other Lenders, (v) Bank of America,
N.A., as collateral agent (in such capacity, the “Collateral Agent”, and
together with the Administrative Agent, individually, an “Agent”, and
collectively, the “Agents”) for its own benefit and the benefit of the other
Credit Parties, and (vi) the Swing Line Lender, with interest at the rate and
payable in the manner stated therein. 


          This is a
“Swing Line Note” to which reference is made in the Credit Agreement and is
subject to all terms and provisions thereof. The principal of, and interest on,
this Swing Line Note shall be payable at the times, in the manner, and in the
amounts as provided in the Credit Agreement and shall be subject to prepayment
and acceleration as provided therein. Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. 


          The
Administrative Agent’s books and records concerning the Swing Line Loans, the
accrual of interest thereon, and the repayment of such Swing Line Loans, shall
be prima facie evidence of the indebtedness to the Swing Line Lender hereunder.



          No delay or
omission by any Agent or the Swing Line Lender in exercising or enforcing any
of such Agent’s or the Swing Line Lender’s powers, rights, privileges,
remedies, or discretions hereunder shall operate as a waiver thereof on that
occasion nor on any other occasion. No waiver of any Event of Default shall
operate as a waiver of any other Event of Default, nor as a continuing waiver
of any such Event of Default. 






          The
Borrower, and each endorser and guarantor of this Swing Line Note, waives
presentment, demand, notice, and protest, and also waives any delay on the part
of the holder hereof. The Borrower assents to any extension or other indulgence
(including, without limitation, the release or substitution of Collateral)
permitted by any Agent and/or the Swing Line Lender with respect to this Swing
Line Note and/or any Collateral or any extension or other indulgence with
respect to any other liability or any collateral given to secure any other
liability of the Borrower or any other Person obligated on account of this
Swing Line Note. 


          This Swing
Line Note shall be binding upon the Borrower, and each endorser and guarantor
hereof, and upon their respective successors and assigns, and shall inure to
the benefit of the Swing Line Lender and its successors, endorsees, and
assigns. 


          The
liabilities of the Borrower, and of any endorser or guarantor of this Swing
Line Note, are joint and several, provided,
however, the release by any Agent or the Swing Line Lender of any
one or more such Persons shall not release any other Person obligated on
account of this Swing Line Note. Each reference in this Swing Line Note to the
Borrower, any endorser, and any guarantor, is to such Person individually and
also to all such Persons jointly. 


          THIS SWING
LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (EXCEPT FOR THE CONFLICT OF LAWS RULES THEREOF, BUT
INCLUDING GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402). 


          THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING
IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SWING LINE NOTE OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
SWING LINE NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT OR THE SWING LINE LENDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION. 


          THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT 






MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO ABOVE. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. 


          The
Borrower makes the following waiver knowingly, voluntarily, and intentionally,
and understands that the Agents and the Swing Line Lender, in the establishment
and maintenance of their respective relationship with the Borrower contemplated
by this Swing Line Note, are each relying thereon. THE BORROWER AND THE SWING
LINE LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS SWING LINE NOTE OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY AND WHETHER INITIATED BY OR AGAINST ANY SUCH PERSON OR IN WHICH ANY SUCH
PERSON IS JOINED AS A PARTY LITIGANT). THE BORROWER AND THE SWING LINE LENDER,
BY ITS ACCEPTANCE HEREOF, (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THE CREDIT AGREEMENT AND THIS SWING LINE NOTE BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS HEREIN. 


 [SIGNATURE PAGE FOLLOWS]





          IN WITNESS
WHEREOF, the Borrower has caused this Swing Line Note to be duly executed as of
the date set forth above. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BORROWER:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FOOT LOCKER,
 INC. 

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: 

 	
  

 	
  

 
	
  

 	
  

 	

 

 

 	
  

 
	
  

 	
 Title: 

 	
  

 	
  

 
	
  

 	
  

 	

 

 

 	
  

 










EXHIBIT D


Form of Compliance Certificate


COMPLIANCE CERTIFICATE


Date of Certificate: ______________ 


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


Ladies and Gentlemen: 


          Reference
is made to that certain Amended and Restated Credit Agreement, dated as of
January 27, 2012 (as amended, modified, supplemented or restated and in effect
from time to time, the “Credit Agreement”), by, among others, (i) Foot
Locker, Inc., a New York corporation (the “Borrower”), (ii) the
Guarantors party thereto, (iii) the Lenders party thereto (individually, a “Lender”
and, collectively, the “Lenders”), and (iv) Bank of America, N.A., as
Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer.
Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement. 


          The
undersigned, in his capacity as a duly authorized and acting Responsible
Officer of the Borrower, hereby certifies on behalf of the Borrower and each of
the other Loan Parties as of the date hereof the following: 


	
  

 	
  

 	
  

 
	
 1.

 	
 No Events of Default. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Since __________ (the date of the last Compliance Certificate
 delivered pursuant to Section 6.02 of the Credit Agreement), and except as
 set forth in Appendix I, no Event of Default has occurred and is continuing. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 If an Event of Default has occurred and is continuing since
 __________ (the date of the last Compliance Certificate delivered pursuant to
 Section 6.02 of the Credit Agreement), the Loan Parties have taken or propose
 to take those actions with respect to such Event of Default as described on
 said Appendix I. 

 
	
  

 	
  

 	
  

 
	
 2.

 	
 Financial Statements. 

 
	
  

 	
  

 	
  

 
	
  

 	
 [Use following paragraph (a) for
 fiscal year-end financial statements]

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Attached hereto as Appendix II are the Consolidated balance
 sheet of the Borrower and its Subsidiaries, as required by Section 6.01(a) of
 the Credit Agreement for the Fiscal Year ending ____________, and the related
 Consolidated statements of income or operations, Shareholders’ Equity and
 cash flows for such Fiscal Year, setting forth in each case in comparative
 form the 

 













	
  

 	
  

 	
  

 
	
  

 	
  

 	
 figures for the previous Fiscal Year, all in reasonable detail and
 prepared in accordance with GAAP, accompanied by a report and unqualified
 opinion of a Registered Public Accounting Firm of nationally recognized
 standing or otherwise reasonably acceptable to the Administrative Agent,
 which report and opinion has been prepared in accordance with the
 requirements of Section 6.01(a) of the Credit Agreement.

 
	
  

 	
  

 	
  

 
	
  

 	
 [Use following paragraph (b) for
 fiscal quarter-end financial statements]

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Attached hereto as Appendix II are the Consolidated balance
 sheet of the Borrower and its Subsidiaries, as required by Section 6.01(b) of
 the Credit Agreement for the Fiscal Quarter ending ___________, and the
 related Consolidated statements of income or operations, Shareholders’ Equity
 and cash flows for such Fiscal Quarter and for the portion of the Borrower’s
 Fiscal Year then ended, setting forth in each case in comparative form the
 figures for (A) the corresponding Fiscal Quarter of the previous Fiscal Year
 and (B) the corresponding portion of the previous Fiscal Year, all in
 reasonable detail. 

 
	
  

 	
  

 	
  

 
	
 3.

 	
 Changes in GAAP. In the event of any change
 in generally accepted accounting principles used in the preparation of any
 financial statements described in Section 2 above, attached hereto as Appendix
 III is the Borrower’s a statement of reconciliation conforming such
 financial statements to GAAP. 

 
	
  

 	
  

 
	
 4.

 	
 Management Discussion. Attached hereto as Appendix
 IV is a discussion and analysis prepared by management of the Borrower
 with respect to the financial statements delivered herewith. 

 


[signature page follows]





          IN
WITNESS WHEREOF, a duly authorized and acting Responsible Officer of the
Borrower, on behalf of the Borrower and each of the other Loan Parties, has
duly executed this Compliance Certificate as of __________________, 20__. 


	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 









APPENDIX I


          Except as
set forth below, no Event of Default has occurred and is continuing. [If an
Event of Default has occurred and is continuing, the following describes the
nature of the Event of Default in reasonable detail and the steps, if any,
being taken or contemplated by the Loan Parties to be taken on account
thereof.] 


Appendix I to Compliance Certificate





APPENDIX II


(Financial Statements)


[see attached]


Appendix II to Compliance Certificate





APPENDIX III


(GAAP Reconciliation)


[see attached]


Appendix III to Compliance Certificate





APPENDIX IV


(MD&A)


[see attached]


Appendix IV to Compliance Certificate






EXHIBIT E


ASSIGNMENT AND ASSUMPTION


          This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between
[the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”)
and [the][each]2 Assignee identified in item 2 below ([the][each,
an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several
and not joint.]4 Capitalized terms used but not defined herein shall
have the meanings given to them in the Amended and Restated Credit Agreement
identified below (the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by [each, the] Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if set
forth herein in full. 


          For an
agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns
to [the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from [the Assignor][the respective
Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the
respective Assignors’] rights and obligations in [its capacity as a
Lender][their respective capacities as Lenders] under the Credit Agreement and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including, without
limitation, participations in L/C Obligations and Swing Line Loans included in
such facilities5) and (ii) to the extent permitted to be assigned
under applicable Law, all claims, suits, causes of action and any other right
of [the Assignor (in its capacity as a Lender)][the respective Assignors (in
their respective capacities as Lenders)] against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims 


	
  

 
	

 


 


          1  For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language. 



          2 For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single Assignee,
choose the first bracketed language. If the assignment is to multiple
Assignees, choose the second bracketed language. 



          3 Select as appropriate. 



          4 Include bracketed language if there are either
multiple Assignors or multiple Assignees. 



          5 Include all applicable subfacilities, if any.





and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as
[the][an] “Assigned Interest”). Each such sale and assignment is without
recourse to
[the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor. 


	
  

 	
  

 	
  

 	
  

 
	
 1.

 	
 Assignor[s]:
 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 2.

 	
 Assignee[s]:
 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 3.

 	
 Borrower:

 	
 Foot Locker,
 Inc., a New York corporation 

 
	
  

 	
  

 	
  

 
	
 4.

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

 
	
  

 	
  

 	
  

 
	
 5.

 	
 Credit Agreement: Amended and Restated
 Credit Agreement dated as of January 27, 2012 (as such may be amended,
 restated, amended and restated, supplemented or otherwise modified and in
 effect from time to time, the “Credit Agreement”) by, among others,
 the Borrower, the Guarantors party thereto, the Lenders party thereto, Bank
 of America, N.A., as Administrative Agent, Collateral Agent, Swing Line
 Lender and L/C Issuer. 

 
	
  

 	
  

 
	
 6.

 	
 Assigned
 Interest[s]:

 




	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Assignor[s]6

 	
  

 	
 Assignee[s]7

 	
  

 	
 Aggregate

 Amount of

 Commitment/Loans

 for all Lenders8

 	
  

 	
 Amount of

 Commitment

 /Loans

 Assigned9

 	
  

 	
 Percentage

 Assigned of

 Commitment/

 Loans10

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
 $___________

 	
  

 	
 $___________

 	
  

 	
 ___________%

 
	
  

 	
  

 	
  

 	
  

 	
 $___________

 	
  

 	
 $___________

 	
  

 	
 ___________%

 






	
  

 	
  

 	
  

 	
  

 
	
 [7.

 	
 Trade Date:  

 	
 __________________]11

 	
  

 







	
  

 
	

 


 


          6
List each Assignor, as appropriate. 


          7
List each Assignee,
as appropriate. 


          8
Amounts in this column and in the column immediately to the right to be
adjusted by the counterparties to take into account any payments or prepayments
made between the Trade Date and the Effective Date. 


          9 Subject to minimum amount requirements
pursuant to Section 10.06(b)(i) of the Credit Agreement and to the
proportionate amount requirements pursuant to Section 10.06(b)(ii) of the
Credit Agreement. 


          10
Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder. 


          11
To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date. 






          Effective
Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE DATE OF DELIVERY OF THIS ASSIGNMENT AND ASSUMPTION FOR
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] 


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


	
  

 	
  

 	
  

 
	
  

 	
 ASSIGNOR

 
	
  

 	
 [NAME OF
 ASSIGNOR]

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
 ASSIGNEE

 
	
  

 	
 [NAME OF
 ASSIGNEE]

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 



[Consented to
and]12 Accepted: 


BANK OF
AMERICA, N.A., as 

[Administrative Agent] 


	
  

 	
  

 	
  

 
	
 By: 

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
 Name: 

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
 Title:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 
	
 [Consented
 to:]13

 	
  

 
	
  

 	
  

 	
  

 
	
 FOOT LOCKER,
 INC., as Borrower

 	
  

 
	
  

 	
  

 	
  

 






	
  

 	
  

 	
  

 
	
 By: 

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
 Name: 

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
 Title:

 	
  

 	
  

 
	
  

 	

 


 	
  

 




	
  

 
	

 


 


          12 To the extent that the Administrative Agent’s
consent is required under Sections 10.06(b)(i)(B) and 10.06(b)(iii)(B) of the
Credit Agreement. 


          13
To the extent
required under Sections 10.06(b)(i)(B) and 10.06(b)(iii)(A) of the Credit
Agreement. 





ANNEX 1 TO
ASSIGNMENT AND ASSUMPTION


          Reference
is made to the Amended and Restated Credit Agreement dated as of January 27,
2012 (as such may be amended, restated, amended and restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”) by,
among others, Foot Locker, Inc., a New York corporation, as Borrower (the
“Borrower”), the Guarantors party thereto, the Lenders party thereto, Bank of
America, N.A., as Administrative Agent, Collateral Agent, Swing Line Lender and
L/C Issuer. 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


                    1.
Representations and Warranties. 


                    1.1. Assignor.
[The][Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such]
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 Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Loan Parties or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by the Loan Parties or any other Person of any of their respective
obligations under any Loan Document. 


                    1.2. Assignee.
[The][Each] 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 Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all the
requirements to be an Eligible Assignee under the Credit Agreement (subject to
such consents, if any, as may be required under Section 10.06(b) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it,
or the Person exercising discretion in making its decision to acquire
[the][such] Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase [the][such] Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent, Collateral Agent, or any other Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, and (vii) 





attached hereto is any documentation required to be delivered by it
pursuant to the terms of Section 3.01(e) the Credit Agreement, duly completed
and executed by [the][such] Assignee; and (b) agrees that (i) it will,
independently and without reliance upon the Administrative Agent, the
Collateral Agent, [the][any] Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender. 


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


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


                    4. Fees.
This Assignment and Assumption shall be delivered to the Administrative Agent
with a processing and recordation fee of $3,500. 






EXHIBIT F


	
 

	
 

	
 

	
 


	
 

	
Date

	
____________

	
 


	
E-MAIL TO: William Keenan at
william.keenan@baml.com

	
Certificate #

	
____________

	
 








	
 


	
Foot Locker, Inc.

Borrowing Base and Availability Calculation


	











	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Foot Locker

	
 

	
Lady Foot

Locker

	
 

	
Kids Foot

Locker

	
 

	
Footaction

	
 

	
Champs

	
 

	
 

	
Total

	
 


	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	

 



	
Beg. Inventory as of :

	
 

	
11/27/2011

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
ADD

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Purchases

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
WOC Charges

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
DC Cap

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
Freight

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
Div. Ships

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
Misc. disp. 

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
LESS

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Cost of Sales

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
Total Adds/ (Reductions)

	
 

	
 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	




	




	




	




	




	




	




	




	




	
 

	




	




	
 


	
Ending Inventory as of:

	
 

	
12/31/2011

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 — 

	
 

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
LESS

	
 

	
12/31/2011

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Shrink

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
Consignment Inventory

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
Damaged/RTV

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Eligible Inventory as of :

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Appraised Value as of 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
NOLV

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
79.1%

	
 


	
LTV

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
85.0%

	
 


	
Advance Rate @

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
67.2%

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Total Inventory
Borrowing Base

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
 (a)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	

 



	
Eligible Credit Card Receivables

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
Credit Card Advance Rate

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
90.0%

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Credit Card
Receivables Borrowing Base

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
 (b)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	

 




	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Less Availability Reserves

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
Rent Reserve: (2 months for PA, VA and WA)

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
Rent Reserve: (NYC HQ, Milw Data
Center)

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
50% Gift Cards 

	
 

	
 — 

	
 

	
 

	
 

	
@

	
50%

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	




	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
100% Customer Deposits 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
Total
Reserves 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
 (c)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Total Uncapped Borrowing Base:
(a+b+c) 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 — 

	
(d)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Total Borrowing
Base: Lesser of (d) or $200MM

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
 (e)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	




	

 



	
Availability
Calculation

	
 

	
1/25/2012

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Beginning Principal Balance

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
ADD:

	
 

	
 

	
 

	
Prior days advance 

	
 

	
$

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
 

	
 

	
ADD:

	
 

	
 

	
 

	
Fees charged today 

	
 

	
$

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
 

	
 

	
ADD:

	
 

	
 

	
 

	
LC’S CHARGED 

	
 

	
$

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
 

	
 

	
LESS:

	
 

	
 

	
 

	
Prior day’s paydown 

	
 

	
$

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Ending principal balance

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
(f)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
 

	
 

	
ADD:

	
 

	
 

	
 

	
Standby Letters of Credit 

	
 

	
$

	
 — 

	
(g)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
 

	
 

	
ADD:

	
 

	
 

	
 

	
Documentary Letters of
Credit 

	
 

	
$

	
 — 

	
(h)


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Total loan balance prior to
request (f+g+h) 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
 (i) 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Net availability prior to
today’s request (e-i) 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
 (j) 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
ADVANCE REQUEST

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
(k) 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
 

	
 

	
Paydown

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
 (l) 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 


	
Net availability after today’s
request (j+k-l)) 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
$

	
 — 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	




	




	
 








The undersigned represents and
warrants that (A) the information set forth above (i) is complete and correct
in all material respects, (ii) has been prepared in accordance with the
requirements of that certain Amended and Restated Credit Agreement dated
January 27, 2012 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by, among
others, Foot Locker, Inc., as Borrower, the Guarantors party thereto, the
Lenders party thereto, and Bank of America, N.A., as Administrative Agent (in
such capacity, the “Administrative Agent”) and Collateral Agent, and (iii) is
based on supporting documentation that is satisfactory to the Administrative
Agent, and (B) no Default or Event of Default (as such terms are defined in the
Credit Agreement) has occurred and is continuing.


	
 

	
 

	
 


	
 

	
Authorized Signer

	
















EXHIBIT G


Form of Collateral Access Agreement


	
  

 
	

 


 
	
  

 
	
 COLLATERAL ACCESS AGREEMENT 

 
	
  

 
	

 


 


_________________, 20__ 


          For good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ________________, a
_____________ (the “Landlord”), executes this waiver in favor of BANK OF AMERICA, N.A., as collateral agent
(in such capacity, the “Collateral Agent”) for its own benefit and the
benefit of certain other lenders (the “Lenders”) which are making loans
or furnishing other financial accommodations to [Foot Locker, Inc., a
corporation organized and existing under the laws of the State of New York]
(the “Tenant”)1 pursuant to (i) that certain Amended and
Restated Credit Agreement dated as of January 27, 2012 (as amended, restated,
amended and restated, supplemented or otherwise modified and in effect from
time to time, the “Credit Agreement”) by, among others, the Tenant,
certain of the Tenant’s affiliates, the Lenders and the Collateral Agent, and
(ii) the other “Loan Documents” (as such term is defined in the Credit
Agreement). 


WITNESSETH:


          WHEREAS,
the Landlord owns real property located at ___________________ (collectively,
the “Leased Premises”), which real property the Landlord leases to the
Tenant pursuant to that certain [Lease Agreement] dated as of [___________] (as
amended and in effect as of the date hereof, the “Lease”). 


          WHEREAS,
the Tenant has entered into certain loan arrangements with the Collateral Agent
and the Lenders, pursuant to which the Collateral Agent and the Lenders have
agreed to make loans or furnish other financial accommodations to the Tenant. 


          WHEREAS,
loans and financial accommodations under the loan arrangement will be secured
by, among other things, certain of the Tenant’s present and after acquired
assets, including, without limitation, the Tenant’s inventory and books and
records located, and to be located, upon the Leased Premises (the “Collateral”).



	
  

 	
  

 
	
  

 	

 


 


          1
The identity of the Tenant
should be changed to the appropriate Loan Party as necessary.





          WHEREAS, in
order to induce the Collateral Agent and the Lenders to make loans or furnish
other financial accommodations to the Tenant, the Landlord hereby represents,
warrants, covenants and agrees as follows: 


	
  

 	
  

 
	
 1.

 	
 To the best of the Landlord’s knowledge, the Tenant is not in default
 under the terms of the Lease. 

 
	
  

 	
  

 
	
 2.

 	
 The Landlord hereby waives and releases in favor of the Collateral
 Agent and the Lenders: (a) any and all rights of distraint, levy, and
 execution which the Landlord may now or hereafter have against the
 Collateral; (b) any and all statutory liens, security interests, or other
 liens which the Landlord may now or hereafter have in the Collateral; and (c)
 any and all other interests or claims of every nature whatsoever which the
 Landlord may now or hereafter have in or against the Collateral for any rent,
 storage charges, or other sums due, or to become due, to the Landlord by the
 Tenant. The Landlord agrees not to exercise any of the Landlord’s rights,
 remedies, powers, privileges, or discretions with respect to the Collateral,
 or the Landlord’s liens or security interests in the Collateral, unless and
 until the Landlord receives written notice from an officer of the Collateral
 Agent that the Tenant’s obligations to the Collateral Agent and the Lenders
 have been paid in full, and that the commitment of the Collateral Agent and
 the Lenders to make loans or furnish other financial accommodations to the
 Tenant has been terminated. The foregoing waiver is for the benefit of the
 Collateral Agent and the Lenders only and does not affect the obligations of
 the Tenant to the Landlord. 

 
	
  

 	
  

 
	
 3.

 	
 In the event of the exercise by the Collateral Agent of its rights
 upon default with respect to the Collateral, the Collateral Agent shall have
 a reasonable time (but in any event not to exceed one hundred and twenty
 (120) days) in which to repossess and/or dispose of the Collateral from the
 Leased Premises; provided, however, that such period will be
 tolled during any period in which the Collateral Agent has been stayed from
 taking action to remove the Collateral in any bankruptcy, insolvency or
 similar proceeding, and the Collateral Agent shall have an additional period
 of time thereafter in which to repossess and/or dispose of the Collateral
 from the Leased Premises. In those circumstances, the Landlord will, upon
 reasonable prior written notice from the Collateral Agent, (a) refrain from
 hindering the Collateral Agent’s actions in gaining access to the Leased
 Premises for the purpose of repossessing said Collateral and (b) if requested
 by the Collateral Agent, permit the Collateral Agent, or its agents or
 nominees, to dispose of the Collateral on the Leased Premises in a manner
 reasonably designed to minimize any interference with any of the Landlord’s
 other tenants at the Leased Premises. The Collateral Agent shall promptly
 restore and repair, at the Collateral Agent’s cost and expense, any physical
 damage to the Leased Premises resulting from any action taken by the
 Collateral Agent or its agents and employees upon the Leased Premises, but
 shall not be liable for any diminution in value of the Leased Premises caused
 by the removal or absence of the Collateral. 

 













	
  

 	
  

 
	
 4.

 	
 To the extent not paid or prepaid by the Tenant, the Collateral Agent
 shall pay the Landlord a sum for its use and occupancy of the Leased Premises
 on a per diem basis in an amount equal to the monthly base rent required to
 be paid by the Tenant under the lease between the Landlord and the Tenant
 from the date on which the Collateral Agent shall have taken possession of
 the Collateral on the Leased Premises until the date on which the Collateral
 Agent vacates the Leased Premises, it
 being understood, however, that the Collateral Agent shall not, thereby,
 have assumed any of the obligations of the Tenant to the Landlord, including,
 without limitation, any obligation to pay any past due rent owing by the
 Tenant. 

 
	
  

 	
  

 
	
 5.

 	
 Prior to the Landlord’s terminating its lease with the Tenant or
 evicting the Tenant from the Leased Premises for breach of the lease, the
 Landlord shall give the Collateral Agent not less than thirty (30) days’
 written notice of such action at the address set forth below, and a
 reasonable opportunity to preserve, protect, liquidate, or remove any
 Collateral on the Leased Premises and, if the Collateral Agent so elects, to
 cure such breach of the lease. Notwithstanding the provisions of this
 paragraph, the Collateral Agent shall have no obligation to cure any such
 breach or default. The cure of any such breach or default by the Collateral
 Agent on any one occasion shall not obligate the Collateral Agent to cure any
 other breach or default or to cure such default on any other occasion. 

 
	
  

 	
  

 
	
 6.

 	
 All notices under this waiver shall be made to the following
 addresses by recognized overnight courier, by hand delivery or by facsimile
 transmission: 

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 If to the
 Collateral Agent:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Bank of
 America, N.A.

 100 Federal Street, 9th Floor

 Boston, Massachusetts 02110

 Attention: Christine Hutchinson

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 If to the
 Landlord:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	

 


 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Attention:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 






	
  

 	
  

 
	
 7.

 	
 This waiver
 shall inure to the benefit of the Collateral Agent and each of the Lenders,
 and their respective successors and assigns, and shall be binding upon the
 Landlord, its heirs, assigns, representatives, and successors. 

 













	
  

 	
  

 
	
 8.

 	
 This waiver
 may not be amended or waived except by an instrument in writing signed by the
 Collateral Agent, the Landlord, and the Tenant. This waiver shall be governed
 by, and construed in accordance with, the laws of the State of New York.
 Delivery of an executed signature page of this waiver by facsimile
 transmission shall be binding on the Landlord as if the original of such
 facsimile had been delivered to the Collateral Agent. 

 


[signature page follows]





          Dated as of
the date above first written. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LANDLORD: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 









EXHIBIT H


FORM OF CREDIT CARD NOTIFICATION


CREDIT CARD NOTIFICATION


PREPARE ON BORROWER/LOAN PARTY LETTERHEAD -
ONE FOR EACH PROCESSOR 


January ____, 2012


	
  

 	
  

 
	
 To:

 	
 [Name and
 Address of Credit Card Processor] 

 (the “Processor”) 

 






	
  

 	
  

 	
  

 
	
  

 	
 Re:

 	
 Foot Locker,
 Inc. 

 Merchant Account Number: ____________________

 


Dear Sir/Madam: 


          FOOT
LOCKER, INC., a New York corporation (the “Borrower”), has entered into various
financing agreements with BANK OF AMERICA, N.A., a national banking association
with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as
collateral agent (in such capacity, the “Collateral Agent”) for its own benefit
and the benefit of certain other credit parties (the “Credit Parties”),
pursuant to which the Collateral Agent and the other Credit Parties may from
time to time make loans or furnish certain other financial accommodations to the
Borrower. The Borrower’s obligations on account of such loans and financial
accommodations are secured by, among other things, all credit card charges
submitted by the Borrower to the Processor for processing and the amounts which
the Processor owes to the Borrower on account thereof (the “Credit Card
Proceeds”). 


          Until the
Processor receives written notification from the Collateral Agent that the
interest of the Collateral Agent and the other Credit Parties in the Credit
Card Proceeds has been terminated, all amounts as may become due from time to
time from the Processor to the Borrower (including, without limitation, Credit
Card Proceeds, payments from any reserve account or the like, or other
payments) shall be transferred only as follows: 


          (a) By ACH, Depository Transfer Check,
or Electronic Depository Transfer to: 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 JPMorgan
 Chase Bank, N.A. 

 ABA #021000021 

 Account Name: Foot Locker, Inc. 

 Account No.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 or

 	
  

 













	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 As the Processor may be otherwise instructed from time to time in
 writing by an officer of the Collateral Agent. 

 


          Upon the
written request of the Collateral Agent, a copy of each periodic statement
issued by the Processor to the Borrower should be provided to the Collateral
Agent at the following address (which address may be changed upon seven (7)
days’ written notice given to the Processor by the Collateral Agent): 


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Bank of
 America, N.A. 

 100 Federal Street, 9th Floor 

 Boston, Massachusetts 02110 

 Attention: Christine Hutchinson 

 Re: Foot Locker, Inc. 

 


          The
Processor shall be fully protected in acting on any order or direction by the
Collateral Agent respecting the Credit Card Proceeds and other amounts without
making any inquiry whatsoever as to the Collateral Agent’s right or authority
to give such order or direction or as to the application of any payment made
pursuant thereto. Nothing contained herein is intended to, nor shall it be
deemed to, modify the rights and obligations of the Borrower and the Collateral
Agent under the terms of the loan arrangement and the loan documents executed
in connection therewith between, among others, the Borrower and the Collateral
Agent. 



          This Credit
Card Notification may be amended only by the written
agreement of the Processor, the Borrower and the Collateral Agent and may be
terminated solely by written notice signed by an officer of the Collateral
Agent. The Borrower shall not have any right to terminate this Credit Card
Notification or, except as provided in this Credit Card Notification, amend it.



	
  

 	
  

 	
  

 
	
  

 	
 Very truly
 yours,

 
	
  

 	
  

 	
  

 
	
  

 	
 FOOT LOCKER,
 INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title: 

 	
  

 
	
  

 	
  

 	

 


 


 


	
  

 	
  

 	
  

 
	
  

 	
 cc:

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

 










EXHIBIT I


Form of Joinder Agreement


JOINDER AGREEMENT


          This
JOINDER AGREEMENT (this “Joinder”) is made as of _________________, by
and among:


	
  

 	
  

 
	
  

 	
           _________________________,
 a _________________________ (the “New [Borrower/Guarantor]”), with its
 principal executive offices at ________________________; and

 
	
  

 	
  

 
	
  

 	
           BANK
 OF AMERICA, N.A., a national banking association
 with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110,
 as administrative agent (in such capacity, the “Administrative Agent”)
 for its own benefit and the benefit of the other Lenders; and

 
	
  

 	
  

 
	
  

 	
           BANK
 OF AMERICA, N.A., a national banking association
 with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110,
 as collateral agent (in such capacity, the “Collateral Agent”) for its
 own benefit and the benefit of the other Credit Parties;

 



          in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.


W I T N E S S E T H :


          A. Reference
is made to that certain Amended and Restated Credit Agreement, dated as of
January 27, 2012 (as amended, restated, amended and restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”)
by, among others, (i) Foot Locker, Inc., a New York corporation (the “Existing
Borrower”), (ii) the Guarantors from time to time party thereto (the “Existing
Guarantors”), (iii) the Lenders from time to time party thereto, and (iv)
Bank of America, N.A., as Administrative Agent, Collateral Agent, L/C Issuer,
and Swing Line Lender. Capitalized terms used but not defined herein shall have
the meanings set forth in the Credit Agreement. 


          B. The New
[Borrower/Guarantor] desires to become a party to, and be bound by the terms of,
the Credit Agreement and the other Loan Documents in the same capacity and to
the same extent as the Existing [Borrower/Guarantors] thereunder.






          C. Pursuant
to the terms of the Credit Agreement, in order for the New [Borrower/Guarantor]
to become party to the Credit Agreement and the other Loan Documents as
provided herein, the New [Borrower/Guarantor] and the Existing Borrower and
Existing Guarantors are required to execute this Joinder.


          NOW,
THEREFORE, in consideration of the premises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:


	
  

 	
  

 	
  

 
	
 1.

 	
 Joinder and Assumption of Obligations.
 Effective as of the date of this Joinder, the New [Borrower/Guarantor] hereby
 acknowledges that the New [Borrower/Guarantor] has received and reviewed a
 copy of the Credit Agreement and the other Loan Documents, and hereby:

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 joins in the execution of, and becomes a party to, the Credit
 Agreement, the Security Agreement[, the Facility Guaranty] and the other Loan
 Documents as a [Borrower/Guarantor] thereunder, as indicated with its
 signature below;

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 covenants and agrees to be bound by all covenants, agreements,
 liabilities and acknowledgments of a [Borrower/Guarantor] under the Credit
 Agreement, the Security Agreement[, the Facility Guaranty] and the other Loan
 Documents as of the date hereof (other than covenants, agreements,
 liabilities and acknowledgments that relate solely to an earlier date), in
 each case, with the same force and effect as if such New [Borrower/Guarantor]
 was a signatory to the Credit Agreement[, the Facility Guaranty] and the
 other Loan Documents and was expressly named as a [Borrower/Guarantor] (and,
 in the case of the Security Agreement, a Pledgor) therein; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 makes all representations, warranties, and other statements of a
 Borrower/Guarantor] under the Credit Agreement, the Security Agreement[, the
 Facility Guaranty] and the other Loan Documents, as of the date hereof (other
 than representations, warranties and other statements that relate solely to
 an earlier date), in each case, with the same force and effect as if such New
 [Borrower/Guarantor] was a signatory to the Credit Agreement, the Security
 Agreement[, the Facility Guaranty] and the other Loan Documents and was
 expressly named as a [Borrower/Guarantor] (and, in the case of the Security
 Agreement, a Pledgor) therein; and

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 assumes and agrees to perform all applicable duties and obligations
 of the Existing [Borrower/Guarantors] under the Credit Agreement, the
 Security Agreement[, the Facility Guaranty] and the other Loan Documents.

 













	
  

 	
  

 	
  

 
	
 2.

 	
 Grant of Security Interest. Without limiting
 the generality of Section 1 hereof, the New [Borrower/Guarantor] hereby
 grants and pledges to the Collateral Agent, as collateral security for the
 full, prompt and complete payment and performance when due (whether at stated
 maturity, by acceleration or otherwise) of the Obligations, a Lien on and security
 interest in, all of its right, title and interest in, to and under the
 Pledged Collateral (as defined in the Security Agreement) and expressly
 assumes all obligations and liabilities of a [Borrower/Guarantor] and
 “Pledgor” thereunder. The New [Borrower/Guarantor] hereby authorizes the
 Collateral Agent to file financing statements describing the Pledged
 Collateral (as defined in the Security Agreement).

 
	
  

 	
  

 	
  

 
	
 3.

 	
 [Guaranty. Without limiting the generality of Section 1
 hereof, the New Guarantor (i) joins in the execution of, and becomes a party
 to, the Facility Guaranty, (ii) irrevocably and unconditionally guarantees
 the due and punctual payment when due (whether by stated maturity, by
 acceleration or otherwise) and performance by the Borrower of all Obligations,
 (iii) acknowledges and agrees that the New Guarantor is jointly and severally
 liable for all Obligations, and (iv) agrees that the New Guarantor shall, for
 all purposes, be deemed to be a “Guarantor”, jointly and severally with all
 other Guarantors under the Facility Guaranty.]1

 
	
  

 	
  

 	
  

 
	
 4.

 	
 Supplemental Schedules. To the extent that
 any representations, warranties, and covenants of the New
 [Borrower/Guarantor] require any amendments to the schedules to the Credit
 Agreement, the Security Agreement or any of the other Loan Documents, such
 schedules are hereby updated, as evidenced by any supplemental schedules (if
 any) annexed to this Joinder.

 
	
  

 	
  

 	
  

 
	
 5.

 	
 Conditions Precedent to Effectiveness. This
 Joinder shall not be effective until each of the following conditions
 precedent has been fulfilled to the reasonable satisfaction of the
 Administrative Agent:

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 This Joinder shall have been duly executed and delivered by the
 respective parties hereto, and shall be in full force and effect.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 All action on the part of the New [Borrower/Guarantor] necessary for
 the valid execution, delivery and performance by the New [Borrower/Guarantor]
 of this Joinder and all other documentation, instruments, and agreements to
 be executed in connection herewith shall have been duly and effectively taken
 and evidence 

 






	
  

 	
  

 	
  

 
	

 


 	
  

 
	
  

 	
  

 	
  

 
	
 1

 	
 To be
 included with respect to joinder of New Guarantors only.

 













	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 thereof reasonably satisfactory to the Administrative Agent shall
 have been provided to the Administrative Agent.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 The New [Borrower/Guarantor] shall each have delivered the following
 to the Administrative Agent, in form and substance reasonably satisfactory to
 the Administrative Agent:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i)

 	
 Copies of the New [Borrower’s/Guarantor’s] Organization Documents and such
 other documents and certifications as the Administrative Agent may reasonably
 require to evidence that the New [Borrower/Guarantor] is duly organized or
 formed.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

 	
 Certificates of resolutions or other action, incumbency certificates
 and/or other certificates of Responsible Officers of the New
 [Borrower/Guarantor] evidencing (A) the authority of the New
 [Borrower/Guarantor] to enter into this Joinder and the other Loan Documents
 to which New [Borrower/Guarantor] is a party or is to be a party and (B) the
 identity, authority and capacity of each Responsible Officer thereof
 authorized to act as a Responsible Officer in connection with this Joinder
 and the other Loan Documents to which New [Borrower/Guarantor] is a party or
 is to be a party.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iii)

 	
 Certificate of Legal Existence and Good Standing issued by the
 Secretary of the State of the New [Borrower’s/Guarantor’s] incorporation or
 organization.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iv)

 	
 Certificates of Foreign Qualification, or similar certification
 evidencing the New [Borrower’s/Guarantor’s] qualification to engage in
 business, in either case issued by the Secretary of State of each
 jurisdiction where the New [Borrower’s/Guarantor’s] ownership, lease or
 operation of properties or the conduct of its business requires such
 qualification, except to the extent that failure to so qualify in such
 jurisdiction could not reasonably be expected to have a Material Adverse
 Effect.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (v)

 	
 A Due
 Diligence Certificate.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (vi)

 	
 [Joinders to
 the Notes, as applicable].

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (vii)

 	
 [Joinders to
 the Fee Letter].

 













	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 Upon the request of the Administrative Agent in its sole discretion,
 the Administrative Agent shall have received a written legal opinion of the
 New [Borrower’s/Guarantor’s] counsel, addressed to the Administrative Agent,
 the Collateral Agent, the Lenders and the L/C Issuer, covering such matters
 relating to the New [Borrower/Guarantor], the Loan Documents and/or the
 transactions contemplated thereby as the Administrative Agent may reasonably
 request in accordance with Section 6.12 of the Credit Agreement.

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 To the extent required by the Loan Documents, the Collateral Agent
 shall have received all documents and instruments, including UCC financing
 statements and Blocked Account Agreements, required by applicable Law or
 reasonably requested by the Administrative Agent or the Collateral Agent to
 create or perfect the Lien intended to be created under the Security
 Documents and all such documents and instruments shall have been so filed,
 registered or recorded to the satisfaction of the Administrative Agent.

 
	
  

 	
  

 	
  

 
	
  

 	
 (f)

 	
 The New [Borrower/Guarantor] shall have paid in full all reasonable
 fees and expenses incurred by the Agents (including, without limitation, the
 reasonable fees and expenses of counsel to the Agents) in connection with the
 preparation, negotiation, execution and delivery of this Joinder and related
 documents.

 
	
  

 	
  

 	
  

 
	
 6.

 	
 Miscellaneous. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 This Joinder may be executed in several counterparts and by each
 party on a separate counterpart, each of which when so executed and delivered
 shall be an original, and all of which together shall constitute one
 instrument.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 This Joinder and the other Loan Documents and instruments referred to
 herein express the entire understanding of the parties with respect to the
 transactions contemplated hereby. No prior negotiations or discussions shall
 limit, modify, or otherwise affect the provisions hereof.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Any determination that any provision of this Joinder or any
 application hereof is invalid, illegal or unenforceable in any respect and in
 any instance shall not affect the validity, legality, or enforceability of
 such provision in any other instance, or the validity, legality or
 enforceability of any other provisions of this Joinder.

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 The New [Borrower/Guarantor] warrants and represents that the New
 [Borrower/Guarantor] is not relying on any representations or warranties of
 the Administrative Agent, the Collateral Agent or the other Credit Parties or
 their counsel in entering into this Joinder.

 













	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 THIS JOINDER
 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
 OF NEW YORK (EXCEPT FOR THE CONFLICT OF LAWS RULES THEREOF, BUT INCLUDING
 GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402).

 


 [SIGNATURE PAGES FOLLOW]






          IN WITNESS
WHEREOF, each of the undersigned has caused this Joinder to be duly executed
and delivered by its proper and duly authorized officer as of the date set
forth below.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 NEW
 [BORROWER/GUARANTOR]:

 
	
  

 	
  

 	
  

 
	
  

 	
 [_______________________________]

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 ADMINISTRATIVE
 AGENT:

 
	
  

 	
  

 	
  

 
	
  

 	
 BANK OF AMERICA, N.A.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 COLLATERAL
 AGENT:

 
	
  

 	
  

 	
  

 
	
  

 	
 BANK OF
 AMERICA, N.A.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 



Signature Page to Joinder Agreement






Supplemental Schedules to Loan Documents


[see attached]


Joinder Agreement