Exhibit
10.31


 


 






CREDIT AGREEMENT


DATED AS
OF SEPTEMBER 30, 2005


AMONG


AMERIPRISE
FINANCIAL, INC.,

as Borrower,


THE
LENDERS LISTED HEREIN,

as Lenders,


WELLS
FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,


CITIBANK,
N.A.,

as Syndication Agent


and


BANK OF AMERICA, N.A.,


HSBC BANK USA, NATIONAL ASSOCIATION


and


WACHOVIA BANK, NATIONAL ASSOCIATION,


as
Co-Documentation Agents


______________________________


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION

and


CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arrangers and Joint Bookrunners


 


 


 

















 


TABLE OF
CONTENTS


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
   

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Certain Defined Terms.

  	
  1

  
	
  1.2

  	
   

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

  	
  21

  
	
  1.3

  	
   

  	
  Other Definitional Provisions and Rules of Construction.

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  AMOUNTS AND TERMS OF LOANS

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

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

  	
  22

  
	
  2.2

  	
   

  	
  Interest on the Loans.

  	
  31

  
	
  2.3

  	
   

  	
  Fees.

  	
  34

  
	
  2.4

  	
   

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

  	
  35

  
	
  2.5

  	
   

  	
  Use of Proceeds.

  	
  38

  
	
  2.6

  	
   

  	
  Special Provisions Governing Eurodollar Rate Loans.

  	
  38

  
	
  2.7

  	
   

  	
  Increased Costs; Taxes; Capital Adequacy.

  	
  40

  
	
  2.8

  	
   

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

  	
  44

  
	
  2.9

  	
   

  	
  Replacement of a Lender.

  	
  45

  
	
  2.10

  	
   

  	
  Increase in Commitments.

  	
  46

  
	
  2.11

  	
   

  	
  Extension of Revolving Loan Commitment Termination Date.

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
   

  	
  LETTERS OF CREDIT

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

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

  	
  47

  
	
  3.2

  	
   

  	
  Letter of Credit Fees.

  	
  50

  
	
  3.3

  	
   

  	
  Drawings and
  Reimbursement of Amounts Paid Under Letters of Credit.

  	
  50

  
	
  3.4

  	
   

  	
  Obligations Absolute.

  	
  53

  
	
  3.5

  	
   

  	
  Nature of Issuing Lenders’ Duties.

  	
  54

  
	
  3.6

  	
   

  	
  Applicability of UCP.

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
   

  	
  CONDITIONS TO LOANS AND LETTERS OF CREDIT

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Conditions to Closing.

  	
  55

  
	
  4.2

  	
   

  	
  Conditions to Effective Date; All Loans.

  	
  57

  
	
  4.3

  	
   

  	
  Conditions to Letters of Credit.

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
   

  	
  COMPANY’S REPRESENTATIONS AND WARRANTIES

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

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

  	
  59

  
	
  5.2

  	
   

  	
  Authorization of Borrowing, etc.

  	
  59

  



 


i

















 


	
  5.3

  	
   

  	
  Financial Condition.

  	
  60

  
	
  5.4

  	
   

  	
  No Material Adverse Change.

  	
  60

  
	
  5.5

  	
   

  	
  Title to Properties; Liens.

  	
  60

  
	
  5.6

  	
   

  	
  Litigation; Adverse Facts.

  	
  61

  
	
  5.7

  	
   

  	
  Payment of Taxes.

  	
  61

  
	
  5.8

  	
   

  	
  Governmental Regulation.

  	
  61

  
	
  5.9

  	
   

  	
  Securities Activities.

  	
  61

  
	
  5.10

  	
   

  	
  Employee Benefit Plans.

  	
  61

  
	
  5.11

  	
   

  	
  Environmental Protection.

  	
  62

  
	
  5.12

  	
   

  	
  Solvency.

  	
  62

  
	
  5.13

  	
   

  	
  Disclosure.

  	
  62

  
	
  5.14

  	
   

  	
  Foreign Assets Control Regulations, etc.

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Financial Statements and Other Reports.

  	
  63

  
	
  6.2

  	
   

  	
  Existence, etc.

  	
  66

  
	
  6.3

  	
   

  	
  Payment of Taxes and Claims.

  	
  66

  
	
  6.4

  	
   

  	
  Maintenance of Properties; Insurance.

  	
  66

  
	
  6.5

  	
   

  	
  Inspection Rights.

  	
  66

  
	
  6.6

  	
   

  	
  Compliance with Laws, etc.

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
   

  	
  NEGATIVE COVENANTS

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Liens and Related Matters.

  	
  67

  
	
  7.2

  	
   

  	
  Acquisitions.

  	
  69

  
	
  7.3

  	
   

  	
  Restricted Junior Payments.

  	
  69

  
	
  7.4

  	
   

  	
  Financial Covenants.

  	
  69

  
	
  7.5

  	
   

  	
  Restriction on Fundamental Changes; Asset Sales.

  	
  70

  
	
  7.6

  	
   

  	
  Transactions with Affiliates.

  	
  70

  
	
  7.7

  	
   

  	
  Conduct of Business.

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
   

  	
  EVENTS OF DEFAULT

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Failure to Make Payments When Due.

  	
  71

  
	
  8.2

  	
   

  	
  Default in Other Agreements.

  	
  71

  
	
  8.3

  	
   

  	
  Breach of Certain Covenants.

  	
  71

  
	
  8.4

  	
   

  	
  Breach of Warranty.

  	
  71

  
	
  8.5

  	
   

  	
  Other Defaults Under Loan Documents.

  	
  72

  
	
  8.6

  	
   

  	
  Involuntary Bankruptcy; Appointment of Receiver, etc.

  	
  72

  
	
  8.7

  	
   

  	
  Voluntary Bankruptcy; Appointment of Receiver, etc.

  	
  72

  
	
  8.8

  	
   

  	
  Judgments and Attachments.

  	
  73

  
	
  8.9

  	
   

  	
  Dissolution.

  	
  73

  
	
  8.10

  	
   

  	
  Employee Benefit Plans.

  	
  73

  
	
  8.11

  	
   

  	
  Change in Control.

  	
  73

  
	
  8.12

  	
   

  	
  Licensing.

  	
  73

  
	
  8.13

  	
   

  	
  Certain Proceedings.

  	
  73

  



 


ii

















 


	
  8.14

  	
   

  	
  Invalidity of Loan Documents; Repudiation of Obligations.

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
   

  	
  ADMINISTRATIVE AGENT

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Appointment.

  	
  75

  
	
  9.2

  	
   

  	
  Powers and Duties; General Immunity.

  	
  75

  
	
  9.3

  	
   

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

  	
  77

  
	
  9.4

  	
   

  	
  Right to Indemnity.

  	
  77

  
	
  9.5

  	
   

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

  	
  77

  
	
  9.6

  	
   

  	
  Duties of Other Agents.

  	
  78

  
	
  9.7

  	
   

  	
  Administrative Agent May File Proofs of Claim.

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
   

  	
  MISCELLANEOUS

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

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

  	
  79

  
	
  10.2

  	
   

  	
  Expenses.

  	
  82

  
	
  10.3

  	
   

  	
  Indemnity.

  	
  83

  
	
  10.4

  	
   

  	
  Set-Off.

  	
  83

  
	
  10.5

  	
   

  	
  Ratable Sharing.

  	
  84

  
	
  10.6

  	
   

  	
  Amendments and Waivers.

  	
  85

  
	
  10.7

  	
   

  	
  Independence of Covenants.

  	
  86

  
	
  10.8

  	
   

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

  	
  86

  
	
  10.9

  	
   

  	
  Survival of Representations, Warranties and Agreements.

  	
  88

  
	
  10.10

  	
   

  	
  Failure or Indulgence Not Waiver; Remedies Cumulative.

  	
  88

  
	
  10.11

  	
   

  	
  Marshalling; Payments Set Aside.

  	
  88

  
	
  10.12

  	
   

  	
  Severability.

  	
  89

  
	
  10.13

  	
   

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

  	
  89

  
	
  10.14

  	
   

  	
  Applicable Law.

  	
  89

  
	
  10.15

  	
   

  	
  Construction of Agreement; Nature of Relationship.

  	
  90

  
	
  10.16

  	
   

  	
  Consent to Jurisdiction and Service of Process.

  	
  90

  
	
  10.17

  	
   

  	
  Waiver of Jury Trial.

  	
  90

  
	
  10.18

  	
   

  	
  Confidentiality.

  	
  91

  
	
  10.19

  	
   

  	
  Counterparts; Effectiveness.

  	
  92

  
	
  10.20

  	
   

  	
  USA Patriot Act.

  	
  92

  



 


iii

















 


EXHIBITS


	
   

  	
  I

  	
  FORM OF NOTICE OF
  REVOLVING BORROWING

  
	
   

  	
   

  	
   

  
	
   

  	
  IA

  	
  FORM OF BID REQUEST

  
	
   

  	
   

  	
   

  
	
   

  	
  IB

  	
  FORM OF COMPETITIVE BID

  
	
   

  	
   

  	
   

  
	
   

  	
  II

  	
  FORM OF NOTICE OF
  CONVERSION/CONTINUATION

  
	
   

  	
   

  	
   

  
	
   

  	
  III

  	
  FORM OF REQUEST FOR
  ISSUANCE

  
	
   

  	
   

  	
   

  
	
   

  	
  IV

  	
  FORM OF REVOLVING NOTE

  
	
   

  	
   

  	
   

  
	
   

  	
  V

  	
  FORM OF SWING LINE NOTE

  
	
   

  	
   

  	
   

  
	
   

  	
  VI

  	
  FORM OF COMPLIANCE
  CERTIFICATE

  
	
   

  	
   

  	
   

  
	
   

  	
  VII

  	
  FORM OF ASSIGNMENT
  AGREEMENT

  



 


 


iv

















 


 


SCHEDULES


1.1           SIGNIFICANT SUBSIDIARIES


2.1           LENDERS’ COMMITMENTS AND PRO RATA
SHARES


5.6           LITIGATION


7.1           CERTAIN EXISTING LIENS


10.8         NOTICE ADDRESSES


v

















 


AMERIPRISE FINANCIAL, INC.


CREDIT AGREEMENT


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


R E C I T A L S


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


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


Section 1.              DEFINITIONS


1.1             Certain Defined Terms.


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


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


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


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


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


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


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


 

















 


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


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


“Agreement” means this Credit Agreement.


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


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


	
  Pricing

  Level

  	
   

  	
  Debt Rating

  S&P/Moody’s

  	
   

  	
  Eurodollar

  Margin

  	
   

  	
  Facility

  Fee

  	
   

  	
  Utilization

  Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing
  Level I

  	
   

  	
  > A / A2

  	
   

  	
  0.24%

  	
   

  	
  0.06%

  	
   

  	
  0.05%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing
  Level II

  	
   

  	
  A-
  / A3

  	
   

  	
  0.28%

  	
   

  	
  0.07%

  	
   

  	
  0.05%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing
  Level III

  	
   

  	
  BBB+
  / Baa1

  	
   

  	
  0.31%

  	
   

  	
  0.09%

  	
   

  	
  0.10%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing
  Level IV

  	
   

  	
  BBB
  / Baa2

  	
   

  	
  0.375%

  	
   

  	
  0.125%

  	
   

  	
  0.125%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing
  Level V

  	
   

  	
  <
  BBB / Baa2

  	
   

  	
  0.45%

  	
   

  	
  0.175%

  	
   

  	
  0.125%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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


 


2

















 


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


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


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


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


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


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


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


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


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


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


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


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


 


3

















 


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


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


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


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


“Change in Control” means any of the following:


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


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


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


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


 


4

















 


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


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


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


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


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


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


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


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


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


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


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


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


 


5

















 


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


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


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


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


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


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


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


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


 


6

















 


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


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


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


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


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


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


 


7

















 


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


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


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


 


8

















 


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


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


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


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


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


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


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


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


 


9

















 


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


“Extension Request” is defined in subsection 2.11.


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


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


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


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


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


 


10

















 


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


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


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


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


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


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


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


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


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


 


11

















 


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


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


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


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


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


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


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


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


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


 


12

















 


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


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


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


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


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


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


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


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


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


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


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


 


13

















 


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


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


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


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


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


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


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


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


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


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


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


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


 


14

















 


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


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


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


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


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


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


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


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


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


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


 


15

















 


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


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


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


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


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


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


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


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


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


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


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


 


16

















 


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


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


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


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


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


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


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


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


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


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


 


17

















 


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


“Response Date” is defined in subsection 2.11.


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


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


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


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


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


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


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


 


18

















 


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


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


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


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


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


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


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


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


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


 


19

















 


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


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


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


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


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


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


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


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


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


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


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


 


 


20

















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


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


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


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


“UCP” is defined in subsection 3.6.


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


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


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


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


 


21

















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


1.3                               Other
Definitional Provisions and Rules of Construction.


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


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


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


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


Section 2.              AMOUNTS
AND TERMS OF LOANS


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


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


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


 


22

















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


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


(ii)           Swing Line Loans.


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


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


 


23

















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


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


 


24

















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


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


(iii)          Bid Loans.


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


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


 


25

















 


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


 


(c)           Submitting
Competitive Bids.


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


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


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


 


26

















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


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


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


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


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


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


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


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


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


 


27

















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


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


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


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


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


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


 


28

















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


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


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


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


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


 


29

















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


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


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


 


30

















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


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


2.2                               Interest
on the Loans.


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


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


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


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


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


 


31

















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


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


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


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


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


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


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


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


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


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


 


32

















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


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


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


Rate Revolving Loan; provided, however, that a Eurodollar Rate
Revolving Loan may only be converted into a Base Rate Loan on the expiration
date of an Interest Period applicable thereto.


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


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


 


33

















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


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


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


2.3                               Fees.


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


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


 


34

















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


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


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


A.            Prepayments and Reductions in
Revolving Loan Commitment Amount.


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


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


 


35

















 


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


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


(iv)          Application of
Prepayments.


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


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


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


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


B.            General Provisions Regarding
Payments.


(i)            Manner and Time
of Payment.  All payments by Company
of principal, interest, fees and other Obligations shall be made in Dollars in
same day funds, without defense, setoff or 

counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 2:00 P.M. (Minneapolis time) on the date
due at the Funding and Payment Office for the account of Lenders; funds
received by Administrative Agent after that time on such due date shall be
deemed to have been paid by Company on the next succeeding Business Day.


 


36

















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


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


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


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


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


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


 


37

















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


2.5                               Use
of Proceeds.


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


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


2.6                               Special
Provisions Governing Eurodollar Rate Loans.


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


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


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


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


 


38

















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


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


 


39

















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


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


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


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


2.7                               Increased
Costs; Taxes; Capital Adequacy.


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


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


 


40

















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


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


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


B.            Taxes.


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


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


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


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


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


 


 


41

















 


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


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


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


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


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


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


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


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


 


42

















 


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


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


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


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


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


 


43

















 


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


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


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


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


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


 


44

















 


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


2.9          Replacement
of a Lender.


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


 


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2.10        Increase
in Commitments.


A.            Request for Increase.  Provided
there exists no Potential Event of Default or Event of Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), Company may
from time to time request an increase in the Revolving Loan Commitment Amount
by an amount (for all such requests) not exceeding $250,000,000; provided that
(i) the Revolving Loan Commitment Amount may not exceed $1,000,000,000; and
provided further that any such request for an increase shall be in a minimum
amount of $25,000,000 and in multiples of $5,000,000 in excess thereof and (ii)
Company may not request more than two increases during any twelve month
period.  At the time of sending such
notice, Company (in consultation with the Administrative Agent) shall specify
the time period within which each Lender is requested to respond (which shall
in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).


B.            Lender Elections to Increase. 
Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to increase its Revolving Loan Commitment and,
if so, whether by an amount equal to, greater than, or less than its Pro Rata
Share of such requested increase.  Any
Lender not responding within such time period shall be deemed to have declined
to increase its Revolving Loan Commitment.


C.            Notification by Administrative Agent; Additional
Lenders.  The Administrative Agent shall notify Company
and each Lender of the Lenders’ responses to each request made hereunder.  If the Lenders do not agree to the full
amount of a requested increase, subject to the approval of the Administrative
Agent and the Issuing Lender (which approvals shall not be unreasonably
withheld or delayed), Company may also invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel.


D.            Effective Date and Allocations. 
If the Revolving Loan Commitment Amount is increased in accordance with
this Section, the Administrative Agent and Company shall determine the
effective date (the “Increase Effective Date”)
and the final allocation of such increase. 
The Administrative Agent shall promptly notify Company and the Lenders
of the final allocation of such increase, the Increase Effective Date and
revised Pro Rata Shares.


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


 


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


2.11        Extension
of Revolving Loan Commitment Termination Date.


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


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


Section 3.              LETTERS
OF CREDIT


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


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


 


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


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


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


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


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


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


B.            Mechanics of Issuance.


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


 


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


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


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


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


 


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


3.2          Letter
of Credit Fees.


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


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


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


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


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


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


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


 


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


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


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


 


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


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


D.            Interest on Amounts Paid Under
Letters of Credit.


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


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


 


52

















 


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


3.4          Obligations
Absolute.


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


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


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


(iii)          any draft or other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;


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


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


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


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


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


 


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


3.5          Nature
of Issuing Lenders’ Duties.


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


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


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


3.6          Applicability
of UCP.


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


 


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Section 4.              CONDITIONS
TO LOANS AND LETTERS OF CREDIT


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


4.1          Conditions
to Closing.


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


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


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


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


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


(iv)          Executed originals
of the Loan Documents; and


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


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


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


 


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


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


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


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


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


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


 


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4.2          Conditions
to Effective Date; All Loans.


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


A.            Spin-Off Transaction.


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


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


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


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


 


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


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


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


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


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


4.3          Conditions
to Letters of Credit.


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


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


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


 


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Section 5.              COMPANY’S
REPRESENTATIONS AND WARRANTIES


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


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


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


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


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


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


5.2          Authorization
of Borrowing, etc.


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


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


 


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


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


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


5.3          Financial
Condition.


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


5.4          No
Material Adverse Change.


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


5.5          Title
to Properties; Liens.


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


 


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


5.6          Litigation;
Adverse Facts.


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


5.7          Payment
of Taxes.


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


5.8          Governmental
Regulation.


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


5.9          Securities
Activities.


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


5.10        Employee
Benefit Plans.


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


 


61

















 


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


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


5.11        Environmental
Protection.


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


5.12        Solvency.


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


5.13        Disclosure.


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


5.14        Foreign
Assets Control Regulations, etc..


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


 


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


Section 6.              AFFIRMATIVE
COVENANTS


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


6.1          Financial
Statements and Other Reports.


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


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


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


 


63

















 


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


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


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


 


64

















 


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


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


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


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


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


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


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


 


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6.2          Existence, etc.


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


6.3          Payment of Taxes and Claims.


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


6.4          Maintenance of Properties;
Insurance.


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


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


6.5          Inspection Rights.


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


 


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


6.6          Compliance with Laws, etc.


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


Section 7.              NEGATIVE COVENANTS


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


7.1          Liens and Related Matters.


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


(i)            Permitted
Encumbrances;


(ii)           Liens described in Schedule
7.1 annexed hereto;


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


 


 


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


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


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


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


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


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


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


 


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


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


7.2          Acquisitions.


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


7.3          Restricted Junior Payments.


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


7.4          Financial Covenants.


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


 


 


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


7.5          Restriction on Fundamental Changes;
Asset Sales.


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


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


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


7.6          Transactions with Affiliates.


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


7.7          Conduct of Business.


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


 


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Section 8.              EVENTS OF DEFAULT


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


8.1          Failure to Make Payments When Due.


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


8.2          Default in Other Agreements.


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


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


8.3          Breach of Certain Covenants.


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


8.4          Breach of Warranty.


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


 


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8.5          Other Defaults Under Loan Documents.


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


8.6          Involuntary Bankruptcy; Appointment
of Receiver, etc.


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


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


8.7          Voluntary Bankruptcy; Appointment
of Receiver, etc.


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


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


 


 


72

















 


8.8          Judgments and Attachments.


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


8.9          Dissolution.


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


8.10        Employee Benefit Plans.


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


8.11        Change in Control.


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


8.12        Licensing.


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


8.13        Certain Proceedings.


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


 


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


8.14        Invalidity of Loan Documents;
Repudiation of Obligations.


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


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


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


 


74

















 


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


Section 9.              ADMINISTRATIVE AGENT


9.1          Appointment.


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


9.2          Powers and Duties; General Immunity.


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


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


 


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


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


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


Creditworthiness.


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


9.4          Right to Indemnity.


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


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


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


 


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


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


9.6          Duties of Other Agents.


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


9.7          Administrative Agent May File
Proofs of Claim.


In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
Company or any of the Subsidiaries of Company, Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether Administrative Agent shall have made any demand on Company) shall be
entitled and empowered, by intervention in such proceeding or otherwise


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


 


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


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


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


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


Section 5.              MISCELLANEOUS


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


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


B.            Assignments.


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


Upon such
execution, delivery and consent, from and after the effective date specified in
such Assignment Agreement, (y) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment Agreement, shall have the rights and obligations
of a Lender hereunder and (z) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment Agreement, relinquish its rights (other than any rights
which survive the termination of this Agreement under subsection 10.9B) and be
released from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease
to be a party hereto; provided that, anything contained in any of the Loan
Documents to the contrary notwithstanding, if such Lender is an Issuing Lender
such Lender shall continue to have all rights and obligations of an Issuing
Lender until the cancellation or expiration of any Letters of Credit issued by
it and the reimbursement of any amounts drawn thereunder).  The assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall, if so requested by the assignee and/or the assigning
Lender in accordance with subsection 2.1E, be issued to the assignee and/or to
the assigning Lender, substantially in the form of Exhibit IV or Exhibit
V annexed hereto, as the case may be, with appropriate insertions, to
reflect the amounts of the new Commitments and/or outstanding Revolving Loans,
as the case may be, of the assignee and/or the assigning Lender.  Other than as provided in subsection 2.1A(ii)
and subsection 10.5, any assignment or transfer by a Lender of rights or obligations
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10.1B shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection 10.1C.


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


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


 


 


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


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


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


10.2        Expenses.


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


 


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


10.3        Indemnity.


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


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


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


10.4        Set-Off.


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


 


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


10.5        Ratable
Sharing.


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


 


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


10.6        Amendments
and Waivers.


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


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


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


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


 


85

















 


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


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


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


10.7        Independence
of Covenants.


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


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


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


 


86

















 


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


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


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


 


87

















 


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


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


10.9        Survival
of Representations, Warranties and Agreements.


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


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


10.10      Failure
or Indulgence Not Waiver; Remedies Cumulative.


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


10.11      Marshalling;
Payments Set Aside.


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


 


88

















 


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


10.12      Severability.


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


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


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


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


10.14      Applicable
Law.


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


 


89

















 


10.15      Construction
of Agreement; Nature of Relationship.


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


10.16      Consent
to Jurisdiction and Service of Process.


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


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


(II)           WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS;


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


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


10.17      Waiver
of Jury Trial.


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


 


90

















 


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


10.18      Confidentiality.


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


 


91

















 


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


10.19      Counterparts;
Effectiveness.


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


10.20      USA
Patriot Act.


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


[Remainder of page
intentionally left blank]


 


92

















 


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


	
   

  	
  COMPANY:

  	
   

  
	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  /s/Arthur H. Berman

  
	
   

  	
   

  	
  Title:
  Senior Vice President & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  LENDERS:

  	
   

  
	
   

  	
   

  	
  WELLS FARGO BANK, NATIONAL

  ASSOCIATION,

  
	
   

  	
   

  	
  individually
  and as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/Michael
  Giese

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/Dan
  Weiler

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
   

  	
  as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:/s/David
  A. Dodge

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE
  BANK OF NEW YORK,

  
	
   

  	
   

  	
  as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  /s/Michael Pensari

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUNTRUST BANK, INC.

  
	
   

  	
   

  	
  as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/Brian
  Peters

  	
   

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


 


 


Signature Page to Ameriprise
Credit Agreement


 


 

















 


	
   

  	
  GREENWICH
  CAPITAL MARKETS, INC.,

  
	
   

  	
  as
  agent for THE ROYAL BANK OF SCOTLAND

  PLC,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:
  /s/Diane Ferguson

  
	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
  HSBC
  BANK USA, National Association,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:
  /s/Lawrence Karp

  
	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:
  /s/Erin O’Rourke

  
	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  LLOYDS
  TSB BANK, plc.,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:
  /s/James M. Rudd

  
	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  By:
  /s/Melissa Curry

  
	
   

  	
  Title:
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:
  /s/Christine Dean

  	
   

  
	
   

  	
  Title:
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By: /s/William
  R. Goley

  
	
   

  	
  Title:
  Director

  



 


 

















 


	
   

  	
  WILLIAM STREET COMMITMENT

  CORPORATION (recourse only to assets of

  William Street Commitment Corporation),

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By: Mark Walton

  
	
   

  	
  Title: Assistant Vice President