Exhibit 10.1


 


EXECUTION VERSION


 




 


 





CREDIT
AGREEMENT


 


DATED AS OF SEPTEMBER 30, 2010


 


AMONG


 


AMERIPRISE FINANCIAL, INC.,

as Borrower,


 


THE LENDERS LISTED HEREIN,

as Lenders,


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,


 


BANK OF AMERICA, N.A.,

as Syndication Agent


 


and


 


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

HSBC BANK USA, NATIONAL ASSOCIATION,


and


JPMORGAN CHASE BANK, N.A.,


as Co-Documentation Agents


 






 


WELLS FARGO SECURITIES, LLC

and


BANC OF AMERICA SECURITIES, LLC,

as Joint Lead Arrangers and Joint Bookrunners


 




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Certain Defined Terms.

  	
  1

  
	
  1.2

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

  	
  22

  
	
  1.3

  	
  Other Definitional Provisions and
  Rules of Construction.

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNTS AND TERMS OF LOANS

  	
  23

  
	
   

  	
   

  	
   

  
	
  2.1

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

  	
  23

  
	
  2.2

  	
  Interest on the Loans.

  	
  32

  
	
  2.3

  	
  Fees.

  	
  35

  
	
  2.4

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

  	
  36

  
	
  2.5

  	
  Use of Proceeds.

  	
  39

  
	
  2.6

  	
  Special Provisions Governing Loans based on
  the Eurodollar Rate.

  	
  39

  
	
  2.7

  	
  Increased Costs; Taxes; Capital Adequacy.

  	
  42

  
	
  2.8

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

  	
  48

  
	
  2.9

  	
  Replacement of a Lender.

  	
  48

  
	
  2.10

  	
  Increase in Commitments.

  	
  49

  
	
  2.11

  	
  Conversion to Term Loan.

  	
  50

  
	
  2.12

  	
  Defaulting Lenders.

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  LETTERS OF CREDIT

  	
  53

  
	
   

  	
   

  	
   

  
	
  3.1

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

  	
  53

  
	
  3.2

  	
  Letter of Credit Fees.

  	
  55

  
	
  3.3

  	
  Drawings and Reimbursement of Amounts Paid
  Under Letters of Credit.

  	
  56

  
	
  3.4

  	
  Obligations Absolute.

  	
  59

  
	
  3.5

  	
  Nature of Issuing Lenders’ Duties.

  	
  60

  
	
  3.6

  	
  Applicability of UCP and ISP.

  	
  60

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS TO LOANS AND LETTERS OF CREDIT

  	
  60

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Conditions to Closing.

  	
  61

  
	
  4.2

  	
  Conditions to Effective Date; All Loans.

  	
  62

  
	
  4.3

  	
  Conditions to Letters of Credit.

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  COMPANY’S REPRESENTATIONS AND WARRANTIES

  	
  64

  
	
   

  	
   

  	
   

  
	
  5.1

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

  	
  64

  



 


i

















 


	
  5.2

  	
  Authorization of Borrowing, etc.

  	
  64

  
	
  5.3

  	
  Financial Condition.

  	
  65

  
	
  5.4

  	
  No Material Adverse Change.

  	
  65

  
	
  5.5

  	
  Title to Properties; Liens.

  	
  65

  
	
  5.6

  	
  Litigation; Adverse Facts.

  	
  66

  
	
  5.7

  	
  Payment of Taxes.

  	
  66

  
	
  5.8

  	
  Governmental Regulation.

  	
  66

  
	
  5.9

  	
  Securities Activities.

  	
  66

  
	
  5.10

  	
  Employee Benefit Plans.

  	
  66

  
	
  5.11

  	
  Environmental Protection.

  	
  67

  
	
  5.12

  	
  Solvency.

  	
  67

  
	
  5.13

  	
  Disclosure.

  	
  67

  
	
  5.14

  	
  Foreign Assets Control
  Regulations, etc

  	
  67

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  AFFIRMATIVE COVENANTS

  	
  68

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Financial Statements and Other Reports.

  	
  68

  
	
  6.2

  	
  Existence, etc.

  	
  71

  
	
  6.3

  	
  Payment of Taxes and Claims.

  	
  71

  
	
  6.4

  	
  Maintenance of Properties; Insurance.

  	
  71

  
	
  6.5

  	
  Inspection Rights.

  	
  72

  
	
  6.6

  	
  Compliance with Laws, etc.

  	
  72

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE COVENANTS

  	
  72

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Liens and Related Matters.

  	
  72

  
	
  7.2

  	
  Acquisitions.

  	
  74

  
	
  7.3

  	
  Restricted Junior Payments.

  	
  75

  
	
  7.4

  	
  Financial Covenants.

  	
  75

  
	
  7.5

  	
  Restriction on Fundamental Changes; Asset
  Sales.

  	
  75

  
	
  7.6

  	
  Transactions with Affiliates.

  	
  75

  
	
  7.7

  	
  Conduct of Business.

  	
  76

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS OF DEFAULT

  	
  76

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Failure to Make Payments When Due.

  	
  76

  
	
  8.2

  	
  Default in Other Agreements.

  	
  76

  
	
  8.3

  	
  Breach of Certain Covenants.

  	
  77

  
	
  8.4

  	
  Breach of Warranty.

  	
  77

  
	
  8.5

  	
  Other Defaults Under Loan Documents.

  	
  77

  
	
  8.6

  	
  Involuntary Bankruptcy; Appointment of
  Receiver, etc.

  	
  77

  
	
  8.7

  	
  Voluntary Bankruptcy; Appointment of
  Receiver, etc.

  	
  78

  
	
  8.8

  	
  Judgments and Attachments.

  	
  78

  
	
  8.9

  	
  Dissolution.

  	
  78

  
	
  8.10

  	
  Employee Benefit Plans.

  	
  78

  
	
  8.11

  	
  Change in Control.

  	
  78

  
	
  8.12

  	
  Licensing.

  	
  79

  



 


ii

















 


	
  8.13

  	
  Certain Proceedings.

  	
  79

  
	
  8.14

  	
  Invalidity of Loan Documents; Repudiation
  of Obligations.

  	
  79

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  ADMINISTRATIVE AGENT

  	
  80

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Appointment.

  	
  80

  
	
  9.2

  	
  Powers and Duties; General Immunity.

  	
  80

  
	
  9.3

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

  	
  82

  
	
  9.4

  	
  Right to Indemnity.

  	
  82

  
	
  9.5

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

  	
  83

  
	
  9.6

  	
  Duties of Other Agents.

  	
  83

  
	
  9.7

  	
  Administrative Agent May File Proofs
  of Claim.

  	
  84

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  84

  
	
   

  	
   

  	
   

  
	
  10.1

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

  	
  84

  
	
  10.2

  	
  Expenses.

  	
  87

  
	
  10.3

  	
  Indemnity.

  	
  88

  
	
  10.4

  	
  Set-Off.

  	
  89

  
	
  10.5

  	
  Ratable Sharing.

  	
  89

  
	
  10.6

  	
  Amendments and Waivers.

  	
  90

  
	
  10.7

  	
  Independence of Covenants.

  	
  91

  
	
  10.8

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

  	
  91

  
	
  10.9

  	
  Survival of Representations, Warranties and
  Agreements.

  	
  93

  
	
  10.10

  	
  Failure or Indulgence Not Waiver; Remedies
  Cumulative.

  	
  94

  
	
  10.11

  	
  Marshalling; Payments Set Aside.

  	
  94

  
	
  10.12

  	
  Severability.

  	
  94

  
	
  10.13

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

  	
  94

  
	
  10.14

  	
  Applicable Law.

  	
  95

  
	
  10.15

  	
  Construction of Agreement; Nature of
  Relationship.

  	
  95

  
	
  10.16

  	
  Consent to Jurisdiction and Service of
  Process.

  	
  95

  
	
  10.17

  	
  Waiver of Jury Trial.

  	
  96

  
	
  10.18

  	
  Confidentiality.

  	
  96

  
	
  10.19

  	
  Counterparts; Effectiveness.

  	
  97

  
	
  10.20

  	
  USA Patriot Act.

  	
  97

  
	
  10.21

  	
  Entire Agreement.

  	
  98

  



 


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

  
	
   

  	
   

  
	
  1.2

  	
  EXISTING LETTERS OF CREDIT

  
	
   

  	
   

  
	
  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,
2010 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 BANK OF AMERICA, N.A.,
as syndication agent for Lenders (in such capacity, “Syndication Agent”), and CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH, HSBC BANK USA, NATIONAL
ASSOCIATION and JPMORGAN CHASE BANK, N.A.,
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 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

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Facility

  Fee

  	
   

  
	
  Pricing Level I

  	
   

  	
  > A+ /A1

  	
   

  	
  0.92

  	
  %

  	
  0

  	
  %

  	
  0.08

  	
  %

  
	
  Pricing Level II

  	
   

  	
  A / A2

  	
   

  	
  1.15

  	
  %

  	
  0.15

  	
  %

  	
  0.10

  	
  %

  
	
  Pricing Level III

  	
   

  	
  A- / A3

  	
   

  	
  1.35

  	
  %

  	
  0.35

  	
  %

  	
  0.15

  	
  %

  
	
  Pricing Level IV

  	
   

  	
  BBB+/ Baa1

  	
   

  	
  1.80

  	
  %

  	
  0.80

  	
  %

  	
  0.20

  	
  %

  
	
  Pricing Level V

  	
   

  	
  < BBB+ / Baa1

  	
   

  	
  1.95

  	
  %

  	
  0.95

  	
  %

  	
  0.30

  	
  %

  



 


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 Moody’s, the Applicable Margin shall be Pricing
Level V.  Notwithstanding the foregoing,
from 


 


2

















 


and
after the Term Loan Conversion Date, each of the Eurodollar Margin and the Base
Rate Margin shall be increased by 0.25% per annum.


 


“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, as of any date of determination, the
greatest of (a) the Prime Rate in effect on such day, (b) the Federal
Funds Effective Rate for such day plus 1.50% and (c) the One Month
LIBOR Rate for such day (determined on a daily basis as set forth in the
definition of “Eurodollar Rate”) plus 1.50%.  As used in this definition, “One Month LIBOR Rate” means the Eurodollar Rate with a term
equivalent to one month commencing on such date of determination.


 


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


 


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


 


“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.


 


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 California, 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.


 


“Cash Collateralization” means providing Cash
collateral for outstanding Letters of Credit (pursuant to documentation
reasonably satisfactory to Administrative Agent, including provisions that
specify that all fees and usage charges set forth in this Agreement will
continue to accrue while such Letters of Credit are outstanding) to be held by
Administrative Agent for the benefit of those Lenders with a Revolving Loan
Commitment in an amount equal to 105% of the stated amount of such Letters of
Credit.


 


“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 


 


4

















 


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 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; provided, that the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines or directives in connection therewith shall be deemed to have gone
into effect and been adopted after the date of this Agreement.


 


“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 subsection 2.1A.


 


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


 


“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.


 


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


 


“Confidential Information Memorandum” means the Confidential
Information Memorandum dated August 2010 relating to the credit facilities
evidenced by this Agreement.


 


“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 before equity of non-controlling interests, but excluding appropriate
retained earnings of Variable Interest Entities and the unrealized gain or loss
relating to ASC 320.


 


“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 (excluding (A) debt securities which are not
recourse to Company or any of its Subsidiaries and which are issued by Variable
Interest Entities,  (B) repurchase
agreements, (C) obligations owing to any 


 


5

















 


Federal
Home Loan Bank, (D) obligations owing to any Federal Reserve Bank secured
by pledges of mortgage-backed securities, and (E) derivatives transactions
entered into in the ordinary course of business for the purpose of asset and
liability management), 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, 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.


 


“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 lower than the higher 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 such amount is the subject of a good faith
dispute, (c) has notified Company, 


 


6

















 


Administrative
Agent or any other Lender in writing that it does not intend to comply with any
of its funding obligations under this Agreement or has made a public statement
that it does not intend to comply or has failed to comply with its funding
obligations under this Agreement or generally under other agreements in which
it commits or is obligated to extend credit, or (d) has been adjudicated
as, or determined by any Government Authority having regulatory authority over
such Lender or its assets to be insolvent or has become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee or custodian appointed for it, or has taken any action in furtherance
of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment (unless, in the case of any Lender referred to in
this clause (d), Company, Administrative Agent, Issuing Bank and Swingline
Lender shall be satisfied that such Lender intends, and has all approvals
required to enable it, to continue to perform its obligations as a Lender
hereunder); provided that a Lender shall not be a Defaulting Lender solely by
virtue of the ownership or acquisition of any ownership interest in such Lender
or parent company thereof or the exercise of control over a Lender or a parent
company thereof by a Government Authority or instrumentality thereof.


 


“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.


 


“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 


 


7

















 


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 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 or 430 of the Internal
Revenue Code with respect to any Pension Plan (whether or not waived in
accordance with Section 412(c) of the Internal Revenue Code) or the
failure to make by its due date a required installment under Section 430(g) 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 


 


8

















 


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 430(k) or
the providing of security under Section 436(f) 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,
except for the purposes of subsection 8.10 hereof, 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.


 


“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 Period, with respect
to a Eurodollar Rate Loan, a rate per annum (rounded upwards, as necessary, to
the nearest 1/16th of one percent) obtained by dividing (a) the
rate per  annum determined by
Administrative Agent at approximately 11:00 A.M., London time, on the date
that is two Business Days prior to the beginning of such Interest Period by
reference to the British Bankers’ Association “Interest Settlement Rates” for
deposits in Dollars (as set forth by any service (including Bloomberg, Reuters
and Thomson Financial) selected by Administrative Agent that has been nominated
by the British Bankers’ Association as an authorized information vendor for the
purpose of displaying such rates) in an amount approximately equal to the
principal amount to which such Interest Period applies (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period (provided that, if an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, then “Eurodollar
Rate” shall be the interest rate per  annum
determined by Administrative Agent (or, in the case of a Bid Loan, the
applicable Bid Loan Lender) to be the average of the rates per annum at which
deposits in Dollars in an amount approximately equal to the principal amount to
which such Interest Period applies (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period are offered for
such Interest Period by Wells Fargo (or, in the case of a Bid Loan, the
applicable Bid Loan 


 


9

















 


Lender)
to major banks in the London interbank offered market in London, England at
approximately 11:00 A.M., London time, on the date that is two Business
Days prior to the beginning of such Interest Period) by (b) one minus
the Reserve Percentage in effect on such date. 
Each determination by Administrative Agent (or, in the case of a Bid
Loan, the applicable Bid Loan Lender) pursuant to this definition shall be
conclusive absent manifest error.


 


“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 Loan” means a Revolving Loan
bearing interest at a rate 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 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 as a result of a present or former connection
between such recipient and the jurisdiction of such Government Authority (other
than any such connection arising solely from such recipient having executed,
delivered or performed its obligations or received a payment under, or
enforced, any of the Loan Documents), (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) taxes imposed under FATCA,
and (iv) in the case of a Foreign Lender (other than an assignee pursuant
to a request of Company under subsection 2.9), any withholding tax that (x) is
imposed on amounts payable to such Foreign Lender at the time it becomes a
party hereto (or designates a new lending office), (y) is attributable to
such Foreign Lender’s failure or inability (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 Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from Company with respect to such withholding tax pursuant
to subsection 2.7B, or (z) is required to be deducted under applicable law
from any payment hereunder on the basis of the information provided by such
Foreign Lender pursuant to clause (d) of subsection 2.7B(iv) (other
than as a result of a Change in Law).


 


“Extension Request” is defined in subsection 2.11.


 


“FATCA” means Sections 1471 through 1474 of the Internal
Revenue Code and any regulations or official interpretations thereof (including
any Revenue Ruling, Revenue


 


10
















 


Procedure,
Notice or similar guidance issued by the U.S. Internal Revenue Service
thereunder as a precondition to relief or exemption from Taxes under such
provisions).


 


“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
the United States, any state thereof or the District of Columbia.


 


“Fronting Exposure” means, at any time there is a Defaulting
Lender, (a) with respect to the Issuing Lender, such Defaulting Lender’s
Pro Rata Share of the outstanding Letter of Credit Usage other than Letter of
Credit Usage as to which such Defaulting Lender’s participation obligation has
been reallocated to other Lenders or Cash Collateralization or other credit
support acceptable to the Issuing Lender shall have been provided in accordance
with the terms hereof and (b) with respect to Swing Line Lender, such
Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing Line
Loans as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders, repaid by Company or for which Cash
Collateralization or other credit support acceptable to Swing Line Lender shall
have been provided in accordance with the terms hereof.


 


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


 


“Funding and Payment Office” means (i) the office of
Administrative Agent and Swing Line Lender located at 201 Third Street, 11th
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 


 


11

















 


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, 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.


 


12

















 


“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 Taxes other than 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, 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 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, collectively, (i) standby letters of credit issued or to be issued
by Issuing Lenders for the account of Company pursuant to 


 


13

















 


subsection
3.1, and (ii) the standby letters of credit previously issued by Wells
Fargo and outstanding on the Closing Date as set forth on Schedule 1.2
hereto.


 


“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 or other applicable law, 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.


 


“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
and any term loans which remain outstanding following a conversion pursuant to
subsection 2.11.


 


“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 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.


 


“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit),
Contingent Obligations or obligations in respect of one or more Swap Contracts,
of any one or more of Company and its Subsidiaries, in an aggregate principal
amount in excess of the Threshold Amount. 
For purposes of determining Material Indebtedness, the “principal amount”
of the obligations of any Person in respect of any Swap Contract shall be the
Swap Termination Value at such time.


 


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


 


14

















 


“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.


 


“One Month LIBOR Rate” has the meaning assigned to that term
in the definition of the term “Base Rate”.


 


“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, 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.


 


15

















 


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


 


“Permitted Encumbrances” means the following types of Liens
(excluding any such Lien imposed pursuant to Section 430 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;


 


(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;


 


16

















 


(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 prime commercial lending rate of Wells
Fargo, as established from time to time at its principal office in San
Francisco, California. The Prime Rate is an index or base rate and does not
necessarily represent the lowest or best rate actually charged to any customer
or other banks.  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.


 


“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 


 


17

















 


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 Revolving Loan Commitment of, and the portion of the Total Utilization
of Revolving Loan Commitments, as applicable, held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Requisite Lenders.


 


“Reserve Percentage” means the stated maximum rate (rounded
upwards, as necessary, to the nearest 1/16th of one percent), as in effect on any date of
determination of all reserve requirements (including any marginal, emergency,
supplemental, special or other reserves) applicable on such 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) of the Board of Governors of the Federal Reserve System of the
United States as in effect on such day, whether or not applicable to any
Lender.


 


“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 


 


18

















 


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 29,
2011.


 


“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.


 


“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.


 


19

















 


“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.


 


“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, 2010 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 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.


 


“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, other than any Variable Interest Entity.


 


20
















 


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


 


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


 


“Swing Line 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.


 


“Term Loan Conversion Date” means the
date on which the Loans (other than the Bid Loans) are converted to term loans
pursuant to subsection 2.11.


 


“Term Loan Termination Date” means,
following the term loan conversion specified in subsection 2.11, the date
on which the payment of such term loan is due and payable 


 


21

















 


pursuant to such subsection 2.11, or any earlier date on which the
Obligations of Company become due and payable pursuant to the terms hereof.


 


“Threshold Amount” means $100,000,000.


 


“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.


 


“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.


 


“Variable Interest Entity”
means any of (i) a “variable interest entity”, as defined in ASC 810,
which is required to be consolidated under ASC 810, or (ii) a partnership
or similar entity consolidated under the guidance of ASC 810 solely as a result
of the application of the former guidance of EITF 04-5, FIN 46R or FASB 167.


 


“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 


 


22

















 


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, such financial
covenants shall be calculated without giving effect to any election under ASC
825 (or any other Financial Accounting Standard having a similar result or
effect) to value any debt of Company or any Subsidiary at “fair value”, as
defined therein.


 


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).


 


23

















 


(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 Closing 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 $500,000,000; provided that the
amount of the Revolving Loan Commitment of each 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 $100,000,000; 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 


 


24

















 


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 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 


 


25

















 


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 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.


 


(e)                                  Defaulting Lenders.  Notwithstanding anything to the contrary
contained in this subsection 2.1A(ii), Swing Line Lender shall not be obligated
to make any Swing Line Loan at a time when any other Lender is a Defaulting
Lender, unless Swing Line Lender has entered into arrangements (which may
include Cash Collateralization) with Company or such Defaulting Lender which
are satisfactory to Swing Line Lender to eliminate Swing Line Lender’s Fronting
Exposure (after giving effect to subsection 2.12C) with respect to any such
Defaulting Lender.


 


26

















 


(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 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 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 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)                                     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 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
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 


 


27

















 


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 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. 
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 Company
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, 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 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 


 


28

















 


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,
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, 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. 
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, 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 


 


29

















 


been accepted by Company shall make the amount of its Bid Loan(s) available
to Administrative Agent in immediately available funds at 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,
Administrative Agent shall make all funds so received available to Company in
like funds as received by Administrative Agent.


 


(j)                                     Notice of Range of
Bids.  After each Competitive Bid auction pursuant
to this subsection 2.1A(iii), 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 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


 


30
















 


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
(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 


 


31

















 


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 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 


 


32

















 


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 sum of the Base Rate plus the Base Rate Margin; 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 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 plus
the Base Rate Margin.


 


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;


 


33

















 


(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 unless a term loan conversion has
been completed pursuant to subsection 2.11, in which case the Interest Period
must end on or prior to the Term Loan 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 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 $5,000,000 and multiples of
$1,000,000 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 $5,000,000 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 


 


34

















 


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 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
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 Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility
fee equal to the Applicable 


 


35

















 


Margin times the actual daily amount of the Revolving Loan
Commitment Amount (or, (x) if the Revolving Loan Commitment Amount has
terminated, on the Total Utilization of Revolving Loan Commitments, or (y) following
the conversion of Loans to term loans pursuant to subsection 2.11, on the
actual daily principal amount outstanding of such term loans), regardless of
usage.  The facility fee shall accrue at
all times from the Closing Date to the Revolving Loan Commitment Termination
Date or the Term Loan Termination Date, as applicable (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 or the Term Loan Termination
Date, as applicable (and, if applicable, thereafter on demand).  The facility fee 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.                                    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 


 


36

















 


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 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 Collateralization of 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 Collateralization 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.


 


37

















 


(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.


 


(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:


 


38

















 


(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 2.3B), 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


 


(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 Loans based on the Eurodollar Rate.


 


Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to Eurodollar Rate Loans or
Base Rate Loans as to which the interest rate is determined by reference to the
Eurodollar Rate 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 Eurodollar Rate or One Month LIBOR Rate that
shall apply to the 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.  If with respect to any
Interest Period:


 


(i)                                     Administrative Agent determines that, or the
Requisite Lenders determine 


 


39

















 


and advise
Administrative Agent that, deposits in Dollars (in the applicable amounts) are
not being offered in the London interbank eurodollar market for such Interest
Period; or


 


(ii)                                  Administrative Agent otherwise determines, or
the Requisite Lenders determine and advise Administrative Agent (which
determination shall be binding and conclusive on all parties), that by reason
of circumstances affecting the London interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable Eurodollar Rate;
or


 


(iii)                               Administrative Agent determines, or the Requisite Lenders determine and
advise Administrative Agent, that the Eurodollar Rate as determined by
Administrative Agent will not adequately and fairly reflect the cost to the
Lenders of maintaining or funding a Eurodollar Rate Loan or a Base Rate Loan as
to which the interest rate is determined by reference to the Eurodollar Rate
for such Interest Period, or that the making or funding of Eurodollar Rate Loan
or a Base Rate Loan as to which the interest rate is determined by reference to
the Eurodollar Rate has become impracticable as a result of an event occurring
after the date of this Agreement which in the opinion of such Lenders
materially affects such Loans;


 


then Administrative Agent shall promptly
notify the affected parties and (A) in the event of any occurrence
described in the foregoing clause (i) Company shall enter into good faith
negotiations with each affected Lender in order to determine an alternate
method to determine the Eurodollar Rate for such Lender, and during the
pendency of such negotiations with any Lender, such Lender shall be under no
obligation to make any new Eurodollar Rate Loan and the interest rate
applicable to each Base Rate Loan shall be determined without reference to the
Eurodollar Rate, and (B) in the event of any occurrence described in the
foregoing clauses (ii) or (iii), for so long as such circumstances shall
continue, no Lender shall be under any obligation to make any new Eurodollar
Rate Loan and the interest rate applicable to each Base Rate Loan shall be
determined without reference to the Eurodollar Rate.


 


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 or Base Rate Loans as
to which the interest rate is determined by reference to the Eurodollar Rate (i) has
become unlawful as a result of compliance by such Lender in good faith with any
law, 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,


 


40
















 


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 applicable 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 or the paragraph following subsection 8.14) 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 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 


 


41

















 


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), 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);


 


(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


 


42

















 


(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 or Other 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 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)                                 as soon as
practicable after the due date of payment of any Tax which it is required by
clause (b) above to pay, Company shall deliver to 


 


43

















 


Administrative Agent the original or a certified copy of an official
receipt or other document reasonably satisfactory to the other affected parties
to 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 or Other 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 Lender, if
requested by Company or Administrative Agent, shall deliver such forms or other
documentation prescribed by applicable law or reasonably requested by Company
or Administrative Agent as will enable Company or Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements;


 


(b)                                 any Foreign Lender
that is entitled to an exemption from or reduction of any Tax with respect to
payments hereunder or under any other Loan Document shall deliver 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), such properly completed and duly
executed forms or other documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding;


 


(c)                                  without limiting
the generality of the foregoing, in the event that Company is resident for tax
purposes in the United States, any Foreign Lender shall deliver to Company and
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter, as may be
necessary in the determination of Company or Administrative Agent, each in the
reasonable exercise of its discretion), whichever of the following is
applicable:


 


(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


 


44

















 


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


 


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


 


(4)                                  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,


 


in each case together with 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;


 


(d)                                 without limiting
the generality of the foregoing, in the event that Company is resident for tax
purposes in the United States, any Foreign Lender that does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender) shall deliver to Administrative
Agent and Company (in such number of copies as shall be requested by the
recipient), on or prior to the date such Foreign Lender becomes a Lender, or on
such later date when such Foreign Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, 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):


 


(1)                                  duly executed and properly completed copies
of the forms and statements required to be provided by such Foreign Lender
under clause (c) of subsection 2.7B(iv), to establish the portion of any
such sums paid or payable with respect to which such Lender acts for its own
account and may be entitled to an exemption from or a reduction of the
applicable Tax, and


 


(2)                                  duly executed and properly completed copies
of Internal Revenue Service Form W-8IMY (or any successor forms) properly
completed and duly executed by such Foreign Lender, together with any
information, if any, such Foreign Lender chooses to transmit with such form,
and any other certificate or statement of exemption required under the Internal
Revenue Code or the regulations thereunder, to establish that 


 


45

















 


such Foreign
Lender is not acting for its own account with respect to a portion of any such
sums payable to such Foreign Lender;


 


(e)                                  without limiting
the generality of the foregoing, in the event that Company is resident for tax
purposes in the United States, 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 (in
such numbers of copies as shall be requested by the recipient) 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


 


(f)                                    without limiting
the generality of the foregoing, 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 Administrative Agent or any
Lender becomes aware that it is entitled to claim a refund from a Government
Authority or other taxation authority in respect of any Indemnified Taxes or
Other Taxes as to which it has been indemnified by Company or with respect to
which Company has paid additional amounts pursuant to this subsection 2.7B it
shall promptly notify Company of the availability of such refund claim and
shall, within 30 days after receipt of a request by Company, make a claim to
such Government Authority or taxation authority for such refund at Company’s
expense.  If Administrative Agent or any
Lender receives a refund (including pursuant to a claim made pursuant to the
preceding sentence) in respect of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by Company or with respect to which Company has
paid additional amounts pursuant to this subsection 2.7B, it shall pay over
such refund to Company (but only to the extent of indemnity payments made, or
additional amounts paid, by Company under this subsection 2.7B with respect to
the Indemnified Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Government
Authority or taxation authority with respect to such refund); provided, that
Company, upon the request of Administrative Agent or such Lender, agrees to
repay the amount paid over to Company (plus any 


 


46

















 


penalties,
interest or other charges imposed by the relevant Government Authority or
taxation authority) to Administrative Agent or such Lender in the event
Administrative Agent or such Lender is required to repay such refund to such
Government Authority. This paragraph shall not be construed to require
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to Company
or any other Person.


 


(vi)                              FATCA Compliance. 
Without limiting the foregoing, each Foreign Lender shall comply with
any certification, documentation, information or other reporting necessary to
establish an exemption from withholding under FATCA and shall provide any other
documentation reasonably requested by Company or Administrative Agent
sufficient for Company and Administrative Agent to comply with their
obligations under FATCA and to determine that such Foreign Lender has complied
with such applicable reporting requirements.


 


(vii)                           Indemnification by Lenders.  Each Lender shall indemnify
Administrative Agent within 10 days after demand therefor, for the full amount
of any Excluded Taxes attributable to such Lender that are payable or paid by
Administrative Agent, and reasonable expenses arising therefrom or with respect
thereto, whether or not such Excluded 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 any Lender by Administrative
Agent shall be conclusive absent manifest error.  Each Lender hereby
authorizes Administrative Agent to set off and apply any and all amounts at any
time owing to such Lender under any Loan Document against any amount due to
Administrative Agent under this paragraph (vii). The agreements in this
paragraph (vii) shall survive the resignation and/or replacement of
Administrative Agent.  In the event any of the Lenders fails to
indemnify Administrative Agent as hereinabove provided after Administrative
Agent has made proper claim therefor and the period for performance has
expired, Administrative Agent may demand that Company indemnify it within 30
days for any amounts which a Lender or Lenders has failed to indefeasibly
pay.   Each of the Lenders hereby
expressly agrees to reimburse Company promptly on demand for all amounts that
Company is required to pay to Administrative Agent as a result of such Lender’s
failure, plus all related and reasonable costs and expenses.  Administrative Agent agrees that Company
shall have each of the rights and remedies available to Administrative Agent
with respect to obtaining reimbursement from Lenders.


 


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.  


 


47

















 


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 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 notice that it may incur Obligations under
subsection 2.7 through a written statement delivered pursuant to subsection 2.8A
from Administrative Agent or a Lender or otherwise (other than for breakage
costs under subsection 2.6D or circumstances affecting all of the Lenders), (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 the 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 (A) 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 


 


48

















 


Lender’s Commitments and all other obligations of the Subject Lender
hereunder, (B) 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), (C) in the case of clause (iii) above,
with respect to matters requiring the consent of 100% of the Lenders, Requisite
Lenders have consented to such amendment, modification or waiver, and (D), 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.


 


2.10                        Increase
in Commitments.


 


A.                                    Request for Increase.  Provided there exists no Potential Event of
Default or Event of Default, upon notice to Administrative Agent (which shall
promptly notify the Lenders), Company may on one occasion during the term of
this Agreement request an increase in the Revolving Loan Commitment Amount by
an amount not exceeding $250,000,000; provided 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.  At the
time of sending such notice, Company (in consultation with 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 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. 
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 Administrative Agent and the Issuing Lender (which
approvals shall not be unreasonably withheld or delayed), Company may also
invite additional Eligible 


 


49

















 


Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to Administrative Agent and its counsel.


 


D.                                    Effective Date and Allocations.  If the Revolving Loan Commitment Amount is
increased in accordance with this Section, Administrative Agent and Company
shall determine the effective date (the “Increase
Effective Date”) and the final allocation of such increase.  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. 
The increased portion of the Revolving Loan Commitment shall be subject
to the existing terms and conditions of this Agreement.


 


E.                                      Conditions to Effectiveness of Increase.  As a condition precedent to such increase,
Company shall deliver to 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.


 


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


 


2.11                        Conversion
to Term Loan.


 


If Company so elects by delivery of a written notice to Administrative
Agent at least three (3) Business Days but not more than thirty (30) days
prior to the date of the Revolving Loan Commitment Termination Date, then on
such date (the “Term Loan Conversion Date”), the
Commitments shall be terminated and the then outstanding principal amount of
the Loans (other than Bid Loans) shall be converted to a term loan which shall,
in the case of each Lender, be in the amount of such Lender’s outstanding Loans
(other than Bid Loans) on such date, and which shall be due and payable in
full, together with accrued interest, on the one year anniversary of the
Revolving Loan Commitment Termination Date, with any prepayment thereof to be
made subject to subsection 2.6D; provided, that no such conversion
shall occur if an Event of Default or Potential Event of Default has occurred
and is continuing either on the date of delivery of such notice or on the Term
Loan Conversion Date.  Amounts repaid or
prepaid following any such conversion may not be reborrowed.  On the Term Loan Conversion Date, Company
shall pay a fee to the Agent, for the ratable benefit of each Lender, equal to
the product of (x) 1.00% times (y) the then outstanding principal
amount of all Loans being converted to a term loan on the Term Loan Conversion
Date.  If such term loan conversion has
not previously been completed, then on the Revolving Loan Commitment
Termination Date, the Commitments shall be terminated and all of the Loans and
other Obligations shall be due and payable.


 


50
















 


2.12                                                                                                Defaulting
Lenders.


 


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


 


A.                                    Waivers
and Amendments.  Such Defaulting
Lender’s right to approve or disapprove any amendment, waiver or consent with
respect to this Agreement shall be restricted as set forth in
subsection 10.6.


 


B.                                    Reallocation
of Payments.  Any payment of
principal, interest, fees or other amounts received by Administrative Agent for
the account of such Defaulting Lender (whether voluntary or mandatory, at
maturity, or otherwise, and including any amounts made available to
Administrative Agent for the account of such Defaulting Lender pursuant to
subsection 10.2 or 10.3), shall be applied at such time or times as may be
determined by Administrative Agent as follows: first, to the payment of
any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second,
to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to the Issuing Lender and/or Swing Line Lender hereunder; third,
if so determined by Administrative Agent or requested by the Issuing Lender
and/or Swing Line Lender, to Cash Collateralize future funding obligations of
such Defaulting Lender of any participation in any Swing Line Loan or Letter of
Credit; fourth, after a required amount has been fully Cash
Collateralized, to the return to Company of any amount posted thereby which
remains in excess of any such required amount; fifth, as Company may
request (so long as no Potential Event of Default or Event of Default exists),
to the funding of any Loan in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined
by Administrative Agent; sixth, if so determined by Administrative Agent
and Company, to be held in a non-interest bearing deposit account and released
in order to satisfy obligations of such Defaulting Lender to fund Loans under
this Agreement; seventh, to the payment of any amounts owing to
Administrative Agent, the Lenders, the Issuing Lender or Swing Line Lender as a
result of any judgment of a court of competent jurisdiction obtained by Administrative
Agent, any Lender, the Issuing Lender or Swing Line Lender against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement; eighth, so long as no Potential Event
of Default or Event of Default exists, to the payment of any amounts owing to
Company as a result of any judgment of a court of competent jurisdiction
obtained by Company against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; and ninth,
to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (i) such payment is a payment of the
principal amount of any Revolving Loans or funded participations in Swing Line
Loans or Letters of Credit in respect of which such Defaulting Lender has not
fully funded its appropriate share and (ii) such Revolving Loans or funded
participations in Swing Line Loans or Letters of Credit were made at a time
when the conditions set forth in subsection 4.2 or 4.3, as applicable,
were satisfied or waived, such payment shall be applied solely to pay the
Revolving Loans of, and funded participations in Swing Line Loans or Letters of
Credit owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied
to the payment of any Revolving Loans of, or funded participations in Swing
Line Loans or Letters of Credit owed to, such Defaulting Lender.  Any payments, prepayments or other amounts
paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to 


 


51

















 


post Cash collateral pursuant to this subsection 2.12B shall be deemed
paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.


 


C.                                    Reallocation
of Applicable Percentages to Reduce Fronting Exposure.  During any period in which there is a
Defaulting Lender, for purposes of computing the amount of the obligation of
each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit or Swing Line Loans pursuant to subsection 2.1A(ii) and
subsection 3.3, the “Pro Rata Share” of each non-Defaulting Lender shall
be computed without giving effect to the Revolving Loan Commitment of such
Defaulting Lender; provided that (i) each such reallocation shall
be given effect only if, at the date the applicable Lender becomes a Defaulting
Lender, no Potential Event of Default or Event of Default exists and (ii) the
aggregate obligation of each non-Defaulting Lender to acquire, refinance or
fund participations in Letters of Credit and Swing Line Loans shall not exceed
the positive difference, if any, of (A) the Revolving Loan Commitment of
that non-Defaulting Lender minus (B) the aggregate outstanding principal
amount of the Loans of that Lender.


 


D.                                    Cash
Collateral for Letters of Credit. 
Within three Business Days following demand by the Issuing Lender or
Administrative Agent from time to time, Company shall deliver to Administrative
Agent Cash collateral in an amount sufficient to cover all Fronting Exposure
with respect to the Issuing Lender (after giving effect to
subsection 2.12C on terms reasonably satisfactory to Administrative Agent
and the Issuing Lender (and such Cash collateral shall be in Dollars).  Any such Cash collateral shall be deposited
in a separate account with Administrative Agent, subject to the exclusive
dominion and control of Administrative Agent, as collateral (solely for the
benefit of the Issuing Lender) for the payment and performance of each
Defaulting Lender’s Pro Rata Share of outstanding Letter of Credit Usage.  Moneys in such account shall be applied by
Administrative Agent to reimburse the Issuing Lender immediately for each
Defaulting Lender’s Pro Rata Share of any drawing under any Letter of Credit
which has not otherwise been reimbursed by Company (including, without
limitation, through a Loan) or such Defaulting Lender.  If Company is no longer required to provide
an amount of Cash collateral hereunder, then such amount (to the extent not
applied as aforesaid) shall be returned to Company promptly following the
termination of such requirement.


 


E.                                      Prepayment
of Swing Line Loans.  Within three
Business Days following demand by Swing Line Lender or Administrative Agent
from time to time, Company shall prepay Swing Line Loans in an amount equal to
all Fronting Exposure with respect to Swing Line Lender (after giving effect to
subsection 2.12C).


 


F.                                      Certain
Fees.  For any period during which
such Lender is a Defaulting Lender, such Defaulting Lender (i) shall not
be entitled to receive any facility fee pursuant to subsection 2.3A (and
Company shall not be required to pay any such fee that otherwise would have
been required to have been paid to such Defaulting Lender) and (ii) shall
not be entitled to receive any Letter of Credit commissions pursuant to
subsection 3.2(i)(b) otherwise payable to the account of a Defaulting
Lender with respect to any Letter of Credit as to which such Defaulting Lender
has not provided Cash collateral or other credit support arrangements
satisfactory to the Issuing Lender pursuant to subsection 2.12D, but
instead, Company shall pay to the non-Defaulting Lenders the amount of such
Letter of Credit commissions in accordance with the upward adjustments in their
respective Pro Rata Shares allocable to such Letter of 


 


52

















 


Credit pursuant to subsection 2.12C (but excluding any portion of such
commissions attributable to the portion of the Fronting Exposure which has been
Cash Collateralized by Company), with the balance of such fee, if any, payable
to the Issuing Lender for its own account.


 


G.                                    Defaulting
Lender Cure.  If Company,
Administrative Agent, Swing Line Lender and the Issuing Lender agree in writing
in their sole discretion that a Defaulting Lender should no longer be deemed to
be a Defaulting Lender, Administrative Agent will so notify the parties hereto,
whereupon as of the date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash
Collateralization), that Lender will, to the extent applicable, purchase that
portion of outstanding Loans of the other Lenders or take such other actions as
Administrative Agent may determine to be necessary to cause the Loans and
funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro  rata basis by the Lenders in accordance with
their Pro Rata Shares (without giving effect to subsection 2.12C),
whereupon such Lender will cease to be a Defaulting Lender; provided,
that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of Company while such Lender was a Defaulting
Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of
any party hereunder arising from such Lender’s having been a Defaulting
Lender.  If Company is no longer required
to provide an amount of Cash collateral hereunder, then such amount (to the
extent not applied as aforesaid) shall be returned to Company promptly
following the termination of such requirement.


 


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 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:


 


(i)                                     any Lender issue or amend (and no Lender
shall issue or amend) any Letter of Credit if, after giving effect to such
issuance or amendment, the Total Utilization of Revolving Loan Commitments
would exceed the Revolving Loan Commitment Amount then in effect;


 


(ii)                                  any Lender issue or amend (and no Lender
shall issue or amend) any Letter of Credit if, after giving effect to such
issuance or amendment, the Letter of Credit Usage would exceed $50,000,000;


 


53

















 


(iii)                               any Lender issue (and no Lender shall issue) any Letter of Credit having
(or amend any existing Letter of credit so that it would have) an expiration
date later than the earlier of (a) 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 (x) a Letter of
Credit may have an expiration date later than the Revolving Loan Commitment
Termination Date only if Company agrees to Cash Collateralize such Letter of
Credit at least five Business Days prior to the Revolving Loan Commitment
Termination Date (or such later date as shall be determined by Administrative
Agent in its sole discretion) and (y) Letters of Credit may be issued with
(or amended to provide) a tenor of greater than one year only with the prior
written consent of all of the Lenders; or


 


(iv)                              any Lender issue (and no Lender shall issue) 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 (x) if the
Issuing Lender has received written notice that the conditions precedent set
forth in subsection 4.3 have not been satisfied, or (y) at a time when any
other Lender is a Defaulting Lender, unless the Issuing Lender has entered into
arrangements (which may include the delivery of Cash collateral) with Company
or such Defaulting Lender which are satisfactory to the Issuing Lender to
eliminate the Issuing Lender’s Fronting Exposure (after giving effect to
subsection 2.12C) with respect to any such Defaulting 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.


 


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 


 


54

















 


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.


 


C.                                    Lenders’ Purchase of Participations in
Letters of Credit.  Immediately
upon the issuance of each Letter of Credit, and as of the Closing Date with
respect to the Letters of Credit listed on Schedule 1.2, 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 or outstanding hereunder:


 


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(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 on the Revolving
Loan Commitment Termination Date and computed on the basis of a 360-day year
for the actual number of days elapsed, including any period after the Revolving
Loan Commitment Termination Date during which such Letter of Credit remains
outstanding, whether pursuant to subsection 3.1A(iii) or otherwise; 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 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 


 


56

















 


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 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 


 


57

















 


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), 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 


 


58

















 


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;


 


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).


 


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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 and ISP.


 


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 600) (the “UCP”), as most recently published by
the International Chamber of Commerce at the time of issuance, or International
Standby Practices (ISP 98), Publication 590, as applicable, shall apply to each
Letter of Credit.


 


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.


 


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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.


 


D.                                    Financial Statements.  Lenders shall have received from Company
audited financial statements for the year ended December 31, 2009 and
unaudited financial statements for the fiscal quarter ended June 30, 2010
of Company and its Subsidiaries in form and substance reasonably satisfactory
to Administrative Agent.


 


61

















 


E.                                      Opinion of Counsel. 
Lenders shall have received executed copies of the opinion of Company’s
General Counsel, 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.                                    Termination
of Existing Credit Agreement.  Administrative Agent shall have received
evidence of the termination of the Credit Agreement dated as of September 30,
2005 among Company, the lenders party thereto and Wells Fargo, as
administrative agent, and the payment of all amounts due and payable
thereunder.


 


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.


 


J.                                      Patriot
Act and “Know Your Customer” Information. 
The Administrative Agent shall have received all documentation and
other information required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the
United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)).


 


4.2                               Conditions
to Effective Date; All Loans.


 


The
obligations of Lenders to make any Revolving Loans (including 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:


 


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A.                                    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.


 


B.                                    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 4.2B 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.


 


63

















 


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 


 


64

















 


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, 2009, 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,
2010.  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, 2009, no event or change has occurred that has resulted in or
evidences, either in any case or in the aggregate, a Material Adverse Effect.


 


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 each case except for assets disposed of since
the date of such financial statements in the ordinary 


 


65

















 


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 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 Internal Revenue Code and the regulations and published interpretations
in each case thereunder with respect to each Employee Benefit Plan, and have
performed all their obligations under each Employee Benefit Plan.  To the knowledge of Company and each of its
Subsidiaries, 


 


66

















 


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, 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 are blocked pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking 


 


67

















 


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 or in the case of any Letters of Credit
remaining outstanding beyond the Revolving Loan Commitment Termination Date,
upon the Cash Collateralization of all such 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 


 


68

















 


Year, a narrative report
describing the operations of Company and its Subsidiaries in the 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 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 


 


69

















 


condition or event existed
or exists, specifying the nature and period of existence thereof 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, RiverSource 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, (b) as soon
as available and in any event within 100 days after the end of each Fiscal
Year, copies of the unaudited Annual Statement of IDS Property Casualty
Insurance Company, RiverSource 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 (c) as soon as available and
in any event by June 1 of each year, copies of the audited Annual
Statement for the prior Fiscal Year of IDS Property Casualty Insurance Company,
RiverSource Life Insurance Company and each other Insurance Subsidiary
requested in writing by Administrative Agent certified by 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 or a Government Authority concerning an ERISA Event;


 


70
















 


(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.


 


6.2                               Existence, etc.


 


Except
as permitted under subsection 7.5, Company will, and will cause each of its
Significant 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 or SAP, as applicable, 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 properties
used or useful in the business of Company and its Significant Subsidiaries
(including all intellectual property) if the failure to so maintain any such
properties would reasonably be expected to result in a Material Adverse Effect.


 


71

















 


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 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;


 


72

















 


(iii)                               Liens securing obligations 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 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;


 


(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 (other than secured
Indebtedness incurred in sale/leaseback transactions involving real property
occupied by Company or its Subsidiaries) 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 Company or any Subsidiary (other than such real property directly
securing such Indebtedness) if Company or such Subsidiary 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 mortgage-backed securities in favor of a Federal Reserve Bank;


 


(viii)                        Liens on assets securing obligations owing to a Federal Home Loan Bank;


 


(ix)                                Liens on assets securing repurchase agreements;


 


73

















 


(x)                                   other Liens securing liabilities in an aggregate amount not to exceed 10%
of Consolidated Net Worth; and


 


(xi)                                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.  Company will not, and will not permit any of
its Subsidiaries to, enter into or otherwise cause or suffer to exist 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 and (ii) any agreement
evidencing an asset sale, as to the assets being sold.


 


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 or any of 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.


 


74

















 


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%.


 


B.                                    Consolidated Net Worth.  Company shall maintain a Consolidated Net
Worth at all times equal to at least $6,891,000,000.


 


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;


 


(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; and


 


(iii)                               Company may or may cause any Subsidiary to sell the Capital Stock of any
Subsidiary or to sell all or substantially all of a Subsidiary’s assets, other
than in each case a Significant Subsidiary.


 


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 


 


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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 transactions between or among 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.


 


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 Material Indebtedness, 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 Material Indebtedness
or (b) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Material Indebtedness, if the effect of such breach or
default is to cause, or to permit the holder or holders of that Material
Indebtedness (or a trustee on behalf of such holder or holders) to cause, that
Material Indebtedness 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


 


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8.3                               Breach
of Certain Covenants.


 


Failure
of Company to perform or comply with any term or condition contained in
subsections 2.5, 2.12, 6.1(i), 6.2 or Section 7 (other than (x) subsection
7.1A, 7.6 or 7.7, to the extent such failure to comply therewith relates solely
to a breach by a Subsidiary of Company which is not a Significant Subsidiary,
and (y) 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


 


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


 


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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


 


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 $50,000,000; 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 or may be required to contribute (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; or


 


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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 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 


 


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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 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


 


80
















 


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
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 


 


81

















 


Loan
Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
10.6).


 


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


 


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 


 


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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 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 


 


83

















 


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


 


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


 


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


 


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


 


Section 10.                                   MISCELLANEOUS


 


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


 


A.                                    General.  This
Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and assigns of Lenders (it being understood that Lenders’ rights
of assignment are subject to the further provisions of this subsection
10.1).  Neither Company’s rights nor
obligations hereunder nor any interest therein may be assigned or delegated by
Company without the prior written consent of all Lenders (and any attempted
assignment or transfer by Company without such consent shall be null and
void).  No sale, assignment or transfer
or participation of 


 


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any
obligations of a Lender in respect of a Letter of Credit or any participation
therein may be made separately from a sale, assignment, transfer or
participation of a corresponding interest in the Revolving Loan Commitment and
the Revolving Loans of the Lender effecting such sale, assignment, transfer or
participation.  Anything contained herein
to the contrary notwithstanding, except as provided in subsection 2.1A(ii) and
subsection 10.5, the Swing Line Loan Commitment and the Swing Line Loans of
Swing Line Lender may not be sold, assigned or transferred as described below
to any Person other than a successor Administrative Agent and Swing Line Lender
to the extent contemplated by subsection 9.5. 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Affiliates of each of Administrative Agent and Lenders
and Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


B.                                    Assignments.


 


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


 


85

















 


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


 


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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.


 


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 


 


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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 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
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 


 


88

















 


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
(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 


 


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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 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 or the Term
Loan 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),


 


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(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 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 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 Revolving Loan
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 


 


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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.


 


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 


 


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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.


 


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 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.


 


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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
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 


 


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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.


 


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


 


95

















 


(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 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 


 


96

















 


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 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
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.


 


97

















 


10.21                 Entire
Agreement.


 


This
Agreement, the Notes and the other Loan Documents referred to herein embody the
final, entire agreement among the parties hereto and supersede any and all
prior commitments, agreements, representations and understandings, whether
written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto.  There are no unwritten oral agreements among
the parties hereto.


 


[Remainder of page intentionally left blank]


 


98

















 


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/
  James Hamalainen

  
	
   

  	
  Title:
  

  	
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDERS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  individually
  and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen Hanke

  
	
   

  	
  Title:
  

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,
  individually and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Tiffany Burgess

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Melvin Jackson

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CREDIT
  SUISSE AG, CAYMAN ISLANDS BRANCH,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jay Chall

  
	
   

  	
  Title:
  

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kathrin Marti

  
	
   

  	
  Title:
  

  	
  Assistant
  Vice President

  



 


[Signature Page to
Ameriprise Credit Agreement]


 

















 


	
   

  	
  HSBC
  BANK USA, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lawrence Karp

  
	
   

  	
  Title:
  

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BARCLAYS
  BANK PLC,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alicia Borys

  
	
   

  	
  Title:
  

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GOLDMAN
  SACHS BANK USA,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark Walton

  
	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY BANK, N.A.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ryan Vetsch

  
	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Hirsch

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK MELLON,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paulette J. Truman

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 


[Signature Page to
Ameriprise Credit Agreement]


 

















 


	
   

  	
  BNP
  PARIBAS,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Phil Truesdale

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Riad Jafarov

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIETE
  GENERALE,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Aishton

  
	
   

  	
  Title:
  

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UBS
  LOAN FINANCE LLC,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Irja R. Otsa

  
	
   

  	
  Title:
  

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  April Varner-Nanton

  
	
   

  	
  Title:
  

  	
  Director

  



 


[Signature Page to
Ameriprise Credit Agreement]


 






 












 


EXHIBITS


 


	
  I

  	
   

  	
  FORM OF
  NOTICE OF REVOLVING BORROWING

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IA

  	
   

  	
  FORM OF
  BID REQUEST

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IB

  	
   

  	
  FORM OF
  COMPETITIVE BID

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  FORM OF
  NOTICE OF CONVERSION/CONTINUATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  FORM OF
  REQUEST FOR ISSUANCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
   

  	
  FORM OF
  REVOLVING NOTE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V

  	
   

  	
  FORM OF
  SWING LINE NOTE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VI

  	
   

  	
  FORM OF
  COMPLIANCE CERTIFICATE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VII

  	
   

  	
  FORM OF
  ASSIGNMENT AGREEMENT

  	
   

  	
   

  



 

















 


EXHIBIT I


 


[FORM OF] NOTICE OF REVOLVING BORROWING


 


Pursuant
to that certain Credit Agreement dated as of September 30, 2010, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the
terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the
financial institutions listed therein as Lenders (“Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (“Administrative Agent”),
this represents Company’s request to borrow as follows:


 


1.                                       Date of
borrowing:                              ,                    


 


2.                                       Amount of
borrowing:  $                        


 


3.                                       Lender(s):


 


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


 


o b.                       Swing Line
Lender


 


4.                                       Type of Loans:


 


o a.                        Revolving Loans


 


o b.                       Swing Line Loan


 


5.                                       Interest rate
option:


 


o a.                        Base Rate
Loan(s)


 


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


 


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


 


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


 


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


 


I-1

















 


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


 


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


 


	
  DATED:

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


I-2

















 


EXHIBIT IA


 


[FORM OF] BID REQUEST


 


Pursuant
to that certain Credit Agreement dated as of September 30, 2010, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the
terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the
financial institutions listed therein as Lenders (“Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (“Administrative Agent”),
the Lenders are invited to make Bid Loans:


 


1.                                       Date of
borrowing:                                                 ,                              


 


2.                                       Amount of
borrowing:  $                                                   


 


3.                                       Comprised of
(select one):


 


o a.                        Bid Loans based
on an Absolute Rate


 


o b.                       Bid Loans based
on Eurodollar Rate


 




	
  Bid Loan

  No.

  	
   

  	
  Interest Period

  requested

  	
   

  	
  Maximum principal

  amount requested

  
	
  1

  	
   

  	
                                   days/mos

  	
   

  	
  $

  	
   

  
	
  2

  	
   

  	
                                   days/mos

  	
   

  	
  $

  	
   

  
	
  3

  	
   

  	
                                   days/mos

  	
   

  	
  $

  	
   

  






 


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


 


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


 


	
  DATED:

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


IA-1

















 


EXHIBIT IB


 


[FORM OF] COMPETITIVE BID


 


Reference
is made to that certain Credit Agreement dated as of September 30, 2010,
as amended, restated, supplemented or otherwise modified to the date hereof
(said Credit Agreement, as so amended, restated, supplemented or otherwise
modified, being the “Credit Agreement”,
the terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the
financial institutions listed therein as Lenders (“Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (“Administrative Agent”).


 


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


 


1.                                       Date of
borrowing:                                            ,                              


 


2.                                       Amount of
borrowing:  $                                        


 


3.                                       Comprised of:


 




	
  Bid Loan No.

  	
   

  	
  Interest Period

  offered

  	
   

  	
  Bid Maximum

  	
   

  	
  Absolute Rate

  Bid

  or Eurodollar

  Margin Bid*

  	
   

  
	
  1

  	
   

  	
                            days/mos

  	
   

  	
  $

  	
   

  	
   

  	
  (-
  +)                                 

  	
  %

  
	
  2

  	
   

  	
                            days/mos

  	
   

  	
  $

  	
   

  	
   

  	
  (-
  +)                                 

  	
  %

  
	
  3

  	
   

  	
                            days/mos

  	
   

  	
  $

  	
   

  	
   

  	
  (-
  +)                                 

  	
  %

  






 






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


 


 


IB-1

















 




	
  Contact
  Person:

  	
                                               

  	
   

  	
  Telephone:

  	
                                            .

  






 


	
   

  	
   

  	
  [LENDER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


 


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


 


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


 


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


 




	
  Bid Loan No.

  	
   

  	
  Principal Amount Accepted

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  






 


	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


IB-2

















 


EXHIBIT II


 


[FORM OF] NOTICE OF CONVERSION/CONTINUATION


 


Pursuant
to that certain Credit Agreement dated as of September 30, 2010, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the
terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the
financial institutions listed therein as Lenders, and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Administrative Agent (“Administrative
Agent”), this represents Company’s request to convert or continue
Loans as follows:


 


1.                                       Date of
conversion/continuation: 
                                    ,                       


 


2.                                       Amount of Loans
being converted/continued: 


$                                                    


 


3.                                       Nature of
conversion/continuation:


 


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


 


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


 


o c.                        Continuation of
Eurodollar Rate Loans as such


 


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


 


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


 


	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


II-1

















 


EXHIBIT III


 


[FORM OF] REQUEST FOR ISSUANCE


 


Pursuant
to that certain Credit Agreement dated as of September 30, 2010, as
amended, restated, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, restated, supplemented or otherwise modified,
being the “Credit Agreement”, the
terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware
corporation (“Company”), the
financial institutions listed therein as Lenders, and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Administrative Agent (“Administrative
Agent”), this represents Company’s request for the issuance of a
Letter of Credit by Administrative Agent as follows:


 


1.                                       Issuing Lender:             Administrative Agent


 


[                                                                  ]


 


2.                                       Date of
issuance of Letter of Credit: 
                                ,                         


 


3.                                       Face amount of
Letter of Credit:  $                                                          


 


4.                                       Expiration date
of Letter of Credit: 
                                ,                            


 


5.                                       Name and
address of beneficiary:


 


                                                                                                              


                                                                                                              


                                                                                                              


                                                                                                              


 


6.                                       Attached hereto
is:


 


o                                    the verbatim
text of such proposed Letter of Credit


 


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


 


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


 


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


 


III-1

















 


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


 


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


 


	
  DATED:

  	
   

  	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


III-2
















 


EXHIBIT IV


 


[FORM OF] REVOLVING NOTE


 


AMERIPRISE FINANCIAL, INC.


 


	
  $                                          (1)

  	
   

  	
                                            (2)

  
	
   

  	
   

  	
  [Issuance date]

  



 


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


 


Company
also promises to pay interest on the unpaid principal amount hereof, until paid
in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Credit Agreement dated as of September 30,
2010 by and among Company, the financial institutions listed therein as
Lenders, and Wells Fargo Bank, National Association, as Administrative Agent
(said Credit Agreement, as it may be amended, restated, supplemented or
otherwise modified from time to time, being the “Credit Agreement”, the terms defined therein and not
otherwise defined herein being used herein as therein defined).


 


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


 


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


 






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


(2)          Insert place of delivery of
Note.


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


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


 


IV-1

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


[Remainder of page intentionally left blank.]


 


IV-2

















 


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


 


	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


IV-3

















 


TRANSACTIONS


ON


REVOLVING NOTE


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  This Date

  	
   

  	
  Amount of

  Loan Made

  This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


IV-4

















 


EXHIBIT V


 


[FORM OF] SWING LINE NOTE


 


AMERIPRISE FINANCIAL, INC.


 


	
  $                                          (1)

  	
   

  	
                                            (2)

  
	
   

  	
   

  	
  [Issuance date]

  



 


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


 


Company
also promises to pay interest on the unpaid principal amount hereof, until paid
in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Credit Agreement dated as of September 30,
2010 by and among Company, the financial institutions listed therein as
Lenders, and Wells Fargo Bank, National Association, as Administrative Agent
(said Credit Agreement, as it may be amended, restated, supplemented or
otherwise modified from time to time, being the “Credit Agreement”, the terms defined therein and not
otherwise defined herein being used herein as therein defined).


 


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


 


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


 


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


 


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


 


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


 






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


(2)          Insert place of delivery of
Note.


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


 


V-1

















 


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


 


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


 


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


 


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


 


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


 


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


 


[Remainder of page intentionally left blank.]


 


V-2

















 


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


 


	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


V-3

















 


TRANSACTIONS


ON


SWING LINE NOTE


 


	
  Date

  	
   

  	
  Amount of

  Loan Made

  This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


V-4

















 


EXHIBIT VI


 


[FORM OF] COMPLIANCE CERTIFICATE


 


THE
UNDERSIGNED HEREBY CERTIFY THAT:


 


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


 


(2)           We have reviewed the terms of that
certain Credit Agreement dated as of September 30, 2010, as amended,
restated, supplemented or otherwise modified to the date hereof (said Credit
Agreement, as so amended, restated, supplemented or otherwise modified, being
the “Credit Agreement”, the terms
defined therein and not otherwise defined in this Certificate (including
Attachment No. 1 annexed hereto and made a part hereof) being used in this
Certificate as therein defined), by and among Company, the financial
institutions listed therein as Lenders, and Wells Fargo Bank, National
Association, as Administrative Agent, and we have made, or have caused to be
made under our supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting period
covered by the attached financial statements;


 


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


 


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


 


                                                                                                                                                                                                        ].


 


VI-1

















 


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


 


	
   

  	
  AMERIPRISE FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


VI-2
















 


ATTACHMENT NO. 1

TO COMPLIANCE CERTIFICATE


 


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


 


	
  A.

  	
   

  	
  Minimum Consolidated Net Worth (as of
                            ,         )

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Total
  Equity:

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  2.

  	
  Shareholder’s
  Equity of VIEs:

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  3.

  	
  Appropriated
  Retained Earnings of VIEs:

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  4.

  	
  Unrealized
  Gain/Loss in AOCI:

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  5.

  	
  Consolidated
  Net Worth (1-2-3-4):

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  6.

  	
  Minimum
  amount permitted under subsection 7.4B:

  	
   

  	
  $

  	
  6,891,000,000

  	
   

  
	
   

  	
   

  	
  Compliance (Yes/No)

  	
   

  	
                              

  	
   

  



 


	
  B.

  	
   

  	
  Maximum Leverage Ratio (as of
                            ,         )

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.

  	
  Indebtedness
  of Company and its Subsidiaries:

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  8.

  	
  Repo
  Agreements:

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  9.

  	
  FHLB
  Obligations:

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  10.

  	
  Recourse
  Indebtedness of VIEs::

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  11.

  	
  Consolidated
  Total Debt (7-8-9+10):

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  12.

  	
  Consolidated
  Total Capitalization (5+11):

  	
   

  	
  $

  	
                              

  	
   

  
	
   

  	
   

  	
  13.

  	
  Consolidated
  Leverage Ratio (11/12):

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  14.

  	
  Maximum
  Consolidated Leverage Ratio permitted under subsection 7.4A:

  	
   

  	
  40

  	
  %

  
	
   

  	
   

  	
  Compliance (Yes/No)

  	
   

  	
   

  	
   

  



 


VI-3

















 


EXHIBIT VII


 


[FORM OF] ASSIGNMENT AND ASSUMPTION AGREEMENT


 


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


 


For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by Administrative
Agent as contemplated below, the interest in and to all of the Assignor’s
rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and
percentage interest identified below of all of the Assignor’s outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, letters of credit
and swingline loans) (the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment, without
representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
                                                              

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
                                                              [and
  is an Affiliate/Approved Fund(8)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Company:

  	
   

  	
  Ameriprise
  Financial, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit
  Agreement

  	
   

  	
  Credit
  Agreement dated as of September 30, 2010 among Company, the Lenders
  parties thereto, Wells Fargo Bank, National Association, as Administrative
  Agent, and the other agents parties thereto

  



 






(8)          Select as applicable.


 

















 


6.             Assigned Interest:


 


	
  Facility Assigned

  	
   

  	
  Aggregate

  Amount of

  Commitment/Loans

  for all Lenders

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage

  Assigned of

  Commitment/Loans(9)

  	
   

  
	
  Revolving
  Loan Commitment

  	
   

  	
  $

  	
                            

  	
   

  	
  $

  	
                            

  	
   

  	
                            

  	
  %

  
										



 


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


 


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


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Consented
  to and Accepted:

  	
   

  
	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  	
   

  
	
  as Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented
  to:]

  	
   

  
	
  AMERIPRISE
  FINANCIAL, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






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


 

















 


ANNEX 1


 


AMERIPRISE FINANCIAL, INC.


STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT


AND ASSUMPTION AGREEMENT


 


1.             Representations and Warranties.


 


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


 


1.2           Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under
the Credit Agreement, (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement and, to the extent of the
Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies
of the most recent financial statements delivered pursuant to subsection 6.1
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and to purchase the Assigned Interest on the basis of which it
has made such analysis and decision, and (v) if it is a Non-US Lender,
attached to the Assignment is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and
without reliance on Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


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


 

















 


Effective
Date and to the Assignee for amounts which have accrued from and after the
Effective Date.(10)


 


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


 






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


 

















 


SCHEDULE 1.1


SIGNIFICANT SUBSIDIARIES


 


	
  Subsidiary Name

  	
   

  	
  Jurisdiction of

  Incorporation

  
	
   

  	
   

  	
   

  
	
  Ameriprise
  Bank, FSB

  	
   

  	
  New
  York

  
	
  Ameriprise
  Certificate Company

  	
   

  	
  Delaware

  
	
  AMPF
  Holding Corporation

  	
   

  	
  Michigan

  
	
  American Enterprise Investment Services Inc.

  	
   

  	
  Minnesota

  
	
  Ameriprise Financial Services, Inc.

  	
   

  	
  Delaware

  
	
  IDS
  Property Casualty Insurance Company

  	
   

  	
  Wisconsin

  
	
  Columbia
  Management Investment Advisors, LLC

  	
   

  	
  Minnesota

  
	
  RiverSource
  Life Insurance Company

  	
   

  	
  Minnesota

  
	
  RiverSource Life Insurance Co. of New York

  	
   

  	
  New
  York

  
	
  Threadneedle
  Asset Management Holdings Sarl

  	
   

  	
  Luxembourg

  
	
  TAM UK Holdings Limited

  	
   

  	
  United
  Kingdom

  
	
  Threadneedle Pensions Ltd.

  	
   

  	
  United
  Kingdom

  



 

















 


SCHEDULE 1.2


EXISTING LETTERS OF CREDIT


 


	
  Wells Fargo LC Ref. #

  	
   

  	
  Amount

  	
   

  	
  Expiry Date

  	
   

  	
  Beneficiary

  
	
  NZS560502

  	
   

  	
  $

  	
  500,000

  	
   

  	
  09/25/2011

  	
   

  	
  Various AIG insurance subsidiaries

  
	
  NZS583227

  	
   

  	
  $

  	
  950,000

  	
   

  	
  10/31/2010

  	
   

  	
  Sentry Insurance

  
	
  NZS568906

  	
   

  	
  $

  	
  300,000

  	
   

  	
  04/10/2011

  	
   

  	
  Travelers Indemnity Co.

  



 

















 


SCHEDULE 2.1


LENDERS’ COMMITMENTS AND PRO RATA SHARES


 


	
   

  	
   

  	
  Commitment/Pro Rata Share

  	
   

  
	
  Lender

  	
   

  	
  $

  	
   

  	
  %

  	
   

  
	
  Wells
  Fargo Bank, National Association

  	
   

  	
  $

  	
  62,500,000

  	
   

  	
  12.5

  	
  %

  
	
  Bank
  of America, N.A.

  	
   

  	
  62,500,000

  	
   

  	
  12.5

  	
  %

  
	
  JPMorgan
  Chase Bank, N.A.

  	
   

  	
  45,000,000

  	
   

  	
  9.0

  	
  %

  
	
  Credit
  Suisse AG, Cayman Islands Branch

  	
   

  	
  45,000,000

  	
   

  	
  9.0

  	
  %

  
	
  HSBC
  Bank USA, National Association

  	
   

  	
  45,000,000

  	
   

  	
  9.0

  	
  %

  
	
  Barclays
  Bank PLC

  	
   

  	
  35,000,000

  	
   

  	
  7.0

  	
  %

  
	
  Goldman
  Sachs Bank USA

  	
   

  	
  35,000,000

  	
   

  	
  7.0

  	
  %

  
	
  Morgan
  Stanley Bank, N.A.

  	
   

  	
  35,000,000

  	
   

  	
  7.0

  	
  %

  
	
  U.S.
  Bank National Association

  	
   

  	
  35,000,000

  	
   

  	
  7.0

  	
  %

  
	
  The
  Bank of New York Mellon

  	
   

  	
  25,000,000

  	
   

  	
  5.0

  	
  %

  
	
  BNP
  Paribas

  	
   

  	
  25,000,000

  	
   

  	
  5.0

  	
  %

  
	
  Societe
  Generale

  	
   

  	
  25,000,000

  	
   

  	
  5.0

  	
  %

  
	
  UBS
  Loan Finance LLC

  	
   

  	
  25,000,000

  	
   

  	
  5.0

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  500,000,000

  	
   

  	
  100.0

  	
  %

  



 


 

















 


SCHEDULE 5.6


LITIGATION


 


John
E. Gallus et al. v. American Express Financial Corp. and American Express
Financial Advisors Inc.


 


The
above-referenced case was filed in 2004 in the United States District Court for
the District of Arizona and later transferred to the United States District
Court for the District of Minnesota. The plaintiffs alleged that they were
investors in several of the Company’s mutual funds and they purported to bring
the action derivatively on behalf of those funds under the Investment Company
Act of 1940 (the ‘40 Act). The plaintiffs alleged that fees paid to the
defendants by the funds for investment advisory and administrative services
were excessive and sought unspecified damages, including disgorgement of the
allegedly excessive fees paid plus interest and other costs. On July 6,
2007, the Court granted the Company’s motion for summary judgment, dismissing
all claims with prejudice. Plaintiffs appealed the Court’s decision, and on
April 8, 2009, the U.S. Court of Appeals for the Eighth Circuit reversed
the district court’s decision, and remanded the case for further proceedings.
The Company filed with the United States Supreme Court a Petition for Writ of
Certiorari to review the judgment of the Court of Appeals in this case in light
of the Supreme Court’s anticipated review, of a similar excessive fee case
captioned Jones v. Harris Associates. On March 30, 2010, the Supreme Court
issued its ruling in Jones v. Harris Associates, and on April 5, 2010, the
Supreme Court vacated the Eighth Circuit’s decision in this case and remanded
it to the Eighth Circuit for further consideration in light of the Supreme
Court’s decision in Jones v. Harris Associates. On June 4, 2010, the
Eighth Circuit remanded the case to the district court for further
consideration in light of the Supreme Court’s decision in Jones v. Harris
Associates. The district court has received briefs and heard oral argument on
the impact of the Jones v. Harris Associates decision.  The district court plans to issue a decision
in early- to mid-November.


 


In
re Medical Capital and Provident Shale


 


In
July 2009, two issuers of private placement interests (Medical Capital
Holdings, Inc./Medical Capital Corporation and affiliated corporations and
Provident Shale Royalties, LLC and affiliated corporations) sold by the Company’s
subsidiary Securities America, Inc. (“SAI”) were placed into receivership,
which has resulted in the filing of several putative class action lawsuits and
numerous arbitrations naming both SAI and Ameriprise Financial as well as
related regulatory inquiries and actions. The putative class actions and arbitrations
generally allege violations of state and/or federal securities laws in
connection with SAI’s sales of these private placement interests. These actions
were commenced in September 2009 and thereafter, and seek unspecified
damages. On January 26, 2010, the Commonwealth of Massachusetts filed an
Administrative Complaint against SAI, and on February 16, 2010, SAI filed
an Answer. At this time, an Administrative Hearing in this matter has been
scheduled to commence on September 30, 2010.  On June 22,
2010, the Liquidating Trustee of the Provident Liquidating Trust filed an
adversary action in the Provident bankruptcy proceeding naming SAI on behalf of
both the Provident Liquidating Trust and a number of individual Provident
investors who are 


 

















 


alleged
to have assigned their claims. The action by the Liquidating Trustee generally
alleges the same types of claims as are alleged in the class actions as well as
a claim under the Bankruptcy Code.


 


*   *   *


 


These
legal and regulatory proceedings and disputes are subject to uncertainties and,
as such, the Company is unable to estimate the possible loss or range of loss
that may result.


 
















 


SCHEDULE 7.1


CERTAIN EXISTING LIENS


As of September 8, 2010


 


CERTAIN EXISTING LIENS


As of September 8, 2010


 


UCC Financing Statements filed against Company


 


	
  Jurisdiction

  	
   

  	
  Secured Party

  	
   

  	
  Filing No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Lien Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delaware Secretary of State

  	
   

  	
  General Electric Capital Corporation

  	
   

  	
  52997824

  	
   

  	
  09/28/05

  	
   

  	
  True Lease:
  Precautionary filing to perfect Red Line Air, LLC’s interest in Gulf Stream
  Model G-IV, FAA Reg No. 677RWand (2) Rolls Royce Engines, together
  with all other property essential and appropriate to the operation of the
  Aircraft

  
	
  Delaware Secretary of State

  	
   

  	
  Pitney Bowes Credit Corporation

  	
   

  	
  53093979

  	
   

  	
  10/06/05

  	
   

  	
  All
  equipment of whatever nature manufactured, sold, distributed or financed by
  Pitney Bowes Inc. and all proceeds therefrom

  
	
  Delaware Secretary of State

  	
   

  	
  OCE Financial Services, Inc.

  	
   

  	
  53699932

  	
   

  	
  12/01/05

  	
   

  	
  The
  equipment covered under equipment purchase order #16782: Model VS76501 and
  VS76502, together with all peripherals, accessions and attachments.
  Precautionary filing in connection with a true lease

  
	
  Delaware Secretary of State

  	
   

  	
  US Bancorp

  	
   

  	
  61289826

  	
   

  	
  04/18/06

  	
   

  	
  Lease
  #594716: Copiers

  
	
  Delaware Secretary of State

  	
   

  	
  OCE Financial Services, Inc.

  	
   

  	
  63353489

  	
   

  	
  09/28/06

  	
   

  	
  The equipment covered under equipment
  purchase order #20215: Model VS76501 and VS76502, together with all
  peripherals, accessions and attachments. Precautionary filing in connection
  with a true lease

  



 

















 


	
  Delaware Secretary of State

  	
   

  	
  Pitney Bowes Global Financial Services, LLC

  	
   

  	
  64230439

  	
   

  	
  12/05/06

  	
   

  	
  All
  equipment of whatever nature manufactured, sold, distributed or financed by
  Pitney Bowes Inc. and all proceeds therefrom

  
	
  Delaware Secretary of State

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  64280624

  	
   

  	
  12/07/06

  	
   

  	
  Pursuant to
  contract 004-2250999-000 (398027) 1 Ricoh Copier MPF2500SPF L3665700820

  
	
  Delaware Secretary of State

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  2007 0264324

  	
   

  	
  01/22/07

  	
   

  	
  Pursuant to
  contract 002-2260143-000 (398027) 1 Toshiba Copier Esudio 2021 CQJ616608

  
	
  Delaware Secretary of State

  	
   

  	
  NCR Corporation

  	
   

  	
  2007 1293975

  	
   

  	
  04/06/07

  	
   

  	
  All
  products, including without limitations, equipment, components, software,
  deliverables and supplies, whether now or hereafter acquired and all proceeds

  
	
  Delaware Secretary of State

  	
   

  	
  Cisco Systems Capital Corporation

  	
   

  	
  2008 0364248

  	
   

  	
  01/30/08

  	
   

  	
  Lease: all right, title and interest, now
  existing and hereafter arising in and to: all Equipment in connection with
  any Master Agmt; all insurance, warranty, claims and rights to payment
  arising out of such Equipment; all books, records and proceeds relating to
  the foregoing. Equipment shall be defined as routers, router components,
  other computer networking and telecommunications equipment and other
  equipment manufactured by Cisco Systems, Inc., together with all
  software and substitutions. Some or all of the transactions that are subject
  to this financing statement may be intended to be true leases, to which
  extent this filings is intended as a precautionary filing

  



 

















 


	
  Delaware Secretary of State

  	
   

  	
  GreatAmerica Leasing Corporation

  	
   

  	
  2009 3137244

  	
   

  	
  09/30/09

  	
   

  	
  Various
  Sharp copiers, printers, faxes and accessories and all products, proceeds and
  attachments. Lease transaction.

  
	
  Minnesota Secretary of State

  	
   

  	
  OCE Financial Services, Inc.

  	
   

  	
  200814097178

  	
   

  	
  12/04/08

  	
   

  	
  The
  equipment covered under trial agreement contract #75916: (7) Models
  together with all peripherals, accessions and attachments. Precautionary
  filing in connection with a true lease

  
	
  Minnesota Secretary of State

  	
   

  	
  OCE Financial Services, Inc.

  	
   

  	
  200914511752

  	
   

  	
  01/09/09

  	
   

  	
  The
  equipment covered under equipment purchase order #38754: (1) Model
  together with all peripherals, accessions and attachments. Precautionary
  filing in connection with a true lease

  
	
  Minnesota Secretary of State

  	
   

  	
  Bennett Office Technologies Inc. and
  Heritage Bank N.A.

  	
   

  	
  200915111422

  	
   

  	
  02/26/09

  	
   

  	
  Specific leased equipment

  



 

















 


UCC
Financing Statements filed against Ameriprise Financial Services, Inc.


 


	
  Jurisdiction

  	
   

  	
  Secured Party

  	
   

  	
  Filing No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Lien Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delaware Secretary of State

  	
   

  	
  OCE North America, Inc.

  	
   

  	
  62089837

  	
   

  	
  06/19/06

  	
   

  	
  The equipment covered under trial agreement
  #T513887 including (1) C-Twin and Production Graphics upgrade to
  Océ VarioPrint 7650; and all accessions

  
	
  Delaware Secretary of State

  	
   

  	
  General Electric Capital Corporation

  	
   

  	
  63653672

  	
   

  	
  10/20/06

  	
   

  	
  All
  Equipment, described herein or otherwise, leased to or financed under that
  certain Snap Master Rental Schedule No. 7438274-028 including all
  accessories

  
	
  Delaware Secretary of State

  	
   

  	
  US Bancorp

  	
   

  	
  64013660

  	
   

  	
  11/16/06

  	
   

  	
  Leased
  Aficio Copier

  
	
  Delaware Secretary of State

  	
   

  	
  US Bancorp

  	
   

  	
  2007 4890058

  	
   

  	
  12/28/07

  	
   

  	
  Informational
  Filing: 1 PS 3; 1 PS 3

  
	
  Delaware Secretary of State

  	
   

  	
  Falcon Leasing, LLC

  	
   

  	
  2008 0233013

  	
   

  	
  01/18/08

  	
   

  	
  Specific
  leased equipment

  
	
  Delaware Secretary of State

  	
   

  	
  General Electric Capital Corporation

  	
   

  	
  2008 1362217

  	
   

  	
  04/18/08

  	
   

  	
  All
  Equipment, described herein or otherwise, leased to or financed under that
  certain Purchase Order Only Deal No. 7438274-061 including all
  accessories

  
	
  Delaware Secretary of State

  	
   

  	
  General Electric Capital Corporation

  	
   

  	
  2008 1733151

  	
   

  	
  05/20/08

  	
   

  	
  All
  Equipment, described herein or otherwise, leased to or financed under that
  certain Purchase Order Only Deal No. 7438274-078 including all
  accessories

  
	
  Delaware Secretary of State

  	
   

  	
  US Bancorp

  	
   

  	
  2008 2761359

  	
   

  	
  08/13/08

  	
   

  	
  Informational
  Filing: 1 C650 00H010001959

  
	
  Delaware Secretary of State

  	
   

  	
  US Express Leasing, Inc.

  	
   

  	
  2008 3459896

  	
   

  	
  10/14/08

  	
   

  	
  All items of
  personal property leased pursuant to that certain Monthly Payment Agmt dtd
  9/22/08, together with all related software, all additions and any and all
  substitutions. Sharp copiers

  
	
  Delaware Secretary of State

  	
   

  	
  US Bancorp

  	
   

  	
  2008 4336135

  	
   

  	
  12/31/08

  	
   

  	
  Informational
  Filing: (4) IR C5185I

  
	
  Delaware Secretary of State

  	
   

  	
  US Bancorp

  	
   

  	
  2009 0385093

  	
   

  	
  02/04/09

  	
   

  	
  Informational
  Filing: (2) 55PPM; (1) 45PPM

  
	
  Delaware Secretary of State

  	
   

  	
  Bankers Leasing Company

  	
   

  	
  2010 1824758

  	
   

  	
  05/25/10

  	
   

  	
  Lease: 1 KM Bizhub B280 Color Copier with
  accessories

  



 

















 


UCC
Financing Statements filed against J. & W. Seligman & Co.
Incorporated


 


	
  Jurisdiction

  	
   

  	
  Secured Party

  	
   

  	
  Filing No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Lien Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delaware Secretary of State

  	
   

  	
  Canon Business Solutions-East, Inc.

  	
   

  	
  53683985

  	
   

  	
  11/30/05

  	
   

  	
  Leased Canon
  Copiers and Faxes

  
	
  Delaware Secretary of State

  	
   

  	
  Canon Business Solutions-East, Inc.

  	
   

  	
  61139278

  	
   

  	
  04/05/06

  	
   

  	
  Leased Canon
  Copiers

  
	
  Delaware Secretary of State

  	
   

  	
  Canon Business Solutions-East, Inc.

  	
   

  	
  2007 1994093

  	
   

  	
  05/29/07

  	
   

  	
  Leased Canon
  Image Reader

  
	
  Delaware Secretary of State

  	
   

  	
  Canon Business Solutions-NorthEast, Inc.

  	
   

  	
  2008 0001758

  	
   

  	
  01/02/08

  	
   

  	
  Specific
  leased equipment

  
	
  Delaware Secretary of State

  	
   

  	
  Dell Financial Services L.P.

  	
   

  	
  2008 0782498

  	
   

  	
  03/04/08

  	
   

  	
  Leased
  computer equiment and peripherals pursuant to the Revolving Credit Account
  dtd 2/29/08 and all right, title and interest in and to use any software and
  services

  
	
  Delaware Secretary of State

  	
   

  	
  Canon Financial Services

  	
   

  	
  2008 2828992

  	
   

  	
  08/19/08

  	
   

  	
  All
  equipment now or hereafter leased, sold or financed by Canon Financial, and
  all general intangibles and accounts receivable with respect to said
  equipment and all replacements

  
	
  New York Secretary of State

  	
   

  	
  Canon Financial Services

  	
   

  	
  2006-06015535258

  	
   

  	
  06/01/06

  	
   

  	
  All
  equipment now or hereafter leased, sold or financed by Canon Financial, and
  all general intangibles and accounts receivable with respect to said
  equipment and all replacements

  
	
  New York Secretary of State

  	
   

  	
  Canon Financial Services

  	
   

  	
  2008-01025005124

  	
   

  	
  01/02/08

  	
   

  	
  All
  equipment now or hereafter leased, sold or financed by Canon Financial, and
  all general intangibles and accounts receivable with respect to said
  equipment and all replacements

  
	
  New York Secretary of State

  	
   

  	
  Canon Financial Services

  	
   

  	
  2008-03065249475

  	
   

  	
  03/06/08

  	
   

  	
  All equipment now or hereafter leased, sold
  or financed by Canon Financial, and all general intangibles and accounts
  receivable with respect to said equipment and all replacements

  



 

















 


State Tax
Liens filed against RiverSource Life Insurance Co. of New York


 


	
  Jurisdiction

  	
   

  	
  Secured Party

  	
   

  	
  Filing No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Lien Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New York Secretary of State

  	
   

  	
  New York Department of State

  	
   

  	
  E-015947383-W003-9

  	
   

  	
  12/23/08

  	
   

  	
  Tax Warrant
  Notice in the amount of $185,634.02; Vacate date 2/5/09

  
	
  New York Secretary of State

  	
   

  	
  New York Department of State

  	
   

  	
  E-015947383-W004-4

  	
   

  	
  03/16/10

  	
   

  	
  Tax Warrant Notice in the amount of
  $5,325.20; Satisfied date 7/29/10

  



 


State Tax
Liens filed against RiverSource Fund Distributors, Inc.


 


	
  Jurisdiction

  	
   

  	
  Secured Party

  	
   

  	
  Filing No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Lien Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New York Secretary of State

  	
   

  	
  New York Department of State

  	
   

  	
  E-003529008-W003-3

  	
   

  	
  01/27/10

  	
   

  	
  Tax Warrant
  Notice in the amount of $329.87

  
	
  New York County, New York

  	
   

  	
  NY State Dept of Taxation and Finance

  	
   

  	
  002654808-01

  	
   

  	
  01/26/10

  	
   

  	
  Tax Warrant Notice in the amount of $329.87

  



 


UCC
Financing Statements filed against Securities America Financial Corporation


 


	
  Jurisdiction

  	
   

  	
  Secured Party

  	
   

  	
  Filing No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Lien Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nebraska Secretary of State

  	
   

  	
  National City Commercial Capital Company,
  LLC

  	
   

  	
  9807336098-9

  	
   

  	
  03/15/07

  	
   

  	
  Leased Full License & Service

  



 


UCC Financing Statements filed against IDS Property Casualty Insurance
Company


 


	
  Jurisdiction

  	
   

  	
  Secured Party

  	
   

  	
  Filing No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Lien Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wisconsin Department of Financial
  Institutions

  	
   

  	
  Associated Bank N.A., United Leasing Associates of America, Ltd.

  	
   

  	
  60007649430

  	
   

  	
  05/18/06

  	
   

  	
  (1) Sharp
  AR-M550N Copier (Lease)

  
	
  Wisconsin Department of Financial
  Institutions

  	
   

  	
  Lakeland Bank, United Leasing Associates of America, Ltd.

  	
   

  	
  60014426421

  	
   

  	
  09/29/06

  	
   

  	
  (1) Sharp
  AR-M550N Copier w/Scanner (Lease)

  



 

















 


	
  Wisconsin Department of Financial
  Institutions

  	
   

  	
  Associated Bank N.A., United Leasing Associates of America, Ltd.

  	
   

  	
  80009516728

  	
   

  	
  07/03/08

  	
   

  	
  All
  equipment included in Lease dtd 6/27/08: (10) Sharp MX-M550N Copiers,
  MX-NSX1 Network Scanner Expansion Kit, MX-PKX1 Postscript 3 Expansion Kit

  
	
  Wisconsin Department of Financial
  Institutions

  	
   

  	
  United Leasing Associated of America, Ltd.

  	
   

  	
  90002080616

  	
   

  	
  02/18/09

  	
   

  	
  (2) Sharp
  MXM 550 Copiers, (1) Sharp MSM 350 Copier, (2) ARF-15 Finishers,
  (1) ARFN-6 Finisher. Lease No. 40050109

  
	
  Wisconsin Department of Financial
  Institutions

  	
   

  	
  Associated Bank N.A., United Leasing
  Associates of America, Ltd.

  	
   

  	
  90005295728

  	
   

  	
  04/29/09

  	
   

  	
  (2) Sharp MXM 550 Copiers,
  (1) Sharp MSM 350 Copier. Lease No. 40050109

  



 

















 


SCHEDULE 10.8


 


NOTICE ADDRESSES


 


If to Company:


 


Ameriprise Financial, Inc.


73 Ameriprise Financial Center


Minneapolis, MN 55474


Attention: Daniel J. Murtha


Telephone:  612-671-1175


Facsimile:  612-337-6012


Email: daniel.j.murtha@ampf.com


 


with a copy to:


 


Ameriprise Financial, Inc.


1099 Ameriprise Financial Center


Minneapolis, MN 55474


Attention:  David H. Weiser, Esq.


Telephone:  612-671-1788


Facsimile:  612-678-0081


Email:  david.h.weiser@ampf.com


 


If to Administrative Agent, Swing Line Lender or Issuing Lender:


 


Wells Fargo Agency Services


201 Third Street, 11th Floor


MAC Mail A0187-110


San Francisco, CA 94103


Attention:  Debby Moore, Deal
Administrator


Telephone:  415-477-5379


Facsimile:  415-546-6353


Email:  mooredj@wellsfargo.com


 


with a copy to:


 


Wells Fargo Corporate Banking


301 South College Street


Charlotte, NC  28288


Attention:  Karen Hanke, Director


Telephone:  704-374-3061


Facsimile:  704-715-1486


Email:  karen.hanke@wachovia.com