exv10w1






Exhibit 10.1




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of January 26, 2011



among



THE MEN’S WEARHOUSE, INC.



The Subsidiary Borrowers Party Hereto



The Lenders Party Hereto



JPMORGAN CHASE BANK, N.A.

as Administrative Agent



JPMORGAN CHASE BANK, N.A., TORONTO BRANCH

as Canadian Agent



J.P. MORGAN EUROPE LIMITED

as European Agent



U.S. BANK NATIONAL ASSOCIATION



as Syndication Agent



UNION BANK, N.A.



as Documentation Agent



BANK OF AMERICA, N.A.



and



U.S. BANK NATIONAL ASSOCIATION

as Co-Agents



 





J.P. MORGAN SECURITIES, LLC



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED



and



U.S. BANK NATIONAL ASSOCIATION

as Co-Lead Arrangers and Joint Bookrunners



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TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I
	 	CERTAIN DEFINITIONS	 	 	2	 
	1.1.
	 	Certain Defined Terms	 	 	2	 
	1.2.
	 	Classification of Loans and Borrowings	 	 	37	 
	1.3.
	 	Terms Generally	 	 	38	 
	1.4.
	 	Exchange Rates; Currency	 	 	38	 
	1.5.
	 	Accounting Principles	 	 	38	 
	1.6.
	 	Redenomination of Certain Foreign Currencies	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	THE CREDITS	 	 	40	 
	2.1.
	 	The Revolving Loans	 	 	40	 
	2.2.
	 	Loans and Borrowings	 	 	41	 
	2.3.
	 	Borrowing Procedure	 	 	42	 
	2.4.
	 	Alternative Currency Loans	 	 	43	 
	2.5.
	 	Funding of Borrowings	 	 	47	 
	2.6.
	 	Swingline Loans	 	 	48	 
	2.7.
	 	Letters of Credit	 	 	50	 
	2.8.
	 	Conflict between Applications and Agreement	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	INTEREST RATE PROVISIONS	 	 	60	 
	3.1.
	 	Interest Rate Determination	 	 	60	 
	3.2.
	 	Increased Cost and Reduced Return	 	 	65	 
	3.3.
	 	Limitation on Types of Loans	 	 	68	 
	3.4.
	 	Illegality	 	 	69	 
	3.5.
	 	Compensation	 	 	70	 
	3.6.
	 	Replacement of Lenders	 	 	71	 
	3.7.
	 	Yearly Rate	 	 	72	 
	3.8.
	 	Survival	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	PREPAYMENTS AND OTHER PAYMENTS; REDUCTION AND EXPANSION OF COMMITMENTS	 	 	72	 
	4.1.
	 	Repayment of Loans; Evidence of Debt	 	 	72	 
	4.2.
	 	Required Prepayments	 	 	73	 
	4.3.
	 	Optional Prepayments	 	 	73	 
	4.4.
	 	No Prepayment Premium or Penalty	 	 	74	 
	4.5.
	 	Payments and Prepayments	 	 	74	 
	4.6.
	 	Sharing of Set-offs	 	 	76	 
	4.7.
	 	Defaulting Lenders	 	 	77	 
	4.8.
	 	Taxes	 	 	79	 
	4.9.
	 	Reduction and Termination of Commitments	 	 	84	 






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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	4.10.
	 	Repayment in Connection with Commitment Reductions, Certain Currency Exchange Fluctuations and on Maturity Date
	 	 	84	 
	4.11.
	 	Increase of the Commitments	 	 	85	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	FEES	 	 	88	 
	5.1.
	 	Commitment Fee	 	 	88	 
	5.2.
	 	Arrangement Fee	 	 	88	 
	5.3.
	 	Administrative Agency Fees	 	 	88	 
	5.4.
	 	Letter of Credit Fees	 	 	89	 
	5.5.
	 	Fees Not Interest; Nonpayment	 	 	89	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	APPLICATION OF PROCEEDS	 	 	89	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	REPRESENTATIONS AND WARRANTIES	 	 	90	 
	7.1.
	 	Organization and Qualification	 	 	90	 
	7.2.
	 	Financial Statements	 	 	90	 
	7.3.
	 	Litigation	 	 	90	 
	7.4.
	 	Title to Properties	 	 	90	 
	7.5.
	 	Payment of Taxes	 	 	90	 
	7.6.
	 	Conflicting Agreements or Restrictions	 	 	91	 
	7.7.
	 	Authorization, Validity, Etc.	 	 	91	 
	7.8.
	 	Investment Company Act Not Applicable	 	 	91	 
	7.9.
	 	Margin Stock	 	 	91	 
	7.10.
	 	ERISA; Foreign Benefit and Pension Plans	 	 	91	 
	7.11.
	 	Full Disclosure	 	 	92	 
	7.12.
	 	Permits and Licenses	 	 	92	 
	7.13.
	 	Capital Structure	 	 	93	 
	7.14.
	 	Insurance	 	 	93	 
	7.15.
	 	Compliance with Laws	 	 	93	 
	7.16.
	 	Environmental Matters	 	 	94	 
	7.17.
	 	No Consent	 	 	94	 
	7.18.
	 	Anti-Terrorism and Anti-Money Laundering	 	 	94	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	CONDITIONS	 	 	94	 
	8.1.
	 	Closing Date	 	 	94	 
	8.2.
	 	Effect of Amendment and Restatement	 	 	98	 
	8.3.
	 	Conditions to each Loan and Letter of Credit	 	 	98	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	AFFIRMATIVE COVENANTS	 	 	99	 
	9.1.
	 	Reporting and Notice Requirements	 	 	99	 
	9.2.
	 	Corporate Existence	 	 	103	 
	9.3.
	 	Books and Records	 	 	103	 
	9.4.
	 	Insurance	 	 	103	 
	9.5.
	 	Right of Inspection	 	 	103	 
	9.6.
	 	Maintenance of Property	 	 	104	 






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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	9.7.
	 	Guarantees of Certain Restricted Subsidiaries; Pledge Agreements	 	104
	9.8.
	 	Patents, Trademarks and Licenses	 	 	105	 
	9.9.
	 	Taxes; Obligations	 	 	105	 
	9.10.
	 	Compliance with Federal Reserve Regulations	 	 	106	 
	9.11.
	 	Pensions	 	 	106	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	NEGATIVE COVENANTS	 	 	106	 
	10.1.
	 	Liens	 	 	106	 
	10.2.
	 	Debt	 	 	107	 
	10.3.
	 	Restricted Payments	 	 	109	 
	10.4.
	 	Mergers; Consolidations; Sale or
Other Dispositions of All or Substantially All Assets	 	 	109	 
	10.5.
	 	Investments, Loans and Advances	 	 	109	 
	10.6.
	 	Use of Proceeds	 	 	110	 
	10.7.
	 	Transactions with Affiliates	 	 	110	 
	10.8.
	 	Nature of Business	 	 	110	 
	10.9.
	 	Acquisitions	 	 	110	 
	10.10.
	 	Financial Covenants	 	 	111	 
	10.11.
	 	Regulations T, U and X	 	 	111	 
	10.12.
	 	Status	 	 	111	 
	10.13.
	 	Compliance with Laws	 	 	111	 
	10.14.
	 	Unrestricted Subsidiaries	 	 	112	 
	10.15.
	 	Restrictive Agreements	 	 	112	 
	10.16.
	 	Canadian Benefit and Pension Plans	 	 	113	 
	10.17.
	 	OFAC	 	 	113	 
	10.18.
	 	Environmental Matters	 	 	114	 
	 
	 	 	 	 	 	 
	ARTICLE XI
	 	EVENTS OF DEFAULT; REMEDIES	 	 	114	 
	11.1.
	 	Events of Default	 	 	114	 
	11.2.
	 	Collateral Account	 	 	118	 
	11.3.
	 	Remedies Cumulative	 	 	119	 
	 
	 	 	 	 	 	 
	ARTICLE XII
	 	THE AGENTS	 	 	119	 
	12.1.
	 	Authorization and Action	 	 	119	 
	12.2.
	 	Reliance by Agents	 	 	120	 
	12.3.
	 	Agents and Affiliates	 	 	120	 
	12.4.
	 	Lender Credit Decisions	 	 	121	 
	12.5.
	 	Indemnification	 	 	121	 
	12.6.
	 	Employees of the Agents	 	 	122	 
	12.7.
	 	Successor Administrative Agent	 	 	122	 
	12.8.
	 	Notice of Default	 	 	123	 
	12.9.
	 	Execution of Loan Documents	 	 	123	 
	12.10.
	 	No Other Duties, Etc.	 	 	123	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE XIII
	 	MISCELLANEOUS	 	 	124	 
	13.1.
	 	Waivers, Etc.	 	 	124	 
	13.2.
	 	Notices	 	 	124	 
	13.3.
	 	GOVERNING LAW	 	 	127	 
	13.4.
	 	Survival of Representations and Warranties	 	 	127	 
	13.5.
	 	Counterparts; Integration; Electronic Execution	 	 	128	 
	13.6.
	 	Severability	 	 	128	 
	13.7.
	 	Headings	 	 	128	 
	13.8.
	 	Right of Set-off; Adjustments	 	 	128	 
	13.9.
	 	Successors and Assigns	 	 	129	 
	13.10.
	 	Interest	 	 	133	 
	13.11.
	 	Expenses; Indemnification	 	 	134	 
	13.12.
	 	Payments Set Aside	 	 	136	 
	13.13.
	 	Loan Agreement Controls	 	 	137	 
	13.14.
	 	Obligations Several	 	 	137	 
	13.15.
	 	SUBMISSION TO JURISDICTION; WAIVERS	 	 	137	 
	13.16.
	 	WAIVER OF JURY TRIAL	 	 	137	 
	13.17.
	 	Amendments, Waivers and Consents	 	 	138	 
	13.18.
	 	Relationship of the Parties	 	 	139	 
	13.19.
	 	Confidentiality	 	 	140	 
	13.20.
	 	Advertisement	 	 	141	 
	13.21.
	 	Release of Liens and Guarantees	 	 	141	 
	13.22.
	 	Currency Conversion and Currency Indemnity	 	 	142	 
	13.23.
	 	FINAL AGREEMENT	 	 	143	 
	13.24.
	 	USA PATRIOT ACT Notice	 	 	143	 
	13.25.
	 	Anti-Money Laundering Legislation	 	 	144	 
	13.26.
	 	Amendment and Restatement	 	 	144	 
	 
	 	 	 	 	 	 
	ARTICLE XIV
	 	COLLECTION ACTION MECHANISM	 	 	145	 
	14.1.
	 	Implementation of CAM	 	 	145	 






iv









 




EXHIBITS




	 	 	 

	Exhibit A:

	 	Form of Assignment and Assumption
	Exhibit B:

	 	Form of Pledge Agreement
	Exhibit C-1:

	 	Form of Parent Guaranty Agreement
	Exhibit C-2:

	 	Form of Subsidiary Guaranty Agreement
	Exhibit D-1:

	 	Form of Borrower Promissory Note
	Exhibit D-2:

	 	Form of Canadian Promissory Note
	Exhibit D-3:

	 	Form of UK/Euro Promissory Note
	Exhibit D-4:

	 	Form of Swingline Note
	Exhibit E:

	 	Form of Notice of Borrowing
	Exhibit F:

	 	Form of Letter of Credit Request
	Exhibit G:

	 	Form of Notice of Rate Change/Continuation
	Exhibit H:

	 	Form of Notice of Commitment Increase
	Exhibit I:

	 	Form of Compliance Certificate
	Exhibit J:

	 	Form of Applicable Margin Certificate
	Exhibit K:

	 	Mandatory Costs
	Exhibit L:

	 	Form of Joinder Agreement






SCHEDULES




	 	 	 

	Schedule 2.1

	 	Commitments
	Schedule 2.7

	 	Letters of Credit






DISCLOSURE LETTER




	 	 	 

	Disclosure Letter — Section 7.13:

	 	Capital Structure
	Disclosure Letter — Section 7.14:

	 	Insurance
	Disclosure Letter — Section 10.1:

	 	Liens







v









 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT




          The Men’s Wearhouse, Inc., a corporation organized under the laws of the State of Texas
(the “Borrower”); Moores The Suit People Inc., a corporation organized under the laws of
the Province of New Brunswick, Canada (the “Canadian Borrower”), and MWUK Holding Company
Limited, a corporation organized under the 2006 Companies Act of England and Wales (the “UK
Borrower”, and together with the Canadian Borrower, collectively, the “Subsidiary
Borrowers” and individually, a “Subsidiary Borrower”); the financial institutions from
time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”); JPMorgan Chase Bank, N.A., as Administrative Agent; JPMorgan Chase Bank, N.A.,
Toronto Branch, as Canadian Agent; and J.P. Morgan Europe Limited, as European Agent, hereby agree
as follows:




PRELIMINARY STATEMENT




          WHEREAS, the Borrower has received loans and other extensions of
credit pursuant to that certain Amended and Restated Credit Agreement dated as of December 21, 2005
(as heretofore amended, the “Existing Credit Agreement”) by and among the Borrower, the
financial institutions from time to time party thereto and JPMorgan Chase Bank, N.A., as
administrative agent;




          WHEREAS, the Borrower has requested that the Lenders, the Administrative Agent and the Issuing
Banks enter into this Agreement to amend and restate the Existing Credit Agreement;




          WHEREAS, the Borrower has requested (i) the Lenders to make revolving loans to the Borrowers
in an aggregate principal amount not to exceed $200,000,000 at any time outstanding; (ii) the
Issuing Banks to issue letters of credit for the account of the Borrowers, and the Lenders to
acquire participations therein, in an aggregate principal amount not to exceed $40,000,000 at any
time outstanding; and (iii) the Swingline Bank to make Swingline Loans to the Borrower, and the
Lenders to acquire participations therein, in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding;




          WHEREAS, pursuant to the terms and conditions hereof, (i) the Lenders, the Administrative
Agent and the Issuing Banks, in each case, party to the Existing Credit Agreement, have agreed to
amend and restate the Existing Credit Agreement and (ii) the Lenders and the Issuing Banks have
agreed to extend credit to the Borrowers; and




          WHEREAS, the financial institutions identified on Schedule 2.1 which are not party to
the Existing Credit Agreement wish to become “Lenders” hereunder and accept and assume the
obligations of “Lenders” hereunder with the Commitments specified on Schedule 2.1;




          NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree that the Existing Credit Agreement
is amended and restated in its entirety as follows:







 









 








ARTICLE I

CERTAIN DEFINITIONS




          1.1. Certain Defined Terms. As used in this Agreement, and, unless otherwise defined therein,
each exhibit hereto, the following terms shall have the following meanings:




          “Acquisition Target” means any Person acquired pursuant to Section 10.9 and
which is designated a Restricted Subsidiary pursuant to the terms hereof.




          “Acquisitions” has the meaning set forth in Section 10.9.




          “Additional Lender” has the meaning set forth in Section 4.11(a).




          “Adjusted Debt” means, at any date of determination and without duplication, an amount
(if positive) equal to the sum of (i) Total Funded Debt at such date plus (ii) an amount equal to
the product of (A) Base Rent Expense for the four Fiscal Quarters ending on such date times (B) six
(6).




          “Adjusted EURIBO Rate” means with respect to any Eurocurrency Borrowing denominated in
Euro for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1.00%) equal to the sum of (i) the EURIBO Rate for such Interest Period and (ii)
with respect to each applicable Lender, if incurred in connection with such Borrowing, the related
Mandatory Costs and charges, if any, pursuant to Section 3.2(e)(i).




          “Adjusted LIBO Rate” means (a) with respect to any Eurocurrency Borrowing denominated
in US Dollars for any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100th of 1.00%) equal to (i) the LIBO Rate for such Interest Period multiplied by
(ii) the Statutory Reserve Rate and (b) with respect to any Eurocurrency Borrowing denominated in
Sterling, for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100th of 1.00%) equal to the sum of (i) the LIBO Rate for such Interest Period and (ii)
with respect to each applicable Lender, if incurred in connection with such Borrowing, the related
Mandatory Costs and charges, if any, pursuant to Section 3.2(e)(ii).




          “Administrative Agent” means JPMCB in its capacity as administrative agent hereunder,
and its successors in such capacity as provided in Article XII and, as the context may
require, each Applicable Agent.




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




          “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. If any Person shall own, directly or indirectly, beneficially
and of record twenty percent (20%) or more of the equity (whether outstanding capital stock,
partnership interests or otherwise) of another Person, such Person shall be deemed to be an
Affiliate.







2









 








          “Agents” means the Administrative Agent, the European Agent and the Canadian Agent.




          “Agreement” means this Second Amended and Restated Credit Agreement.




          “Agreement Currency” shall have the meaning assigned to such term in Section
13.22(a).




          “Alternate Base Rate” means, for any day, the highest of (a) the Prime Rate in effect
on such day, (b) the Federal Funds Effective Rate in effect on such day, plus 0.50% and (c) the
Adjusted LIBO Rate for an Interest Period of one month in effect on such day, plus 1.00%. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.




          “Alternative Currency” means any of Euro, Sterling, and Canadian Dollars.




          “Alternative Currency Commitment” means, with respect to each Alternative Currency
Lender, such Lender’s Canadian Currency Commitment or UK Commitment, as the case may be. The
initial amount of each Alternative Currency Lender’s Alternative Currency Commitment is set forth
on Schedule 2.1, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Alternative Currency Commitment. As of the Closing Date, the aggregate amount of
the Alternative Currency Lenders’ Alternative Currency Commitments is $100,000,000.




          “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in US Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the Administrative Agent at such time, in accordance with normal banking industry
practice, on the basis of the Spot Exchange Rate (determined on the date on which such equivalent
is to be determined pursuant to the provisions of this Agreement) for the purchase of such
Alternative Currency with US Dollars.




          “Alternative Currency Exposure” means at any time, the US Dollar Equivalent of the sum
of (i) the aggregate principal amount of all Alternative Currency Loans outstanding at such time
and (ii) the aggregate amount of LC Exposure that is denominated in one or more Alternative
Currencies. The Alternative Currency Exposure of any Lender with respect to any Borrowing
denominated in an Alternative Currency at any time shall be the US Dollar Equivalent of such
Lender’s Applicable Participation Percentage of the aggregate Alternative Currency Exposure with
respect to such Borrowing at such time.




          “Alternative Currency Lender” means a Lender with an Alternative Currency Commitment
or, if the Alternative Currency Commitments have terminated or expired, a Lender holding direct
interests in Alternative Currency Loans.




          “Alternative Currency Loan” means a Revolving Loan made pursuant to Section
2.4.







3









 








          “Alternative Currency Sublimit” means the US Dollar Equivalent of $100,000,000.00.




          “Applicable Agent” means (a) with respect to a Loan or Borrowing denominated in US
Dollars or any Letter of Credit denominated in US Dollars, and with respect to any payment
hereunder that does not relate to a particular Loan, Borrowing or Letter of Credit, the
Administrative Agent; (b) with respect to a Loan, Borrowing or a Letter of Credit denominated in
Canadian Dollars, the Canadian Agent; and (c) with respect to a Loan, Borrowing or Letter of Credit
denominated in Sterling or Euro, the European Agent.




          “Applicable Borrower” means, with respect to any Loan, LC Disbursement or other amount
owing hereunder or any matter pertaining to such Loan, LC Disbursement or other amount, whichever
of the Borrowers is the primary obligor on such Loan, LC Disbursement or other amount and, with
respect to any Letter of Credit, whichever of the Borrowers is the account party with respect
thereto.




          “Applicable Creditor” has the meaning set forth in Section 13.22.




          “Applicable Lending Installation” has the meaning set forth in Section 2.2(c).




          “Applicable Margin” means, for any day, with respect to Eurocurrency Loans, CDOR
Loans, Letter of Credit Fees, CB Floating Rate Loans or Canadian Prime Loans, or with respect to
the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth
in the table below under the caption “Eurocurrency Loans/CDOR Loans/Letter of Credit Fees”,
“CB Floating Rate Loans/Canadian Prime Loans” or “Commitment Fee”, as the case may
be, based upon the Leverage Ratio as of the most recent determination date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Eurocurrency	 	 	 	 
	 	 	 	 	 	 	Loans/CDOR	 	CB Floating	 	 
	 	 	 	 	 	 	Loans/Letter	 	Rate Loans/	 	 
	 	 	Leverage	 	of Credit	 	Canadian	 	Commitment
	Category	 	Ratio	 	Fees	 	Prime Loans	 	Fee
	1
	 	 	< 2.75x	 	 	 	2.00	%	 	 	1.00	%	 	 	0.35	%
	2
	 	≥ 2.75x  but < 3.00x	 	 	2.25	%	 	 	1.25	%	 	 	0.40	%
	3
	 	≥ 3.00x  but < 3.25x	 	 	2.50	%	 	 	1.50	%	 	 	0.45	%
	4
	 	 	≥ 3.25x	 	 	 	2.75	%	 	 	1.75	%	 	 	0.50	%





For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the last day of
each Fiscal Quarter and set forth in the Applicable Margin Certificate delivered pursuant to
Section 9.1(l), and (ii) each change in the Applicable Margin resulting from a change in
the Leverage Ratio shall be effective during the period commencing on and including the date of


4









 






delivery to the Administrative Agent of the Applicable Margin Certificate indicating such change
and ending on the date immediately preceding the effective date of the next such change;
provided that (A) until the Borrower delivers an Applicable Margin Certificate described in
Section 9.1(l), the Leverage Ratio shall be deemed to be in the Category one level higher
(in Category number) than the applicable Category of the immediately preceding fiscal period during the
period from the expiration of the time for delivery of such Applicable Margin Certificate until
such Applicable Margin Certificate is delivered and (B) prior to the initial delivery of an
Applicable Margin Certificate pursuant to Section 9.1(l), the Applicable Margin shall be
determined by reference to Category 1.




          “Applicable Margin Certificate” has the meaning set forth in Section 9.1(l).




          “Applicable Participation Percentage” means, as to any Lender, the percentage
determined by dividing such Lender’s Alternative Currency Commitment to make Loans in a designated
Alternative Currency by the aggregate of the Alternative Currency Commitments of the Alternative
Currency Lenders to make such Loans.




          “Application” means an application requesting an Issuing Bank to issue a Letter of
Credit, in such form as such Issuing Bank may specify from time to time.




          “Approved Fund” has the meaning set forth in Section 13.9(b)(ii).




          “Arrangers” means J.P. Morgan Securities, LLC; Merrill Lynch, Pierce, Fenner & Smith
Incorporated; and U.S. Bank National Association, in their capacities as Co-Lead Arrangers and
Joint Bookrunners of the credit facility provided under this Agreement.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 13.9), and accepted by the Administrative Agent, in the form of Exhibit A
or any other form approved by the Administrative Agent.




          “Availability Period” means the period from and including the Closing Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.




          “Banking Services” means each and any of the following bank services provided to any
Loan Party by an Agent, an Issuing Bank, any Lender, or an Affiliate of the foregoing: (a)
commercial credit cards, (b) stored value cards and (c) treasury and/or cash management services
(including controlled disbursement, automated clearinghouse transactions, return items, overdrafts
and interstate depository network services).




          “Banking Services Obligations” means the aggregate outstanding obligations of the Loan
Parties, whether absolute or contingent and howsoever and whenever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions therefor),
for the payment for Banking Services.




          “Base Rent Expense” means, for any period, payments (whether computed monthly or
annually) due under Leases of real property (including those resulting from sale-leaseback
transactions), exclusive of payments for percentage rent, common-area maintenance,




5









 







insurance, taxes
and any other amounts recorded in the Borrower’s or the Restricted Subsidiaries’ books and records
in accordance with their customary practices as rent other than “base rent expense”;
provided that, with respect to any acquisition of an Acquisition Target which results in
the requirement to provide pro forma financial information pursuant to Article
11 of Regulation S-X (Reg § 210.11.01, .02 and .03), Base Rent Expense of the Acquisition
Target for each full fiscal quarter included in the applicable computation period prior to such
Acquisition (including the fiscal quarter during which it was acquired) shall be included;
provided further that Base Rent Expense of the Acquisition Target shall be adjusted for
those applicable items of base rent expense that will increase or decrease subsequent to the date
of Acquisition, such adjustments limited to those like adjustments included in the pro forma
financial statements provided in the Form 8-K filed with the Securities and Exchange Commission
pursuant to Article 11 of Regulation S-X.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America or any entity succeeding to its functions.




          “Borrower” has the meaning set forth in the preamble hereto.




          “Borrowers” means the Borrower and each Subsidiary Borrower, and for the avoidance of
doubt, the phrase “a Borrower,” “each Borrower” or “any Borrower” means any
of the Borrowers.




          “Borrowing” means (a) Revolving Loans of the same Type and currency, made, converted
or continued on the same date to the same Applicable Borrower and, in the case of Eurocurrency
Loans and CDOR Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.




          “Borrowing Date” means the date scheduled for any Borrowing of Loans.




          “Borrowing Minimum” means (a) in the case of a Borrowing denominated in US Dollars,
(i) $3,000,000 with respect to Eurocurrency Loans, and (ii) $1,000,000 or, if lesser, as provided
in Section 2.2(d), with respect to CB Floating Rate Loans, (b) in the case of a Borrowing
denominated in Euro, €3,000,000, (c) in the case of a Borrowing denominated in Sterling,
£3,000,000, and (d) in the case of a Borrowing denominated in Canadian Dollars, C$3,000,000.




          “Borrowing Multiple” means (a) in the case of a Borrowing denominated in US Dollars,
$500,000, (b) in the case of a Borrowing denominated in Euro, €500,000, (c) in the case of a
Borrowing denominated in Sterling, £1,000,000, and (d) in the case of a Borrowing denominated in
Canadian Dollars, C$500,000.




          “Business Day” means any day other than a Saturday, Sunday or day which shall be in
Houston, Texas, Toronto, Ontario, or London, England, as applicable, a legal holiday or day on
which banking institutions are required or authorized to close; provided that, (i) when
used in connection with a Eurocurrency Loan denominated in Dollars, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits in the
London interbank market, (ii) when used in connection with a Eurocurrency Loan denominated in an
Alternative Currency, the term “Business Day” shall also exclude (a) if such Eurocurrency




6









 







Loan is denominated in Euro, any day which is not a Target Day, and (b) if such Eurocurrency Loan
is denominated in an Alternative Currency other than Euro, any day on which commercial banks in the
London foreign exchange market do not settle payments in the principal financial center where such
Alternative Currency is cleared and settled as reasonably determined by the
Administrative Agent, and (iii) when used in connection with a CDOR Loan or a Canadian Prime
Loan, the term “Business Day” shall also exclude any day on which commercial banks in
Toronto, Ontario are required or authorized to close.




          “CAM” means the mechanism for the allocation and exchange of interests in the Loans
and collections thereunder established under Article XIV.




          “CAM Exchange” means the exchange of the Lenders’ interests provided for in
Article XIV.




          “CAM Exchange Date” means the first date after the Closing Date (a) on which there
shall occur (i) any Event of Default described in subsection (f) of Section 11.1;
or (ii) an acceleration of Loans pursuant to Section 11.1; (b) Designated Obligations in an
amount of at least $5,000,000 are outstanding; and (c) (i) in the case of a CAM Exchange Date based
solely upon clause (a)(i), the Majority Lenders shall not have advised the Administrative
Agent that they do not want the CAM Exchange to occur, and (ii) in the case of a CAM Exchange Date
based upon clause (a)(ii), the Majority Lenders shall have advised the Administrative Agent
that they do wish the CAM Exchange to occur.




          “CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the aggregate Designated Obligations owed to such Lender
immediately prior to the CAM Exchange Date (whether or not at the time due and payable), and (b)
the denominator shall be the aggregate Designated Obligations owed to all the Lenders immediately
prior to the CAM Exchange Date (whether or not at the time due and payable). For purposes of
computing each Lender’s CAM Percentage, (y) all Designated Obligations which shall be denominated
in an Alternative Currency shall be translated into US Dollars at the Spot Exchange Rate in effect
on the CAM Exchange Date and (z) each Lender shall be deemed to hold its Pro Rata Percentage of all
outstanding Swingline Loans, Alternative Currency Loans and LC Disbursements.




          “Canadian Agent” means JPMorgan Chase Bank, N.A., Toronto Branch, or, with prior
written notice to the Borrower, any other Affiliate or branch of JPMCB that JPMCB shall have
designated for the purpose of acting in such capacity hereunder and its successors in such
capacity.




          “Canadian AML Legislation” means each of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act (Canada) and other applicable anti-money laundering, anti-terrorist
financing, government sanction and “know your client” laws within Canada, including any
guidelines or orders thereunder.




          “Canadian Benefit Plan” means all material benefit plans or arrangements subject to
Canadian federal or applicable provincial law or regulation maintained or contributed to by the
Borrower or any of its Subsidiaries that are not Canadian Pension Plans, including all profit




7









 







sharing, savings, supplemental retirement, retiring allowance, severance, deferred compensation,
welfare, bonus, incentive compensation, phantom stock, legal services, supplementary unemployment
benefit plans or arrangements and all life, health, dental and disability plans and arrangements in
which the employees or former employees of the Borrower or any of its
Subsidiaries participate or are eligible to participate, but excluding all stock option or
stock purchase plans.




          “Canadian Borrower” has the meaning set forth in the preamble hereto.




          “Canadian Currency”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are denominated in Canadian Dollars.




          “Canadian Currency Commitment” means, with respect to each Canadian Lender, the
commitment of such Canadian Lender hereunder to make Canadian Currency Loans and to issue and
acquire participations in Letters of Credit denominated in Canadian Dollars, as such commitment may
be (a) reduced from time to time pursuant to Section 4.10 or increased from time to time
pursuant to Section 4.11, (b) reduced or increased from time to time pursuant to
Section 2.4(k), and (c) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 13.9. The initial amount of each Canadian Lender’s
Canadian Currency Commitment is set forth and so captioned in Schedule 2.1, in the
Assignment and Assumption pursuant to which such Lender shall have assumed its Canadian Currency
Commitment, or in the Joinder Agreement pursuant to which such Canadian Lender became a Canadian
Lender, as applicable.




          “Canadian Currency Loan” means a Loan made in Canadian Currency pursuant to
Section 2.4.




          “Canadian Dollars” and “C$” refers to the lawful currency of Canada.




          “Canadian Insolvency Laws” means each of the Bankruptcy and Insolvency Act (Canada),
the Companies’ Creditors Arrangement Act (Canada), and the Winding-Up and Restructuring Act
(Canada), each as now and hereafter in effect, any successors to such statutes and any other
applicable insolvency or other similar law of any jurisdiction, including any law of any
jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors
against it.




          “Canadian Lender” means (i) as of the Closing Date, a Lender with a Canadian Currency
Commitment in Schedule 2.1 or a Commitment to issue Letters of Credit denominated in
Canadian Dollars and (ii) after the Closing Date, each Lender that becomes a Canadian Lender and
makes Loans and issues Letters of Credit denominated in Canadian Dollars, or, if the Canadian
Currency Commitments have terminated or expired, a Lender holding direct interests in Canadian
Currency Loans and/or Letters of Credit denominated in Canadian Dollars. A Canadian Lender may, in
its discretion, arrange for one or more Canadian Currency Loans and Letters of Credit denominated
in Canadian Dollars to be made or issued, as the case may be, by one or more of its domestic or
foreign branches or Affiliates, in which case the term “Canadian




8









 







Lender” shall include any
such branch or Affiliate with respect to Loans made or Letters of Credit issued by such Person.




          “Canadian Pension Plan” means all pension plans required to be registered under
Canadian federal or provincial law established, maintained or contributed to by the Borrower or any
of its Subsidiaries for their employees or former employees, but does not include the Canada
Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the
Province of Quebec, respectively.




          “Canadian Prime”, when used in reference to a Loan or a Borrowing, refers to whether
such Loan or Borrowing is denominated in Canadian Dollars and bearing interest at the Canadian
Prime Rate.




          “Canadian Prime Rate” means, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the greater of (a) the rate of interest which the
Canadian Agent establishes on such date as the reference rate of interest for determination of
interest rates it will charge for loans in Canadian Dollars at its office in Toronto, Ontario, and
which it refers to as its prime rate (or its equivalent or analogous such rate) and (b) the sum of
(i) the yearly rate of interest to which the one month CDOR Rate is equivalent plus (ii) one
percent (1.0%) per annum.




          “Capital Expenditures” means, for any period, the additions to property, plant and
equipment and other capital expenditures of the Borrower and its Restricted Subsidiaries for such
period that are (or would in accordance with GAAP be) set forth as such in a consolidated statement
of cash flows of the Borrower and its Subsidiaries for such period.




          “Capital Lease” has the meaning set forth in the definition of Capital Lease
Obligation.




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




          “Cash Equivalents” means (a) marketable direct obligations issued or unconditionally
guaranteed by the United States Government, the Government of Canada, or the UK government, or
issued by an agency thereof and backed by the full faith and credit of the United States
Government, the Government of Canada, or the UK government, as the case may be, in each case
maturing within ninety (90) days after the date of acquisition thereof; (b) marketable direct
obligations issued by any state of the United States of America or any province of Canada, or any
political subdivision of any such state or province or any public instrumentality thereof, in each
case maturing within ninety (90) days after the date of acquisition thereof and, at the time of
acquisition, having the highest rating obtainable from either Standard & Poor’s or Moody’s (or, if
at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, then from such
other nationally recognized rating services




9









 







acceptable to the Administrative Agent); (c) commercial
paper maturing no more than ninety (90) days after the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 or P-1 from either Standard & Poor’s or Moody’s (or,
if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, then the
highest rating from such other nationally recognized rating services
acceptable to the
Administrative Agent); (d) certificates of deposit or bankers acceptances denominated in US
Dollars, Canadian Dollars, Sterling or Euro
and maturing within ninety (90) days after the date of acquisition thereof issued by any
Lender or any other commercial bank organized under the laws of the United States of America or
Canada or any state or province thereof or the District of Columbia, or the UK, in each case having
combined capital and surplus of not less than $250,000,000 (or the Alternative Currency Equivalent
thereof); (e) repurchase agreements of the Administrative Agent, any Lender or any other commercial
bank organized under the laws of the United States of America or Canada or any state or province
thereof or the District of Columbia, or the UK, in each case having combined capital and surplus of
not less than $250,000,000 (or the Alternative Currency Equivalent thereof); (f) overnight
investments with the Administrative Agent, any Lender or any other commercial bank organized under
the laws of the United States of America or Canada or any state or province thereof or the District
of Columbia, or the UK, in each case having combined capital and surplus of not less than
$250,000,000 (or the Alternative Currency Equivalent thereof); (g) other readily marketable
instruments issued or sold by the Administrative Agent, any Lender or any other commercial bank
organized under the laws of the United States of America or Canada or any state or province thereof
or the District of Columbia, or the UK, in each case having combined capital and surplus of not
less than $250,000,000 (or the Alternative Currency Equivalent thereof); and (h) funds invested in
brokerage accounts with nationally recognized brokerage houses or money market accounts, in each
case for less than thirty (30) days.




          “CB Floating Rate” means, for any day, a rate per annum equal to the Alternate Base
Rate in effect on such day, and when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the CB Floating Rate. Any change in the CB Floating Rate due to a change in the
Alternate Base Rate shall be effective from and including the effective date of such change in the
Alternate Base Rate.




          “CDOR” when used in reference to a Loan or a Borrowing, refers to whether such Loan or
Borrowing is denominated in Canadian Dollars and bearing interest at the CDOR Rate.




          “CDOR Rate” means, with respect to any CDOR Loan for any Interest Period, the sum of
(a) the rate per annum determined by the Administrative Agent by reference to the average rate
quoted on the Reuters Monitor Screen, Page “CDOR” (or such other Page as may replace such
Page) on such screen for the purpose of displaying the Canadian interbank offered rates for
Canadian Dollar bankers’ acceptances with a term comparable to the term of such Interest Period as
of 10:00 a.m., Toronto Time, on the first day of such Interest Period plus (b) 0.10%. If for any
reason the Reuters Monitor Screen rates are unavailable, CDOR Rate means the sum of (a) the rate of
interest determined by the Administrative Agent that is equal to the arithmetic mean of the rates
quoted by such reference banks as may be specified from time to time by the Administrative Agent,
after consultation with the Borrower and the Canadian Agent, in respect of Canadian Dollar bankers’
acceptances with a term comparable to the term of such




10









 







Interest Period as of 10:00 a.m., Toronto
Time, on the first day of such Interest Period plus (b) 0.10%.




          “Change in Law” means (a) the adoption of any Law, rule or regulation after the date
of this Agreement, (b) any change in any Law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement, or (c)
compliance by any Agent, any Lender or any Issuing Bank (or, for purposes of Section
3.2, by any lending office of such Lender or of such Issuing Bank or by such Lender’s or such
Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not
having the force of Law) of any Governmental Authority made or issued after the date of this
Agreement; provided, that for purposes of this Agreement, all requests, rules, guidelines
or directives in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act
which are not in effect at least thirty (30) days prior to the Closing Date are deemed, when
effective, to have gone into effect and been adopted thirty (30) days after the date of this
Agreement.




          “Change of Control” means (i) any transaction (including a merger or consolidation)
the result of which is that any “person” or “group” (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act) of more than 50 percent (50%) of the total voting power of all classes of
the voting stock of the Borrower or the surviving Person and/or warrants or options to acquire such
voting stock, calculated on a fully diluted basis (a “Control Person”), other than any such
transaction in which the current executive officers of the Borrower who are also currently
directors and their Affiliates or The Zimmer Family Foundation become, individually or
collectively, a Control Person, or (ii) the sale, lease or transfer of all or substantially all of
the Borrower’s assets (whether Equity Interest in its Subsidiaries, the assets of its Subsidiaries,
or some combination thereof) to any “person” or “group” (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act), except to the Borrower or one or more of its Restricted Subsidiaries
or a Control Person.




          “Change/Continuation Date” means a date upon which the Applicable Borrower has
requested the change or continuation of the interest rate applicable to any Loan pursuant to a
Notice of Rate Change/Continuation delivered pursuant to Section 3.1.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Alternative Currency Loans, Canadian
Currency Loans, UK Loans or Swingline Loans, and when used in reference to any Commitment, refers
to whether such Commitment is a Revolving Commitment, Alternative Currency Commitment, Canadian
Currency Commitment or a UK Commitment.




          “Closing Date” means the date on which the conditions specified in Section 8.1
are satisfied.




          “Code” means the Internal Revenue Code of 1986, as amended, or its predecessor or
successor, as applicable, together with all regulations, rulings, and interpretations thereof or
thereunder issued by the Internal Revenue Service.




11









 








          “Collateral” means all property in which any Loan Party has granted, or purported to
grant, a security interest or other Lien to the Administrative Agent on behalf of the Lenders and
the Issuing Banks pursuant to any of the Loan Documents and shall include all Pledged Collateral
and all cash and Cash Equivalents delivered as collateral pursuant to Section 2.7(d)(viii),
4.2, 4.7(c) or 11.2.




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to issue and acquire participations in Letters of Credit, Swingline Loans and
Alternative Currency Loans hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 4.10 or increased from time to time pursuant to Section 4.11,
(b) reduced or increased from time to time pursuant to Section 2.4(k), and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section
13.9. The initial amount of each Lender’s Commitment is set forth on Schedule 2.1, in
the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, or
in the Joinder Agreement pursuant to which such Lender became a Lender, as applicable. The
agreement of the Swingline Bank to make Swingline Loans shall not constitute part of its Commitment
for purposes of determining the Swingline Bank’s Unused Commitment but shall be taken into account
in determining the Credit Exposure of the Swingline Bank.




          For purposes of calculating any Commitment with respect to Revolving Loans in Alternative
Currencies, the Administrative Agent shall use the US Dollar Equivalent of such Alternative
Currency, calculated on the basis of the Spot Exchange Rate for such Alternative Currency as of the
most recent Spot Currency Determination Date.




          “Commitment Increase” has the meaning set forth in Section 4.11(a).




          “Commitment Increase Effective Date” has the meaning set forth in Section
4.11(b).




          “Companies Act” means the Companies Act 2006 of England and Wales.




          “Consolidated Net Worth” means, as of any date of determination, the total
shareholders’ equity of the Borrower and the Restricted Subsidiaries which appears on the
consolidated balance sheet of such Person as of such date, determined in accordance with GAAP, or
if such date of determination is not the last day of a Fiscal Quarter, then determined as of the
end of the most recently completed Fiscal Quarter for which financial statements have been provided
hereunder; excluding, however, (a) from total shareholders’ equity, mandatorily redeemable
Preferred Stock of the Borrower or a Restricted Subsidiary to the extent included in total
shareholders’ equity and (b) Restricted Investments of the Borrower and the Restricted Subsidiaries
in any Unrestricted Subsidiaries.




          “Contractual Rent Expense” means, for any period as to the Borrower and the Restricted
Subsidiaries, all payments (whether computed monthly or annually) due under Leases of real property
(including those resulting from sale-leaseback transactions), including, without limitation, Base
Rent Expense and payments for percentage rent, common-area maintenance, insurance, and taxes and
any other amounts recorded in such Person’s books and records in accordance with their customary
practices as rent expense, whether paid or accrued in the




12









 







applicable period of calculation, but
excluding adjustments with respect to such payments required to be made in conformity with GAAP for
the purposes of accounting for graduated lease payments; provided that with respect to any
acquisition of an Acquisition Target which results in the requirement to provide pro forma
financial information pursuant to Article 11 of Regulation S-X (Reg § 210.11.01, .02 and .03), or
other similar law, Contractual Rent Expense of such Acquisition Target for each full fiscal quarter
included in the applicable computation period prior
to such Acquisition (including the fiscal quarter during which it was acquired) shall be
included; provided further that Contractual Rent Expense of such Acquisition Target shall
be adjusted for those applicable items of contractual expense that will increase or decrease
subsequent to the date of Acquisition, such adjustments limited to those adjustments included in
the pro forma financial statements provided in the Form 8-K filed with the Securities and Exchange
Commission pursuant to Article 11 of Regulation S-X or similar filings under other applicable law.




          “Contribution Notice” means a contribution notice issued by the Pensions Regulator
under Section 38 or Section 47 of the Pensions Act 2004 of England and Wales.




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




          “Credit Exposure” means (without duplication), with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender’s Revolving Loans, LC Exposure or
Swingline Exposure at such time.




          “Cure Return” has the meaning set forth in Section 11.2.




          “Debt” means (without duplication), for any Person:




               (a) obligations of such Person for borrowed money (including obligations, contingent or
otherwise, of such Person relative to the available face amount of all letters of credit and
letters of guaranty, whether drawn or undrawn, and banker’s acceptances issued for the account of
such Person);



               (b) obligations of such Person evidenced by bonds, debentures, notes or similar instruments
(but excluding sight drafts that evidence account payables arising in the ordinary course of
business);



               (c) obligations of such Person to pay the deferred purchase price of property or services (but
excluding accounts payable arising in the ordinary course of business), other than contingent
purchase price or similar obligations incurred in connection with an acquisition and not yet earned
or determinable;



               (d) obligations of others secured by (or for which the holder of such obligations has an
existing right, contingent or otherwise, to be secured by) a Lien on Property owned or being
purchased by such Person (including obligations arising under conditional sales or other title
retention agreements, other than customary reservations or retentions of title under



13









 







supply
agreements entered into in the ordinary course of business), whether or not such obligations shall
have been assumed by such Person or are limited in recourse;



               (e) Capital Lease Obligations of such Person;



               (f) Guarantees by such Person of any obligations of any other Person which are described in
the preceding subsections (a)—(e) and the following subsection (g); and



               (g) net obligations of such Person under Hedge Agreements (the amount of such obligations to
be equal at any time to the termination value of such Hedge Agreement giving rise to such
obligation that would be payable by such Person at such time).


Debt of any Person shall include the Debt of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to the extent the
terms of such Debt provide that such Person is not liable therefor.




          “Debtor Relief Laws” means all applicable federal, state, provincial or foreign
liquidation, dissolution, termination, winding-up, conservatorship, bankruptcy, moratorium,
arrangement, receivership, insolvency, reorganization, or similar laws (including all Canadian
Insolvency Laws), or general equitable principles from time to time in effect affecting the rights
of creditors generally (including, to the extent applicable, the rights and remedies of creditors
of a “financial company” as such term is defined in Section 201 of the Dodd-Frank Wall
Street Reform and Consumer Protection Act) or providing for the relief of debtors.




          “Default” means any of the events or circumstances specified in Section 11.1,
whether or not there has been satisfied any requirement in connection with such event or
circumstance for the giving of notice, or the lapse of time, or the happening of any further
condition, event or act.




          “Defaulting Lender” means any Lender that has (a) failed within two (2) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans or participations
in Letters of Credit or Swingline Loans or other amounts required to be funded by it hereunder or
under any Loan Document or (ii) pay over to the Administrative Agent, any Issuing Bank, the
Swingline Bank or any Lender any other amounts required to be paid by it hereunder or under any
Loan Document, unless, in the case of clause (i) above, such Lender notifies the Borrower
and the Administrative Agent in writing, on the date of the requested Borrowing and on or before
the time required for it to fund its portion of the requested Loan, that such failure is a result
of such Lender’s good faith determination that a condition precedent to funding
under this
Agreement (specifically identified and including the particular default or other condition
precedent, as the case may be, and the basis for such determination with reasonable specificity)
has not been satisfied as of such time required for funding such requested Loan, (b) notified the
Borrower, the Administrative Agent, the Issuing Banks and the Swingline Bank in writing or has made
a public statement to the effect that it does not intend to comply with any of its funding
obligations under this Agreement or under other agreements in which it commits to extend credit,
unless, in such writing or public statement, such Lender expressly states that such position is
based on such Lender’s good faith determination that a condition precedent to funding




14









 







under this
Agreement (specifically identified and including the particular default or other condition
precedent, as the case may be, and the basis for such determination with reasonable specificity)
cannot be satisfied, (c) failed, within three Business Days after request by the Administrative
Agent or the Borrower (through the Administrative Agent, which shall deliver such request promptly
upon receipt from the Borrower), to provide a certification in writing from
an authorized officer of such Lender that it will comply with the terms of this Agreement and
each other Loan Document relating to its obligations (and is financially able to meet such
obligations) to fund prospective Loans and participations in then-outstanding Letters of Credit and
Swingline Loans or other amounts required to be funded by it hereunder or under any other Loan
Document, provided that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon the Administrative Agent’s and (through the Administrative Agent) the
Borrower’s receipt of such certification in form and substance satisfactory to the Administrative
Agent and the Borrower, (d) in the good faith belief of the Administrative Agent, the Swingline
Bank or any Issuing Bank, defaulted in fulfilling its obligations under one or more other
agreements in which such Lender had committed to extend credit, which good faith belief, and basis
therefor, is communicated in writing to the Administrative Agent and the Borrower, or (e) (i)
become or is insolvent or whose Parent has become or is insolvent or (ii) become or is the subject
of a proceeding under any Debtor Relief Law, or has had a receiver, conservator, trustee,
administrator, custodian or similar Person appointed for it, or in the good faith determination of
the Administrative Agent has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment or whose Parent has become the
subject of a proceeding under any Debtor Relief Law, or has had a receiver, conservator, trustee,
administrator, custodian or similar Person appointed for it, or in the good faith determination of
the Administrative Agent has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment.




          “Designated Obligations” means all Obligations of the Loan Parties in respect of (a)
unpaid principal of the Loans and unreimbursed LC Disbursements and (b) accrued and unpaid (i)
interest on the Loans and LC Disbursements and (ii) fees, whether or not the same shall at the time
of any determination be due and payable under the terms of the Loan Documents.




          “Disclosure Letter” means that letter dated as of the date of this Agreement from the
Borrower, addressed to the Administrative Agent and the Lenders and setting forth certain
disclosure information therein designated.




          “Domestic Subsidiary” means, as to any Person, each Subsidiary of such Person that is
incorporated, formed or otherwise organized under the laws of the United States, any State thereof
or the District of Columbia, or is treated as such for United States federal tax purposes.




          “EBITDA” means, for any period, as to the Borrower and the Restricted Subsidiaries, an
amount equal to earnings before income taxes and adjustment for extraordinary items, plus (a)
depreciation and amortization, plus (b) interest expense, plus, to the extent deducted in
determining earnings before extraordinary items, (c) other non-cash charges, minus, to the extent
added in determining earnings before extraordinary items, (d) non-cash income, for the four (4)
immediately preceding Fiscal Quarters; provided that with respect to any acquisition of an
Acquisition Target which results in the requirement to provide pro forma financial




15









 







information
pursuant to Article 11 of Regulation S X (Reg. § 210.11.01, .02 and .03), EBITDA of such
Acquisition Target for each full fiscal quarter included in the applicable computation period prior
to such Acquisition (including the fiscal quarter during which it was acquired) shall be included;
provided further that EBITDA of such Acquisition Target shall be adjusted for those items
of income and expense that will increase or decrease subsequent to the date of Acquisition,
such adjustments limited to those adjustments included in the pro forma financial statements
provided in the Form 8 K filed with the Securities and Exchange Commission pursuant to Article 11
of Regulation S X.




          “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any Person (other than a natural person) approved by (i) the Administrative Agent,
(ii) in the case of any assignment of a Commitment, each Issuing Bank, and (iii) unless an Event of
Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include (y) the Borrower or any of the Borrower’s Affiliates or
Subsidiaries or (z) any Defaulting Lender.




          “Eligible Borrower” means (i) with respect to Loans denominated in Sterling or Euro,
the UK Borrower and the Borrower; (ii) with respect to Loans denominated in Canadian Dollars, the
Canadian Borrower and the Borrower; and (iii) with respect to Loans denominated in US Dollars, the
Borrower.




          “EMU Legislation” means the legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member states of the
European Union.




          “Environmental Laws” means any federal, state, provincial, local or foreign law,
statute, code, ordinance, principle of common law, rule or regulation, as well as any license,
order, decree, judgment or injunction issued, promulgated, approved, or entered thereunder,
relating to pollution or the protection, cleanup or restoration of the environment or natural
resources, or to the public health or safety, or otherwise governing the generation, use,
management, transportation, recovery, recycling, discharge disposal, Release or threatened Release
of Hazardous Materials, including, as to U.S. laws, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Superfund Amendment and Reauthorization Act of 1986,
the Resource Conservation and Recovery Act of 1975, the Occupational Safety and Health Act, the
Clean Air Act, the Clean Water Act, the Emergency Planning and Community Right to Know Act, the
Federal Insecticide, Fungicide and Rodenticide Act, and the Toxic Substances Control Act, and any
state, local or foreign counterparts.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) the violation of
any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials into the environment, or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.




16









 








          “Equity Interests” means and includes (a) any and all shares, interests,
participations or other equivalents of or interests in (however designated) corporate stock,
including, without limitation, shares of preferred or preference stock, (b) all partnership
interests (whether general or limited) in any Person which is a partnership, (c) all interests or
limited
liability company interests in any limited liability company, (d) all equity or ownership
interests in any Person of any other type, and (e) all warrants, options or other rights entitling
the holder thereof to purchase or acquire any such equity interest.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any regulations issued thereunder by the Department of Labor or the PBGC.




          “ERISA Affiliate” means (a) any corporation included with the Borrower in a controlled
group of corporations within the meaning of Section 414(b) of the Code, (b) any trade or business
(whether or not incorporated) which is under common control with the Borrower within the meaning of
Section 414(c) of the Code, (c) any member of an affiliated service group of which the Borrower is
a member within the meaning of Section 414(m) of the Code and (d) any other group including the
Borrower that is treated as a single employer within the meaning of Section 414(o) of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043(c)
of ERISA or the regulations issued thereunder with respect to a Pension Plan (other than an event
for which the 30-day notice period is waived); (b) the existence with respect to any Pension Plan
of a failure to satisfy the minimum funding standard (within the meaning of Section 412 of the Code
or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (c) the filing
pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Pension Plan; (d) a determination that any Pension
Plan is, or is expected to be, in at-risk status (within the meaning of Section 430(i)(4) of the
Code or Section 303(i)(4) of ERISA); (e) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension
Plan in a distress termination (within the meaning of Section 4041(c) of ERISA); (f) the receipt by
the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Pension Plan or Pension Plans in a distress termination (within the
meaning of Section 4041(c) of ERISA) or to appoint a trustee to administer any Pension Plan; (g)
the incurrence by the Borrower or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Multiemployer Plan; (h) the receipt by the Borrower or
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is reasonably expected to be, insolvent or in
reorganization (within the meaning of Title IV of ERISA) or is in endangered or critical status
(within the meaning of Section 432 of the Code or Section 305 of ERISA); or (i) the occurrence of a
non-exempt “prohibited transaction” (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) concerning any Pension Plan and with respect to which the Borrower or any
ERISA affiliate is a “disqualified person” (within the meaning of Section 4975 of the Code)
or a party in interest (within the meaning of Section 406 of ERISA) or could otherwise be liable.




17









 








          “EURIBO Rate” means, in relation to any Loan or Borrowing in Euro for any Interest
Period, the rate appearing on the Reuters EURIBOR 01 screen displaying the EURIBOR Rate calculated
by the European Central Bank (or any successor or substitute screen provided by Reuters, or any
successor to or substitute for such service providing rate quotations comparable
to those currently provided on such screen, as determined by the Applicable Agent from time to
time for the purposes of providing quotations of interest rates applicable to deposits in Euro in
the European interbank market) at approximately 10:00 a.m. London Time on the Quotation Date for
such Interest Period, as the rate for deposits in Euro with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any reason, the “EURIBO
Rate” with respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at
which deposits in Euro the US Dollar Equivalent of which is $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the European interbank market at approximately 10:00 a.m.
London Time on the Quotation Date for such Interest Period.




          “Euro” and “€” means the single currency unit of the Participating Member
States.




          “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate or the Adjusted EURIBO Rate, as applicable.




          “European Agent” means J.P. Morgan Europe Limited, or, with prior written notice to
the Borrower, any other Affiliate or branch of JPMCB that JPMCB shall have designated for the
purpose of acting in such capacity hereunder and its successors in such capacity.




          “Event of Default” means any of the events or circumstances specified in Section
11.1, provided that there has been satisfied any requirement in connection with such
event for the giving of notice, or the lapse of time, or the happening of any further condition,
event or act.




          “Exchange Act” means the Securities Exchange Act of 1934.




          “Excluded Taxes” has the meaning set forth in the definition of “Taxes.”




          “Executive Order” means, as long as it remains in effect and is applicable, Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism, or any amendment, modification or supplement thereof, or any successor to any such
order.




          “Existing Agent” means the Administrative Agent under the Existing Credit Agreement.




          “Existing Credit Agreement” has the meaning set forth in the first WHEREAS clause
hereof.




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          “Expiration Date” means the last day of an Interest Period.




          “FATCA” means Sections 1471 through 1474 of the Code and any Treasury regulations
promulgated thereunder or official interpretations thereof.




          “Federal Funds Effective Rate” means, for any day, the rate per annum equal to the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) 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) on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.




          “Financial Support Direction” means a financial support direction issued by the
Pensions Regulator under Section 43 of the Pensions Act 2004 of England and Wales.




          “First-Tier Foreign Subsidiary” means any Foreign Subsidiary of the Borrower in which
all or substantially all of the Equity Interests are owned directly by one or more of (i) the
Borrower and (ii) any Domestic Subsidiary of the Borrower. Initially the only First-Tier Foreign
Subsidiary is Moores Retail Group Inc., a New Brunswick corporation.




          “Fiscal Quarter” means a fiscal quarter of the Borrower.




          “Fiscal Year” means the Borrower’s fifty-two (52) or fifty-three (53) week fiscal
year, which ends on the Saturday nearest January 31 in each calendar year; by way of example,
references to “Fiscal Year 2010” shall mean the fiscal year ended January 29, 2011.




          “Fixed Charge Coverage Ratio” means, for any period of four consecutive Fiscal
Quarters ending on any date of determination, as to the Borrower and the Restricted Subsidiaries,
an amount equal to the quotient of (a) the sum of (i) EBITDA for such period plus (ii) Contractual
Rent Expense for such period divided by (b) Fixed Charges for such period, determined on a
consolidated basis.




          “Fixed Charges” means, for any period as to the Borrower and the Restricted
Subsidiaries, an amount equal to the sum (without duplication) of (a) net cash interest expense for
such period plus (b) Contractual Rent Expense for such period, determined on a consolidated basis.




          “Foreign Lender” means, with respect to an Applicable Borrower that is resident for
Tax purposes in a particular jurisdiction, any Lender that is regarded by the Governmental
Authority of that jurisdiction as not being resident for Tax purposes in that jurisdiction. For
purposes of this definition, the United States, each State thereof and the District of Columbia




19









 







shall be deemed to constitute a single jurisdiction, and Canada and each Province and territory
thereof shall be deemed to constitute a single jurisdiction.




          “Foreign Pension Plan” means any plan, fund (including any superannuation fund) or
other similar program established or maintained outside the United States by the Borrower or any
one or more of its Subsidiaries primarily for the benefit of employees of the
Borrower or such Subsidiaries residing outside the United States, which plan, fund or similar
program provides, or results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination or severance of employment, and which plan is
not subject to ERISA or the Code, excluding, however, from this term “Foreign Pension
Plan,” each of the Canada Pension Plan and the Quebec Pension Plan.




          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.




          “GAAP” means generally accepted accounting principles in the United States as in
effect from time to time, as set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, which are applicable to the
circumstances as of the date of determination.




          “Governmental Approval” means any authorization, consent, approval, license or
exemption of, registration or filing with, or report or notice to, any Governmental Authority.




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




          “Guarantee” of or by any Person (the “guarantor”) means any direct or indirect
liability, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Debt or other obligation of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase, repurchase or otherwise acquire or pay (or advance or supply funds
for the purchase or payment of) such Debt or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Debt or other
obligation of the payment thereof or that any agreement relating thereto will be complied with, or
that the holders of such Debt or other obligation will be protected against loss in respect
thereof, (c) to maintain working capital, equity capital or any other financial statement condition
or liquidity of the primary obligor, or (d) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Debt or obligation; provided that the term
Guarantee shall not include endorsements for collection or deposit in the ordinary course of
business.




          “Guarantors” means the Borrower and all Material Restricted Subsidiaries of the
Borrower now existing or hereafter acquired or existing, other than Foreign Subsidiaries. The




20









 







initial Guarantors are the Borrower, K&G Men’s Company Inc., TMW Merchants LLC, TMW Marketing
Company, Inc. and TMW Purchasing LLC.




          “Guaranty Agreement Supplement” has the meaning set forth in Section 9.7(a).




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




          “Hedge Agreement” means (a) any agreement (including terms and conditions incorporated
by reference therein) which is a rate swap agreement, basis swap, credit derivative transaction,
forward rate agreement, commodity swap, commodity option, forward commodity contract, equity or
equity index swap or option, forward bond or forward bond price or forward bond index transaction,
interest rate option, forward foreign exchange agreement, spot foreign exchange agreement, cap
agreement, floor agreement, collar agreement, currency swap agreement, cross-currency rate swap
agreement, currency option, spot contract, or any other similar agreement (including any option to
enter into any of the foregoing), whether or not such agreement is governed by or subject to any
master agreement, (b) any and all agreements of any kind, and any and all 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, or (c) any combination of the foregoing.




          “Highest Lawful Rate” means, with respect to each Lender, the maximum nonusurious
interest rate, if any, that at any time or from time to time may be contracted for, taken,
reserved, charged, or received with respect to the Obligations due to such Lender pursuant to this
Agreement or any other Loan Document, under laws applicable to such Lender which are presently in
effect, or, to the extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than applicable laws presently
allow. To the extent required by applicable law in determining the Highest Lawful Rate with respect
to any Lender as of any date, there shall be taken into account the aggregate amount of all
payments and charges theretofore contracted for, taken, reserved, charged or received by such
Lender hereunder or under the other Loan Documents which constitute or are deemed to constitute
interest under applicable law.




          “Houston Distribution Center” means the real property of the Borrower located in
Harris County, Texas and commonly referred to by it as the “Bellfort Distribution Facility
Center”, including additional real property from time to time acquired in connection therewith,
and the improvements, fixtures and similar property from time to time located thereon or used in
connection therewith, which improved real property is used or intended for use in connection with
the business activities of the Borrower and its Subsidiaries which are permitted by Section
10.8.




          “Houston Time” means the time in Houston, Texas.




21









 








          “Increasing Revolving Lender” has the meaning set forth in Section 4.11(a).




          “Indemnified Party” has the meaning set forth in Section 13.11(b).




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Information” has the meaning set forth in Section 13.19.




          “Information Memorandum” means the Confidential Information Memorandum dated November
2010 relating to the Borrower and the Transactions.




          “Interest Payment Date” means (a) with respect to any CB Floating Rate Loan (other
than a Swingline Loan) the last day of each March, June, September and December, (b) with respect
to any Canadian Prime Loan, the third Business Day after the last day of each calendar month, (c)
with respect to any Eurocurrency Loan or any CDOR Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing or CDOR Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three months’ duration
after the first day of such Interest Period, and (d) with respect to any Swingline Loan, the day
that such Loan is required to be repaid.




          “Interest Period” means, with respect to any Eurocurrency Borrowing or CDOR Borrowing,
the period commencing on the date of such Borrowing and ending on the numerically corresponding day
in the calendar month that is one, two, three or (subject to currency requirements to the extent
that the Revolving Loan is made in an Alternative Currency) six months thereafter (and in the case
of CDOR Borrowings, 30, 60 or 90 or, if available, 180 days thereafter), as the Applicable Borrower
may elect; provided that (i) if any Interest Period would otherwise begin on a day that is
not a Business Day, such Interest Period shall begin on the next Business Day; (ii) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day,
and (iii) any Interest Period that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.




          “Inventory” means the “inventory” (as that term is defined by and within the
meaning of GAAP) of the Borrower and any Restricted Subsidiary including, without limitation,
merchandise in transit and piece goods in the possession of manufacturers.




          “Investment” of any Person means any investment so classified under GAAP, and, whether
or not so classified, includes (a) any direct or indirect loan or advance made by it to any other
Person, whether by means of stock purchase, loan, advance or otherwise, (b) any capital
contribution to any other Person, and (c) any ownership or similar interest in any other Person.




22









 








          “Issuing Bank” means (i) JPMCB or any Affiliate thereof (including the Canadian Agent
and JPMorgan Chase Bank, N.A., London Branch), (ii) any other Canadian Lender or UK Lender, and
(iii) any other Lender or any Affiliate thereof agreed to by the Borrower, the Administrative Agent
and such other Lender, in each case in its capacity as an issuer of Letters of Credit hereunder.
Each Issuing Bank (as defined in the previous sentence) may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of such Issuing
Bank, in which case the term “Issuing Bank” shall include any such Person. With
respect to any Letter of Credit, “Issuing Bank” shall mean the issuer thereof.




          “Joinder Agreement” has the meaning set forth in Section 4.11(d).




          “JPMCB” means JPMorgan Chase Bank, N.A. and its successors.




          “Judgment Currency” has the meaning set forth in Section 13.22(c).




          “Law” means all common law and all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations
and orders of courts or other Governmental Authorities.




          “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum (without duplication) of (a) the aggregate
of the US Dollar Equivalents of the undrawn amounts of all outstanding Letters of Credit at such
time plus (b) the aggregate of the US Dollar Equivalents of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Applicable Borrower at such time. The LC Exposure of any
Issuing Bank or any participant in any Letter of Credit or LC Disbursement at any time shall be
such Issuing Bank’s or such participant’s Pro Rata Percentage of the aggregate LC Exposure of all
Issuing Banks and participants in such Letter of Credit or LC Disbursement at such time.




          “Lease” means, as to any Person, any operating lease other than a Capital Lease of any
Property (whether real, personal or mixed) by that Person as a lessee, together with all renewals,
extensions and options thereon.




          “Lenders” means the Persons listed on Schedule 2.1 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term “Lenders” includes the Swingline Bank and the
Alternative Currency Lenders.




          “Letter of Credit” has the meaning set forth in Section 2.7(a).




          “Letter of Credit Fee” has the meaning set forth in Section 5.4(a).




          “Letter of Credit Request” shall have the meaning set forth in Section
2.7(b)(i).




23









 








          “Leverage Ratio” means, at any date of determination and for the Borrower and the
Restricted Subsidiaries, determined on a consolidated basis, the ratio of (a) Adjusted Debt at such
date to (b) the sum of (i) EBITDA plus (ii) Base Rent Expense, in each case for the four
consecutive Fiscal Quarters then ending.




          “LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in any
currency for any Interest Period, the rate appearing on Reuters Screen LIBOR01 screen
displaying British Bankers’ Association Interest Settlement Rates for such currency (or on any
successor or substitute page provided by Reuters, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on such screen, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the London interbank market, at approximately 11:00 a.m.,
London Time, on the Quotation Date for such Interest Period, as the rate for deposits in such
currency in the London interbank market) with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, the “LIBO Rate” with
respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which deposits
in such currency the US Dollar Equivalent of which is $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately 11:00 a.m., London
Time, on the Quotation Date for such Interest Period.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, securing
any obligation of any Person or any other agreement having a similar effect, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement
(or any financing lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.




          “Loan” means a Revolving Loan or a Swingline Loan.




          “Loan Documents” means this Agreement, the Letters of Credit, the Applications, the
Parent Guaranty Agreement, the Subsidiary Guaranty Agreement, the Pledge Agreement, any Specified
Hedge Agreement and any and all instruments, certificates and agreements now or hereafter executed
or delivered to any Agent, any Issuing Bank or any Lender (or, in the case of any Specified Hedge
Agreement, any Affiliate of any Lender) or the Swingline Bank pursuant to any of the foregoing and
the transactions connected therewith, and all amendments, modifications, renewals, extensions,
increases and rearrangements of, and substitutions for, any of the foregoing.




          “Loan Parties” means each Borrower, each Subsidiary Guarantor, and each Pledgor.




          “Local Time” means (a) with respect to a Loan or Borrowing or a Letter of Credit
denominated in US Dollars, Houston Time, (b) with respect to a Loan or Borrowing or a Letter of
Credit denominated in Canadian Dollars, Toronto Time, and (c) with respect to a Loan or Borrowing
or a Letter of Credit denominated in any other Alternative Currency, London Time.




24









 








          “London Time” means the time in London, England.




          “Majority Lenders” means, at any time, Lenders holding at least 51% of the Total
Commitment (or, if the Total Commitment shall have terminated, the Total Credit Exposure) at such
time.




          “Mandatory Costs” has the meaning assigned to such term in Exhibit K.




          “Margin Stock” has the meaning assigned to such term in Regulation U and the rules,
regulations and interpretations of the Board thereunder.




          “Material Adverse Effect” means any material adverse effect on (a) the business,
property, operations or condition (financial or otherwise) of the Borrower and the Restricted
Subsidiaries, taken as a whole, (b) the binding nature, validity or enforceability of any of the
Loan Documents; (c) the ability of any Borrower or any other Loan Party to perform its payment or
other obligations under any Loan Document to which it is a party, or all Loan Documents taken as a
whole, or (d) the validity, perfection, priority or enforceability of the Liens granted to the
Administrative Agent in respect of any Collateral.




          “Material Debt” means Debt (other than the Loans and Letters of Credit) of the
Borrower or any Restricted Subsidiary in an aggregate principal or similar amount exceeding
$20,000,000 (or the US Dollar Equivalent thereof, if in a currency other than US Dollars).




          “Material Domestic Subsidiary” means each Domestic Subsidiary that is a Material
Restricted Subsidiary.




          “Material Restricted Subsidiary” means each Restricted Subsidiary (i) the consolidated
assets of which equal or exceed 10% of the consolidated assets of the Borrower as of the last day
of the most recently ended Fiscal Quarter or (ii) the consolidated revenues of which for the most
recently ended period of four consecutive Fiscal Quarters equal or exceed 10% of the consolidated
revenues of the Borrower for such period; provided that, if at any time the aggregate
consolidated assets of the Restricted Subsidiaries that are not Material Restricted Subsidiaries
shall equal or exceed 20% of the consolidated assets of the Borrower as of the last day of the most
recently ended Fiscal Quarter, or the aggregate consolidated revenues of such Restricted
Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters shall equal or
exceed 20% of the consolidated revenues of the Borrower for such period, the Borrower shall
designate sufficient Restricted Subsidiaries as “Material Restricted Subsidiaries” to
eliminate such condition, such designation to occur not later than the 15th Business Day after the
earlier of (x) the delivery pursuant to Sections 9.1(a) and (b) of financial
statements of the Borrower for the period during which the condition requiring such designation
shall first have existed and (y) in the event the condition requiring such designation is known to
a Financial Officer to exist as a result of an acquisition, disposition or transfer of material
assets (including Equity Interests), the date of such acquisition, disposition or transfer (and if
the Borrower shall fail to designate such Restricted Subsidiaries by such time, Restricted
Subsidiaries that are not Material Restricted Subsidiaries shall automatically be deemed to be
Material Restricted Subsidiaries in descending order based on the amounts of their consolidated
assets or consolidated revenues until such condition shall have been eliminated). Each Subsidiary




25









 







designated or deemed designated as a Material Restricted Subsidiary pursuant to the preceding
sentence shall for all purposes of this Agreement constitute a Material Restricted Subsidiary upon
such designation or deemed designation and until a subsequent designation pursuant to which one or
more other Restricted Subsidiaries are substituted for it. Each Restricted Subsidiary that
qualifies as a Material Restricted Subsidiary shall be deemed to be a Material Restricted
Subsidiary upon the delivery of the certificate referred to in Section 9.1(d) indicating
such Material Restricted Subsidiary and continue to be a Material Restricted Subsidiary until the
last
day of the Fiscal Quarter as of which such Restricted Subsidiary no longer qualifies as a
Material Restricted Subsidiary pursuant to this definition.




          “Maturity Date” means the earliest of (a) the date specified by the Borrower in
accordance with Section 4.9 for the termination of the Commitments, (b) the date the
principal amount then outstanding of, and accrued and unpaid interest on, the Loans becomes due
pursuant to Article XI, or (c) January 26, 2016.




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




          “Multiemployer Plan” means a multiemployer pension plan as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions or with respect to which the Borrower or any ERISA Affiliate has any liability,
contingent or otherwise.




          “New Funds Amount” has the meaning set forth in Section 4.11(g).




          “Non-Guaranteeing Restricted Subsidiary” has the meaning set forth in Section
9.7(a).




          “Note” means a promissory note executed and delivered pursuant to Section
4.1(e).




          “Notice of Borrowing” has the meaning set forth in Section 2.3.




          “Notice of Commitment Increase” has the meaning set forth in Section 4.11(b).




          “Notice of Rate Change/Continuation” has the meaning set forth in Section
3.1(c).




          “Obligations” means (i) the unpaid principal of and accrued and unpaid interest on the
Loans and Letter of Credit reimbursement obligations and all other obligations and liabilities of
the Borrowers or any other Loan Party (including interest accruing at the then-applicable rate
provided in this Agreement after the maturity of the Loans and Letter of Credit reimbursement
obligations and interest accruing at the then-applicable rate or rates provided in this Agreement
after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Borrower or any such Loan Party, whether or not
a claim for post-filing or post-petition interest is allowed in such proceeding) to the
Administrative Agent, any Issuing Bank, the Swingline Bank, any Lender, any Alternative Currency
Lender or any Indemnified Party hereunder or under any other Loan Document, (ii) until the
Commitments have expired or been terminated and the principal of, and accrued interest on, the
Loans and accrued fees payable hereunder shall have been paid in full and all Letters of




26









 







Credit
shall have expired or been terminated and all LC Disbursements shall have been reimbursed, Banking
Services Obligations, and (iii) in the case of a Specified Hedge Agreement, the obligations and
liabilities of each Loan Party thereunder owing or owed to (x) any Affiliate of any Lender or (y)
any Person that was a Lender at the time of entry into such Specified Hedge Agreement. Without
limiting the generality of the foregoing, “Obligations” includes any of the foregoing which may
arise under, out of, or in connection with, this Agreement or any other Loan Document, in each case
whether on account of principal, interest, Guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees
and disbursements of counsel to the Administrative Agent, any Lender, or any Issuing Bank that are
required to be paid by the Borrower or any other Loan Party pursuant to the terms of any of the
foregoing agreements), in each case whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred.




          “OFAC” means the Office of Foreign Assets Control of the U.S. Department of the
Treasury.




          “Officer’s Certificate” means a certificate signed in the name of the Borrower by a
Responsible Officer.




          “Other Activities” has the meaning set forth in Section 12.3.




          “Other Currency” has the meaning set forth in Section 13.22(a).




          “Other Financings” has the meaning set forth in Section 12.3.




          “Other Lender” has the meaning set forth in Section 2.4(g).




          “Other Taxes” means any and all present or future stamp or documentary taxes, value
added taxes, excise or property taxes, or similar taxes, charges or levies (other than Excluded
Taxes) which arise from any payment made hereunder or under any other Loan Document, or from the
execution or delivery of, or the enforcement of, or the registration of, or otherwise with respect
to, this Agreement or any other Loan Document.




          “Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.




          “Parent Guaranty Agreement” means a Guaranty Agreement in substantially the form of
Exhibit C-1 made by the Borrower in favor of the Secured Parties.




          “Participant” has the meaning set forth in Section 13.9(c).




          “Participating Member State” means any member state of the European Communities that
adopts or has adopted the Euro as its lawful currency in according with legislation of the European
Community relating to Economic and Monetary Union.




          “PBGC” means the Pension Benefit Guaranty Corporation or any governmental agency or
instrumentality succeeding to the functions thereof.




27









 








          “Pension Plan” means any employee pension benefit plan (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or with respect to which the
Borrower or any ERISA Affiliate has any liability, contingent or otherwise.




          “Pensions Regulator” means the body corporate called the Pensions Regulator
established under Part I of the Pensions Act 2004 of England and Wales.




          “Permitted Business” has the meaning set forth in Section 10.9.




          “Permitted Lien Debt” means all Debt permitted to be created, incurred or assumed by
the Borrower or any Restricted Subsidiary pursuant to Section 10.2(c) to the extent that
the aggregate principal amount of such Debt does not exceed, at any time outstanding, 15% of
Consolidated Net Worth, as determined on a pro forma basis at the time of the creation, incurrence
or assumption of such Debt.




          “Permitted Liens” means:




               (a) Liens for current taxes, assessments or other governmental charges which are not
delinquent or remain payable without any penalty, or the validity or amount of which is contested
in good faith and, if necessary for such contest, by appropriate proceedings; provided that
any right to seizure, levy, attachment, sequestration, foreclosure or garnishment with respect to
Property of the Borrower or any Restricted Subsidiary by reason of such Lien (i) has not matured,
(ii) has been and continues to be effectively enjoined or stayed or (iii) pertains to such Property
that, individually or in the aggregate, is immaterial to the operations of the Borrower and its
Subsidiaries taken as a whole;



               (b) consensual landlord Liens, Liens in respect of operating leases, nonconsensual Liens
imposed by operation of law, including, without limitation, landlord Liens for rent not yet due and
payable, and Liens for materialmen, mechanics, warehousemen, carriers, employees, workers,
repairmen, for current wages or accounts payable not yet delinquent and arising in the ordinary
course of business; provided that any right to seizure, levy, attachment, sequestration,
foreclosure or garnishment with respect to Property of the Borrower or any Restricted Subsidiary by
reason of such Lien (i) has not matured, (ii) has been, and continues to be, effectively enjoined
or stayed or (iii) pertains to such Property that, individually or in the aggregate, is immaterial
to the operations of the Borrower and its Subsidiaries taken as a whole;



               (c) easements, rights-of-way, restrictions and other similar Liens or imperfections to title
arising in the ordinary course of business that do not secure any Debt and which do not materially
interfere with the occupation, use and enjoyment by the Borrower or any Restricted Subsidiary of
the Property encumbered thereby or materially impair the value of such Property;



               (d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary
course of business (i) in connection with workers’ compensation, unemployment insurance and other
types of social security, or (ii) to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, performance or payment



28









 







bonds, purchase, construction or
sales contracts and other similar obligations, in each case not incurred or made in connection with
the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase
price of property;



               (e) Liens arising out of or in connection with any litigation or other legal proceeding which
are being contested in good faith by appropriate proceedings; provided
that (i) any right to seizure, levy, attachment, sequestration, foreclosure or garnishment
with respect to Property of the Borrower or any Restricted Subsidiary by reason of such Lien (x)
has not matured, (y) has been, and continues to be, effectively enjoined or stayed, or (z) pertains
to such Property that, individually or in the aggregate, is immaterial to the operations of the
Borrower and its Subsidiaries taken as a whole, and (ii) no Event of Default exists under
Section 11.1(h) relating thereto;



               (f) UCC protective filings (or similar personal property security filings in any location in
Canada or the UK) with respect to personal property leased to the Borrower or any Subsidiary under
operating leases or consigned to the Borrower or any Subsidiary; and



               (g) Liens in Equity Interests of the UK Borrower held by any Borrower or Restricted Subsidiary
arising by operation of the UK Borrower’s Articles of Association securing Debt of the Borrower or
any Restricted Subsidiary to the UK Borrower.



          “Person” means an individual, partnership, limited liability company, joint venture,
corporation, joint stock company, bank, trust, association, company, unincorporated organization,
Governmental Authority or other entity.




          “Pledge Agreement” means the Pledge and Security Agreement dated as of the Closing
Date, made by certain of the Loan Parties in favor of the Administrative Agent for the benefit of
the Secured Parties and covering all of the Equity Interests of each Domestic Subsidiary that is a
Material Restricted Subsidiary and not more or less than 65% of the Equity Interests of each of the
First-Tier Foreign Subsidiaries, and in substantially the form of Exhibit B.




          “Pledge Agreement Supplement” has the meaning set forth in Section 9.7(b).




          “Pledged Collateral” has the meaning set forth in the Pledge Agreement.




          “Pledgors” means the pledgors from time to time party to the Pledge Agreement.




          “Preferred Stock” means any class or series of Equity Interests of a Person which is
entitled to a preference or priority over any other class or series of Equity Interests of such
Person with respect to any distribution of such Person’s assets, whether with respect to dividends,
or upon liquidation, dissolution or termination, or both.




          “Prime Rate” means, on any day, the rate of interest per annum most recently publicly
announced by JPMCB as its prime rate in effect at its principal office in New York City, New York;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.




29









 








          “Pro Rata Percentage” means, with respect to any Lender at any time, with respect to
Revolving Loans (other than Alternative Currency Loans), LC Exposure or Swingline Exposure, a
fraction (expressed as a percentage), the numerator of which shall be the amount of such Lender’s
Commitment at such time and the denominator of which shall be the Total Commitment at such time
(provided that if the Commitments have terminated or expired, the Pro
Rata Percentages shall be determined based upon such Lender’s share of the Total Credit
Exposure at such time).




          “Property” or “Properties” means any interest or right in any kind of property
or assets, whether real, personal, or mixed, owned or leased, tangible or intangible, and whether
now held or hereafter acquired.




          “Quotation Date” means (a) with respect to any Eurocurrency Borrowing denominated in
any currency other than Sterling for any Interest Period, two Business Days prior to the
commencement of such Interest Period and (b) with respect to any Eurocurrency Borrowing denominated
in Sterling for any Interest Period, the first Business Day of such Interest Period.




          “Reducing Percentage Lender” has the meaning set forth in Section 4.11(g).




          “Reduction Amount” has the meaning set forth in Section 4.11(g).




          “Register” has the meaning set forth in Section 13.9(b).




          “Regulation T” means Regulation T of the Board and any successor to all or a portion
thereof.




          “Regulation U” means Regulation U of the Board and any successor to all or a portion
thereof.




          “Regulation X” means Regulation X of the Board and any successor to all or a portion
thereof.




          “Related Facilities” means the revolving credit facilities, letter of credit
facilities, bankers’ acceptance facilities or similar working capital facilities evidencing
unsecured Debt of one or more Non-Guaranteeing Restricted Subsidiaries.




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




          “Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the environment.




          “Responsible Officer” means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Assistant Treasurer of the Borrower.




          “Restricted Investments” has the meaning set forth in Section 10.5(b).




30









 








          “Restricted Payments” has the meaning set forth in Section 10.3.




          “Restricted Subsidiary” means the Subsidiaries designated as Restricted Subsidiaries
in Section 7.13 of the Disclosure Letter, together with any Subsidiary of the
Borrower hereafter created or acquired until it is designated by the Board of Directors of the
Borrower as an Unrestricted Subsidiary pursuant to the applicable provisions hereof. Any Subsidiary
designated as an Unrestricted Subsidiary for purposes of this Agreement may thereafter be
designated as a Restricted Subsidiary (upon approval by the Board of Directors of the Borrower)
upon fifteen (15) days’ prior written notice to the Administrative Agent if, at the time of such
designation and immediately after giving effect thereto and immediately after giving effect to the
concurrent retirement of any Debt, (i) no Event of Default or Default shall have occurred and be
continuing, (ii) such Subsidiary is organized under the laws of Canada, France, Holland, the UK,
the United States or such other member of the Organization for Economic Cooperation and Development
as to which the Borrower has so notified the Administrative Agent within thirty (30) days following
the creation or acquisition of such Subsidiary, or any state, province or member country thereof,
(iii) except for (x) directors’ qualifying shares, (y) shares required by applicable law to be held
by a Person other than the Borrower or any of its Subsidiaries, and (z) Equity Interests held by
others in Persons less than 100% of the Equity Interests in which are acquired pursuant to an
Acquisition not prohibited hereby, 100% of each class of voting Equity Interests in such Subsidiary
is owned by the Borrower or a wholly-owned Restricted Subsidiary, and (iv) the Borrower and such
Subsidiary shall have complied with Section 9.8. Except for director’s qualifying shares,
shares required by applicable law to be held by a Person other than the Borrower or any of its
Subsidiaries and Equity Interests held by others in Persons less than 100% of the Equity Interests
in which are acquired pursuant to an Acquisition not prohibited hereby, each Restricted Subsidiary
shall be directly or indirectly wholly-owned by the Borrower. Any designation that fails to comply
with the terms of this definition shall be null and void and of no effect whatsoever. Upon such
designation, the Borrower shall deliver to the Administrative Agent a certified copy of the
resolutions giving effect to such designation and an Officer’s Certificate certifying that such
designation complied with the foregoing conditions. At all times during the term of this Agreement,
(a) each Subsidiary Borrower (so long as it is a Subsidiary Borrower), (b) each Guarantor (so long
as it is a Guarantor), (c) each Pledgor (so long as it is a Pledgor), and (d) if not an
Unrestricted Subsidiary, each of their respective Subsidiaries, shall be Restricted Subsidiaries.




          “Return Event” has the meaning set forth in Section 11.2.




          “Revolving Loan” means a Loan made pursuant to Section 2.1. Revolving Loans
may be Alternative Currency Loans.




          “Secured Parties” means, collectively, all Lenders, Agents, Issuing Banks, and
Indemnified Parties. “Secured Party” means any of such Persons.




          “Similar Businesses” has the meaning set forth in Section 7.14.




31









 








          “Specified Hedge Agreement” means any Hedge Agreement entered into by the Borrower and
any Lender or Affiliate of any Lender related to interest rates under this Agreement.




          “Spot Currency Determination Date” shall be the date that the Administrative Agent
determines the US Dollar Equivalent of any Loan or LC Exposure denominated in an
Alternative Currency and provides notice of such determination to the Borrower and may
include:




               (a) with respect to a Borrowing, the date on or about the date of (i) the delivery of a Notice
of Borrowing or Notice of Rate Change/Continuation with respect to such Borrowing or (ii) each
request for the making of any Swingline Loan or Alternative Currency Loan;



               (b) with respect to a Letter of Credit, each of the following: (i) each date of issuance of a
Letter of Credit, (ii) each date of an amendment, renewal or extension of a Letter of Credit, and
(iii) each date of any payment by an Issuing Bank under any Letter of Credit;



               (c) the last Business Day of every calendar month; and



               (d) any other Business Day elected by the Administrative Agent in its discretion or upon
instruction by the Majority Lenders.



          “Spot Exchange Rate” means, on any day, for purposes of determining the US Dollar
Equivalent of any currency other than US Dollars, the rate at which such other currency may be
exchanged into US Dollars at the time of determination on such day as set forth on the applicable
Reuters World Currency Page. In the event that such rate does not appear on the applicable Reuters
World Currency Page, the Spot Exchange Rate shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the Administrative Agent
and the Borrower, or, in the absence of such an agreement, such Spot Exchange Rate shall instead be
the arithmetic average of the spot rates of exchange of the Administrative Agent in the market
where its foreign currency exchange operations in respect of such currency are then being
conducted, at or about such time as the Administrative Agent shall elect after determining that
such rates shall be the basis for determining the Spot Exchange Rate, on such date for the purchase
of US Dollars for delivery two Business Days later; provided that if at the time of any
such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may
use any reasonable method it deems appropriate to determine such rate, and such determination shall
be conclusive absent manifest error; provided, further, that in connection with any
determination of such rate, upon the written request of the Borrower, the Administrative Agent
shall notify the Borrower of the sources used to determine such rate.




          “Standard & Poor’s” means Standard & Poor’s, a division of the McGraw-Hill Companies,
Inc., and any successor to its rating agency business.




32









 








          “Stated Amount” means, with respect to any Letter of Credit at any time, the maximum
amount then available to be drawn thereunder (without regard to whether any conditions to drawing
could then be met) at such time.




          “Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset or similar percentages (including any
marginal, special, emergency or supplemental reserves) expressed as
a decimal established by any Governmental Authority of the United States or of the
jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which
banks in such jurisdiction are subject, for any category of deposits or liabilities customarily
used to fund loans in such currency or by reference to which interest rates applicable to loans in
such currency are determined. Such reserve, liquid asset or similar percentages shall include those
imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
such Regulation D or any other applicable law, rule or regulation. The Statutory Reserve Rate shall
be adjusted automatically on and as of the effective date of any change in any reserve, liquid
asset or similar percentage.




          “Sterling” and “£” means the lawful currency of the UK.




          “Subsidiary” means, with respect to any Person (for purposes of this definition, the
“parent”) on any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the parent in the
parent’s consolidated financial statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) more than 50% of the Equity Interests in which, or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests in which are, as of such date, owned, Controlled or held, or (b) that
is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent
or by the parent and one or more subsidiaries of the parent. Unless the context otherwise clearly
requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Borrower.




          “Subsidiary Borrower” has the meaning set forth in the Preamble to this Agreement.
Each Subsidiary Borrower is and shall remain a Restricted Subsidiary for so long as it is a
Subsidiary Borrower.




          “Subsidiary Guarantor” means each Subsidiary of the Borrower which is a party to the
Subsidiary Guaranty Agreement. The initial Subsidiary Guarantors are K&G Men’s Company, Inc.; TMW
Merchants LLC; TMW Marketing Company, Inc. and TMW Purchasing LLC.




          “Subsidiary Guaranty Agreement” means a Guaranty Agreement in substantially the form
of Exhibit C-2 made by the Subsidiary Guarantors in favor of the Secured Parties.




33









 








          “Swingline Bank” means JPMCB, in its capacity as lender of Swingline Loans hereunder,
and its successors in such capacity.




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be
its Pro Rata Percentage of the total Swingline Exposure at such time.




          “Swingline Loan” means a Loan made pursuant to Section 2.6.




          “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express
Transfer payment system which utilizes a single shared platform and which was effective on November
19, 2007.




          “Target Day” means any day on which TARGET2 is open for the settlement of payments in
Euro.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, assessments, fees, charges or withholdings imposed by any Governmental Authority, and
all liabilities with respect thereto, including any interest, additions to tax or penalties
applicable thereto and such taxes, levies, imposts, duties, deductions, assessments, fees, charges,
withholdings or liabilities whatsoever, in the case of each Lender, each Issuing Bank, each Agent,
or any other recipient of any payment to be made by or on account of any obligation of any Loan
Party, excluding, with respect to each Lender, each Issuing Bank, each Agent, or any other
recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder:




               (a) taxes imposed on (or measured by) its net income, profits or capital (however
denominated), and franchise taxes imposed on it, by the United States of America, or by the
jurisdiction under the laws of which such Lender, such Issuing Bank, such Agent or other recipient
(as the case may be) is organized or has its principal office or, in the case of any Lender or
Issuing Bank, in which its applicable lending office is located or in which it is otherwise
carrying on business;



               (b) any branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which a Loan Party is located or described in subclause
(a);



               (c) in the case of a Lender or an Issuing Bank, any withholding tax that (i) is imposed (other
than solely as a result of the operation of the CAM Exchange) on amounts payable to such Lender or
Issuing Bank (or, in the case of Canadian withholding taxes, would have been imposed if a payment
had been made) at the time such Lender or Issuing Bank becomes a party to this Agreement (or
designates a new lending office), or (ii) is attributable to such Lender’s or such Issuing Bank’s
failure to comply with Section 4.8(e), except (x) in the case of subclause (i) to the
extent that such Lender or Issuing Bank (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional amounts from a Loan
Party with respect to such withholding tax pursuant to Section 4.8(a) , or (y) in the case
of either subclause (i) or (ii) to the extent that such withholding tax shall have resulted from
the making of any payment to a location other than an office designated by the



34









 







Applicable Agent or
such Lender for the receipt of payments of the applicable type from the Applicable Borrower;



               (d) in the case of any Foreign Lender that is subject to withholding tax on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new
lending office), any additional withholding tax that is imposed on amounts payable to such Foreign
Lender as a result of any Change in Law; and



               (e) any United States federal taxes imposed pursuant to FATCA on any “withholdable
payment” (as defined under FATCA).


(collectively, “Excluded Taxes”).




          “Toronto Time” means the time in Toronto, Ontario.




          “Total Commitment” means, at any time, the sum of the Commitments of all Lenders at
such time. The initial amount of the Total Commitment is $200,000,000.




          “Total Credit Exposure” means, at any time, the sum of the Credit Exposures of all
Lenders at such time.




          “Total Funded Debt” means, at any time as to the Borrower and the Restricted
Subsidiaries determined on a consolidated basis, an amount equal to the sum (without duplication)
of (a) the aggregate principal amount of all Loans outstanding on such date plus (b) the aggregate
principal amount of drawings under Letters of Credit issued hereunder and under the Related
Facilities which have not then been reimbursed pursuant to Section 2.7 and thereunder, as
applicable, plus (c) the aggregate principal amount of all other outstanding Debt of the Borrower
and the Restricted Subsidiaries of the type described in (without duplication) subsections
(a)—(f) of the definition of “Debt” (excluding (i) any undrawn amounts under
outstanding letters of credit and letters of guaranty and (ii) any Guarantee of any obligation that
is not funded debt, including for the avoidance of doubt net obligations under a Hedge Agreement
prior to an occurrence of an actual termination event thereunder).




          “Transactions” means the execution, delivery and performance of the Loan Documents by
the parties thereto, the borrowing of the Loans and the use of the proceeds thereof, and the
issuance of Letters of Credit hereunder.




          “Type”, when used in reference to any Revolving Loan or Revolving Borrowing, refers to
whether the rate of interest on such Revolving Loan, or on the Revolving Loans comprising such
Revolving Borrowing, is determined by reference to the Adjusted LIBO Rate, the Adjusted EURIBO
Rate, the CB Floating Rate, the CDOR Rate or the Canadian Prime Rate.




          “UCC” means the Uniform Commercial Code as from time to time in effect in the relevant
jurisdiction.




          “UK” means the United Kingdom of Great Britain and Northern Ireland.




          “UK Borrower” has the meaning set forth in the preamble hereto.




35









 








          “UK Commitment” means, with respect to each UK Lender, the commitment of such UK
Lender hereunder to make Alternative Currency Loans and to issue and acquire participations in
Letters of Credit, in each case denominated in Euro or Sterling, as such commitment may be (a)
reduced from time to time pursuant to Section 4.10 or increased from time to time pursuant
to Section 4.11, (b) reduced or increased from time to time pursuant to Section
2.4(k), and (c) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 13.9. The initial amount of each UK Lender’s UK Commitment
is set forth and so captioned in Schedule 2.1, in the Assignment and Assumption
pursuant to which such Lender shall have assumed its UK Commitment, or in the Joinder Agreement
pursuant to which such UK Lender became a UK Lender, as applicable.




          “UK Lender” means (i) as of the Closing Date, each Alternative Currency Lender
designated as a UK Lender in Schedule 2.1 or a commitment to issue Letters of Credit
denominated in Sterling or Euro, and (ii) after the Closing Date, each Lender that becomes a UK
Lender and makes Loans and issues Letters of Credit denominated in Euro or Sterling, or, if the
commitments to make such Loans or issue such Letters of Credit have terminated or expired, a Lender
holding direct interests in Loans or Letters of Credit denominated in Sterling or Euro. A UK Lender
may, in its discretion, arrange for one or more UK Loans and Letters of Credit denominated in
Sterling or Euro to be made or issued, as the case may be, by one or more of its domestic or
foreign branches or Affiliates, in which case the term “UK Lender” shall include any such branch or
Affiliate with respect to the Loans made or Letters of Credit issued by such Person.




          “UK Loan” means a Loan denominated in Sterling or Euro pursuant to Section
2.4.




          “UK Treaty Lender” means a Lender that is a resident in a jurisdiction with which the
United Kingdom has a double taxation agreement which makes provision for full exemption from United
Kingdom taxation imposed on interest and which does not carry on business in the United Kingdom
through a permanent establishment with which a payment of interest under a UK Loan or a Letter of
Credit issued to the UK Borrower is effectively connected.




          “United States” means the United States of America, each State thereof and the
District of Columbia.




          “Unrestricted Subsidiary” means each Subsidiary designated as an Unrestricted
Subsidiary in Section 7.13 of the Disclosure Letter, together with any Subsidiary which is
hereafter designated by the Board of Directors of the Borrower as an Unrestricted Subsidiary, and
in each case and without further action or qualification, any Subsidiary of such Subsidiary so
designated as an Unrestricted Subsidiary. Any Subsidiary may be designated an Unrestricted
Subsidiary (upon approval by the Board of Directors of the Borrower) upon fifteen (15) days’ prior
written notice to the Administrative Agent if, at the time of such designation and immediately
after giving effect thereto and immediately after giving effect to the concurrent retirement of any
Debt, (i) no Event of Default or Default shall have occurred and be continuing, (ii) such
Subsidiary does not own, directly or indirectly, any Debt of or Equity Interest in any Borrower or
any Restricted Subsidiary, (iii) such Subsidiary does not own or hold any Lien on




36









 







any property of
any Borrower or any Restricted Subsidiary, (iv) such Subsidiary is not liable, directly or
indirectly, with respect to any Debt other than Unrestricted Subsidiary Indebtedness, other than
(A) a note payable of up to $1.5 million in principal amount issued by an Unrestricted Subsidiary
as part of the purchase price of an acquired business, which may be guaranteed by the Borrower
and/or any one or more of the Restricted Subsidiaries and (B) any other Debt of an Unrestricted
Subsidiary which may be guaranteed by the Borrower and/or any one or more of the Restricted
Subsidiaries, the incurrence of which guarantee is permitted by compliance with
Section 10.5, and (v) such designation would be permitted by Section 10.5.
Upon such designation, the Borrower shall deliver to the Administrative Agent a certified copy of
the resolution giving effect to such designation and an Officer’s Certificate certifying that such
designation complied with the foregoing conditions. The aggregate Investments outstanding in any
Person designated as an Unrestricted Subsidiary shall be considered Investments in such
Unrestricted Subsidiary.




          “Unrestricted Subsidiary Indebtedness” of any Person means Debt of such Person (a) as
to which neither a Borrower nor any Restricted Subsidiary is directly or indirectly liable (by
virtue of such Borrower’s or such Restricted Subsidiary’s being the primary obligor, or guarantor
of, or otherwise contractually liable in any respect on, such Debt), (b) which, upon the occurrence
of a default with respect thereto, does not result in, or permit any holder of any Debt of any
Borrower or any Restricted Subsidiary to declare, a default on such Debt of the Borrower or any
Restricted Subsidiary and (c) which is not secured by any assets of any Borrower or any Restricted
Subsidiary.




          “Unused Commitment” means, as to any Lender at any time, an amount equal to such
Lender’s Commitment at such time minus such Lender’s Credit Exposure (excluding such Lender’s
Swingline Exposure) at such time.




          “US Dollar Equivalent” means at any time, (a) with respect to any amount denominated
in US Dollars, such amount, and (b) with respect to any amount denominated in an Alternative
Currency, the equivalent in US Dollars of such amount as determined by the Administrative Agent in
accordance with normal banking industry practice, using the Spot Exchange Rate with respect to such
Alternative Currency in effect for such amount on such date. The US Dollar Equivalent at any time
of the amount of any Letter of Credit, LC Disbursement or Loan denominated in any currency other
than US Dollars shall be the amount thereof most recently determined as provided in Section
1.4.




          “US Dollars” and “$” means lawful currency of the United States of America.




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          1.2. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurocurrency
Loan” or a “CDOR Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”). Borrowings
also may be classified and referred to by Class




37









 







(e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency Revolving Borrowing” or “CDOR
Revolving Borrowing”).




          1.3. Terms Generally. The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be
construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to
any law or regulations herein shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, (f) the word “or” is not exclusive, (g) the
words “asset”, “property”, “Property” and “Properties” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights, and (h) unless the context clearly requires
otherwise, the phrase “the Borrower” shall mean The Men’s Wearhouse, Inc.




          1.4. Exchange Rates; Currency.




               (a) Whenever in this Agreement an amount is expressed in US Dollars, but such amount is
applicable to a Revolving Loan or Letter of Credit denominated in an Alternative Currency, such
amount shall be the relevant Alternative Currency Equivalent of such US Dollar amount (rounded to
the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the Administrative Agent.



               (b) The Administrative Agent shall determine the Spot Exchange Rates as of each Spot Currency
Determination Date to be used for calculating the US Dollar Equivalent of Loans and LC Exposures
denominated in Alternative Currencies. Such Spot Exchange Rates shall become effective as of such
Spot Currency Determination Date and shall be the Spot Exchange Rates employed in converting any
amounts between the applicable currencies until the next Spot Currency Determination Date.



          1.5 Accounting Principles. All accounting and financial terms used and not otherwise defined
herein shall be determined in accordance with GAAP, as in effect from time to time, except to the
extent that a deviation therefrom is expressly stated. Notwithstanding the foregoing, Debt of the
Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal
amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall
be disregarded. Should, however, there be a change in GAAP or the application thereof from that in
effect on the Closing Date and the Borrower notifies the




38









 







Administrative Agent that the Borrower
requests an amendment to any provision of this Agreement to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Majority Lenders request
an amendment of any provisions of this Agreement for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provisions amended in accordance
herewith. The Borrower and the Lenders agree to negotiate in good faith to enter into an amendment
to this Agreement in order to conform the defined terms set forth in Section 1.1 or the
covenants set forth in Article X, or both, in such respects as shall reasonably be deemed
necessary by the Majority Lenders and acceptable to the Borrower so that the criteria for
evaluating the matters contemplated to be evidenced by such covenants are substantially the same
criteria as were effective prior to any such change in GAAP or the application thereof, and the
Borrower shall be deemed to be in compliance with such covenants until the date of such amendment,
if and to the extent that the Borrower would have been in compliance therewith under GAAP as in
effect and applied immediately prior to such change.




          1.6 Redenomination of Certain Foreign Currencies.




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



               (b) Without prejudice and in addition to any method of conversion or rounding prescribed by
any EMU Legislation and (i) without limiting the liability of any Borrower for any amount due under
this Agreement and (ii) without increasing any Commitment of any Lender, all references in this
Agreement to minimum amounts (or integral multiples thereof) denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the Closing Date shall, immediately upon such adoption, be replaced by references to such minimum
amounts (or integral multiples thereof) as shall be specified herein with respect to Borrowings
denominated in Euro.



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



39









 





ARTICLE II

THE CREDITS




          2.1. The Revolving Loans.




               (a) Upon the terms and conditions and relying upon the representations and warranties herein
set forth, each Lender severally agrees to make Revolving Loans to one or more of the Eligible
Borrowers from time to time on any one or more Business
Days during the Availability Period in an aggregate principal amount that will not result in
the US Dollar Equivalent of (i) such Lender’s Credit Exposure exceeding such Lender’s Commitment,
(ii) the Total Credit Exposure exceeding the Total Commitment, or (iii) the aggregate principal
amount of all outstanding Revolving Loans and Letters of Credit denominated in Alternative
Currencies exceeding the Alternative Currency Sublimit. Within such limits and during such period
and subject to the terms and conditions of this Agreement, the Borrowers may borrow, repay and
reborrow Revolving Loans hereunder.



               (b) Except as set forth in this subsection (b), all Revolving Loans shall be advanced
to the Borrower in US Dollars. Subject to this Section 2.1 and Section 2.2,
Revolving Loans may, if made in accordance with Sections 2.4 and 3.1, respectively,
be requested in, converted into or continued in, one or more of the Alternative Currencies. Subject
to the provisions of this Agreement, including Section 2.4, the Alternative Currency
Lenders of each Class shall make Alternative Currency Loans of that Class to Eligible Borrowers of
that Class, notwithstanding that in doing so, such Lenders may be owed amounts by one or more
Borrowers in percentages different from such Lenders’ respective Pro Rata Percentages.



               (c) If a Borrowing is made in an Alternative Currency, then outstanding Borrowings in US
Dollars shall be reallocated and subsequent Borrowings requested in US Dollars shall be advanced
first by Lenders that do not have Commitments in such Alternative Currency, in each case so that
the aggregate amount of Revolving Loans owing to each of the Lenders under all Borrowings is equal
to its Pro Rata Percentage of the Total Commitment. If a Borrowing is made in US Dollars, then
outstanding Borrowings denominated in any Alternative Currency shall be reallocated and subsequent
Borrowings requested in that Alternative Currency shall be advanced first by Lenders of such Loans,
in each so that the aggregate amount of Revolving Loans owing to each of the Lenders under all
Borrowings is equal to its Pro Rata Percentage of the Total Commitment. Except for (i) Borrowings
advanced in Alternative Currencies, (ii) the repayment of such Borrowings (which shall be pro rata
for the benefit of the Lenders advancing same), (iii) subsequent Borrowings in US Dollars or
Alternative Currencies provided in this paragraph to bring each Lender back into compliance with
such Lender’s Pro Rata Percentage of the Total Commitment, or (iv) as otherwise provided herein,
each Borrowing, each payment or prepayment of principal of the Loans, each payment of interest on
such Loans, each other reduction of the principal of or interest outstanding on such Loans, however
achieved, each payment of the commitment fees and each reduction of the Commitments shall be made,
as applicable, in accordance with each Lender’s respective Pro Rata Percentage of the Total
Commitment. Each Applicable Borrower shall be obligated to pay any breakage fees or costs pursuant
to Section 3.5 in connection with any such relocation of outstanding Revolving Loans.



40









 





               (d) By written request (which request shall be delivered to the Applicable Agent in accordance
with Section 2.3 or 2.4, as the case may be), the Borrower may request that any
Revolving Loan to it be made in Canadian Dollars, Sterling or Euro. Any Loan to the Canadian
Borrower shall be made only in Canadian Dollars. Any Loan to the UK Borrower shall be made only in
Sterling or Euro. All Loans shall be repaid in the currency in which such Loan was made, and all
interest payments thereon shall be made in the currency in which such Loan was made. The amount of
an Alternative Currency Loan shall at all times be
deemed to equal the US Dollar Equivalent thereof determined as of the most recent Spot
Currency Determination Date using the Spot Exchange Rate.



          2.2. Loans and Borrowings.




               (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans of
the same Type and Class made by the Lenders ratably in accordance with their respective Commitments
of the applicable Class. The failure of any Lender to make any Loan to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation (if any) hereunder to make its Loan
on the date of such Borrowing; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for the failure of any other Lender to make any Loan to be made by
such other Lender on the date of any Borrowing.



               (b) Subject to Section 3.3, each Revolving Borrowing shall be comprised (i) in the
case of Borrowings denominated in US Dollars, entirely of Eurocurrency Loans determined by
reference to the Adjusted LIBO Rate or CB Floating Rate Loans, as the Borrower may request in
accordance herewith, (ii) in the case of Borrowings denominated in Canadian Dollars, entirely of
Canadian Prime Loans or CDOR Loans, as the Borrower or the Canadian Borrower, the case may be, may
request in accordance herewith, and (iii) in the case of Borrowings denominated in Sterling or
Euro, entirely of Eurocurrency Loans determined by reference to the Adjusted LIBO Rate or the
Adjusted EURIBO Rate, as the case may be, as the Borrower or the UK Borrower, as the case may be,
may request in accordance herewith; provided that all Borrowings made on the Closing Date
must be made as CB Floating Rate Borrowings or Canadian Prime Rate Borrowings unless the Borrower
shall have delivered to the Administrative Agent an agreement that it will be bound by the
provisions of Section 3.5 notwithstanding that this Agreement might not then be effective
at least three Business Days prior to the Closing Date. Each Swingline Loan shall be a CB Floating
Rate Loan. Borrowings requested by, made to, and maintained by, the UK Borrower may only be
denominated in Sterling or Euro, and Borrowings requested by, made to, and maintained by, the
Canadian Borrower may only be denominated in Canadian Dollars. Loans denominated in Canadian
Dollars shall be made only by the Canadian Lenders and only to an Eligible Borrower of such Loans,
and Loans denominated in Euro or Sterling shall be made only by the UK Lenders and only to an
Eligible Borrower of such Loans.



               (c) Each Lender at its option may make any Loan by causing any domestic or foreign office,
branch or Affiliate of such Lender (an “Applicable Lending Installation”) that has been
designated by such Lender to the Applicable Agent and the Borrower to make such Loan;
provided that any exercise of such option shall not affect the obligation of the Applicable
Borrower to repay such Loan in accordance with the terms of this Agreement or



41









 







the obligation of any
such Lender to perform its Commitment. All terms of this Agreement shall apply to any such
Applicable Lending Installation of such Lender and the Loans and any Notes issued hereunder shall
be deemed held by each Lender for the benefit of any such Applicable Lending Installation. Each
Lender may, by written notice to the Administrative Agent and (through the Administrative Agent)
the Borrower, designate replacement or additional Applicable Lending Installations through which
Loans will be made by it and for whose account Loan payments are to be made.



               (d) Each Borrowing of Revolving Loans by a Borrower shall be in an amount of the applicable
Borrowing Minimum or an integral multiple of the applicable Borrowing Multiple in excess thereof;
provided that a CB Floating Rate Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the Total Commitment or that is required to finance the reimbursement
of an LC Disbursement as contemplated in Section 2.7(d).



          2.3. Borrowing Procedure. Each Borrowing shall be made upon prior written notice from the
Applicable Borrower to the Applicable Agent in the form of Exhibit E (a “Notice of
Borrowing”). Such Notice of Borrowing shall be delivered to the Applicable Agent,




               (a) in the case of Revolving Borrowings that are CB Floating Rate Loans, not later than 10:00
a.m., Houston Time, on the requested Borrowing Date;



               (b) in the case of Eurocurrency Borrowings that are denominated in US Dollars, not later than
10:00 a.m., Local Time, three (3) Business Days prior to the requested Borrowing Date;



               (c) in the case of Alternative Currency Loans, as provided in Section 2.4(c); and



               (d) in the case of Swingline Loans, as provided in Section 2.6;


provided that any such notice of a CB Floating Rate Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.7(d) may be given not later than 9:00
a.m., Houston Time, on the date of the proposed Borrowing.




          Each Notice of Borrowing shall be irrevocable and shall specify (i) the identity of the
Applicable Borrower; (ii) the aggregate principal amount of the requested Borrowing; (iii) the
currency in which such Borrowing shall be denominated (which shall be a currency permitted by
Section 2.2(b)); (iv) the requested Borrowing Date (which shall be a Business Day with
respect to such Borrowing); (v) the Class and Type of Borrowing requested; (vi) with respect to any
Eurocurrency Borrowing or CDOR Borrowing, the Interest Period to be applicable to such Borrowing
(which shall be a period contemplated by the definition of the term “Interest Period”); and
(vii) the location and number of the Applicable Borrower’s account in which the proceeds of the
requested Borrowing are to be deposited or, in the case of a CB Floating Rate Borrowing requested
to finance the reimbursement of an LC Disbursement as contemplated by Section 2.7(d), the
identity and the account of the Issuing Bank to be reimbursed. If no currency is specified in a
Notice of Borrowing, the requested Borrowing (x) if to the Borrower, shall be denominated in US
Dollars; (y) if to the Canadian Borrower, shall be denominated in Canadian Dollars; and (z) if to
the UK Borrower, shall be denominated in Sterling. If no election as to the




42









 







Type of Borrowing is
specified in a Notice of Borrowing, the requested Borrowing shall be (A) if denominated in US
Dollars, a CB Floating Rate Borrowing; (B) if denominated in Canadian Dollars, a Canadian Prime
Borrowing; and (C) if denominated in Sterling or Euro, a Eurocurrency Borrowing. If no Interest
Period is specified with respect to any requested Eurocurrency Borrowing or CDOR Borrowing, the
Applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.




          Promptly upon its receipt of a Notice of Borrowing, the Applicable Agent shall advise each
Lender that will make a Loan as part of the requested Borrowing of the details thereof, the
identity of the Applicable Borrower, the currency in which such Revolving Borrowing is to be
denominated, the amount of such Lender’s Loan to be made as part of the requested Borrowing, the
interest rate option and, if any, the Interest Period selected, and the proposed Borrowing Date.




          The Applicable Borrower may give the Applicable Agent telephonic notice by the required time
of any proposed Borrowing under this Section 2.3; provided that such telephonic
notice shall be irrevocable and shall be promptly confirmed in writing by delivery to the
Applicable Agent of a Notice of Borrowing. Neither any Applicable Agent nor any Lender shall incur
any liability to any Borrower or any other Person in acting upon any telephonic notice referred to
above which such Applicable Agent believes in good faith to have been given by any Borrower or for
otherwise acting in good faith under this Section 2.3.




          2.4. Alternative Currency Loans. Subject to the terms and conditions set forth herein, each
Alternative Currency Lender with an Alternative Currency Commitment agrees to make Revolving Loans
denominated in such Alternative Currency from time to time during the Availability Period to one or
more of the Eligible Borrowers with respect to such Alternative Currency in an aggregate principal
amount at any time outstanding that will not result in the US Dollar Equivalent of (i) such
Lender’s Credit Exposure exceeding such Lender’s Commitment, (ii) the Total Credit Exposure
exceeding the Total Commitment, (iii) the aggregate principal amount of all Revolving Loans and LC
Exposure (in each case, denominated in an Alternative Currency) exceeding the Alternative Currency
Sublimit, (iv) the aggregate of the principal amount of all such Lender’s Loans and LC Exposure
denominated in such Alternative Currency exceeding such Lender’s applicable Alternative Currency
Commitment, or (v) the aggregate of the principal amount of all Loans and LC Exposure in such
Alternative Currency exceeding the applicable aggregate Alternative Currency Commitments. Within
the foregoing limits and subject to the terms and conditions set forth herein, the Eligible
Borrowers may borrow, prepay and reborrow Alternative Currency Loans.




               (a) Each Alternative Currency Loan shall be made as part of a Borrowing consisting of
Alternative Currency Loans of the same Class and currency made by the Alternative Currency Lenders
with respect to such Class and currency to an Eligible Borrower with respect to such currency, with
the Alternative Currency Loan of each Alternative Currency Lender being in an amount determined
according to the ratio of its Alternative Currency Commitment with respect to such Alternative
Currency to the total of all Alternative Currency Commitments with respect to such Alternative
Currency. The Alternative Currency Loans denominated in Sterling or Euro shall be Eurocurrency
Loans; and the Alternative Currency Loans denominated in Canadian Dollars shall be CDOR Loans or
Canadian Prime Loans. The



43









 







principal of and interest on each Alternative Currency Borrowing shall be
paid in the currency in which such Alternative Currency Borrowing was denominated and shall be paid
to the Applicable Agent for the ratable (relative to Loans made as a part of such Borrowing)
account of the Alternative Currency Lenders with respect to such Class and currency.



               (b) To request an Alternative Currency Loan, the Applicable Borrower shall notify the
Applicable Agent of such request in writing (i) in the case of Alternative
Currency Loans denominated in Sterling or Euro, not later than 11:00 a.m., London Time, four
(4) Business Days prior to the proposed Borrowing Date; (ii) in the case of Alternative Currency
Loans denominated in Canadian Dollars and that are Canadian Prime Loans, not later than 11:00 a.m.
Toronto Time, one (1) Business Day prior to the requested Borrowing Date; and (iii) in the case of
Alternative Currency Loans denominated in Canadian Dollars and that are CDOR Loans, not later than
11:00 a.m., Toronto Time, three (3) Business Days prior to the requested Borrowing Date. The
Applicable Agent will promptly advise the applicable Alternative Currency Lenders of any such
notice received.



               (c) Each applicable Alternative Currency Lender shall make each Alternative Currency Loan to
be made by it hereunder on the proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, Local Time, to the account of the Applicable Agent most recently designated by
it for such purpose by notice to the applicable Alternative Currency Lenders. The Applicable Agent
will make such Alternative Currency Loans available to the Applicable Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Applicable Borrower
designated by such Borrower in the applicable Notice of Borrowing and acceptable to the Applicable
Agent.



               (d) Loans made and Letters of Credit issued in the UK may be made only by Lenders and Issuing
Banks that are, at the time of such Loan or the issuance of such Letter of Credit, legally entitled
to do so in the UK, and Loans made and Letters of Credit issued in Canada may be made only by
Lenders and Issuing Banks that are, at the time of such Loan or the issuance of such Letter of
Credit, legally entitled to do so in Canada; provided, that Article III and
Section 2.7(a)(i) shall apply.



               (e) Except as the Applicable Borrower and the applicable Alternative Currency Lenders may
otherwise agree, Alternative Currency Loans may, at the conclusion of the Interest Period (if any)
applicable thereto, be continued in the manner (to the extent applicable) set forth in Section
3.1(b). If the Applicable Borrower fails to either repay an Alternative Currency Loan on or
before the last day of any applicable Interest Period or deliver a timely continuation request as
set forth in Section 3.1(c), or if any Default or Event of Default exists and the
Administrative Agent so notifies the Applicable Borrower, the applicable Borrowing shall be
continued in such Alternative Currency with an Interest Period of one month’s duration commencing
on the last day of the expiring Interest Period or as a Canadian Prime Loan in the case of a CDOR
Loan.



               (f) Alternative Currency Lenders with Loans outstanding in any Alternative Currency may, by
written notice given to the Administrative Agent not later than 11:00 a.m., Houston Time, on any
Business Day, require Lenders not having an Alternative Currency Commitment with respect to such
currency (each, an “Other Lender”) to acquire



44









 







participations on such Business Day in all or
a portion of the Alternative Currency Loans denominated in such currency then outstanding. Such
notice shall specify the aggregate amount of such Alternative Currency Loans in which such Other
Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give
written notice thereof to each such Other Lender, specifying in such notice the percentage of such
Alternative Currency Loan or Loans to be acquired by such Other Lender. Each such Other Lender
irrevocably agrees, upon receipt of notice as provided above, to pay to the Administrative Agent
for the account of the
applicable Alternative Currency Lenders such Other Lender’s Pro Rata Percentage of the US
Dollar Equivalent of such Alternative Currency Loan or Loans; provided that no Lender shall
be required to make payments under this sentence to the extent that doing so would cause the Credit
Exposure of such Lender to exceed such Lender’s Pro Rata Percentage of the Total Commitment; and
provided further, that no Alternative Currency Lender will be required to make the payments
under this sentence to the extent it already holds Alternative Currency Loans and LC Exposure in
the affected currency in an aggregate amount equal to or in excess of its Alternative Currency
Commitment with respect to such currency. Each such Other Lender acknowledges and agrees that its
obligation to acquire participations in Alternative Currency Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each such Other Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds in the same manner provided in Section 2.5 with respect to
Loans made by such Lender (and Section 2.5 shall apply, mutatis mutandis, to the payment
obligations of such Other Lenders), and the Administrative Agent shall promptly pay to each
Alternative Currency Lender with Alternative Currency Loans in the affected currency such portions
of the amount so received by it from the Other Lenders so that after giving effect thereto such
Lenders (including such Alternative Currency Lenders) will hold direct interests in such
Alternative Currency Loans in their respective Pro Rata Percentages. The Administrative Agent shall
notify the Borrower of any participations in any Alternative Currency Loans acquired pursuant to
this paragraph. If an Alternative Currency Lender accepts an assignment pursuant to Section
13.9(b) of one or more Alternative Currency Loans of any Class or currency, the Applicable
Participation Percentages of the Alternative Currency Lenders with respect to such Loans will be
adjusted, as applicable, immediately upon such assignment taking effect.



               (g) If any amount required to be paid by any Other Lender to an Alternative Currency Lender of
the applicable Class and currency pursuant to this Section 2.4 is not made available to
such Alternative Currency Lender when due, such Other Lender shall pay to such Alternative Currency
Lender, on demand, such amount with interest thereon at a rate equal to the greater of the daily
average Federal Funds Effective Rate and a rate determined by the Applicable Agent in accordance
with banking industry rules on interbank compensation for such Class for the period until such
Other Lender makes such amount immediately available to such Alternative Currency Lender. If and to
the extent any Other Lender shall not have made such amount available to such Alternative Currency
Lender within three (3) Business Days of such due date, such Alternative Currency Lender shall also
be entitled to recover from such Other Lender such amount with interest thereon at the rate per
annum generally applicable to loans made by such Alternative Currency Lender to loans of such Class
made by it to other borrowers in the same currency as such Alternative Currency, on demand. A
certificate of the



45









 







Alternative Currency Lender submitted to any Other Lender (through the
Administrative Agent) with respect to any amounts owing under this Section 2.4 shall be
conclusive in the absence of manifest error.



               (h) The amount of principal and interest paid on the Alternative Currency Loans prior to
receipt of the proceeds of a sale of participations therein shall be shared by the Alternative
Currency Lenders of each Class and currency pro rata based on the amount of
the Alternative Currency Commitment of such Class and currency of each (or if the Alternative
Currency Commitments shall have terminated, based on the Alternative Currency Loans of the
applicable Class and currency held by each). Whenever, at any time after the applicable Alternative
Currency Lender has received from any Other Lender the full amount owing by such Other Lender
pursuant to and in accordance with this Section 2.4 in respect of any Alternative Currency
Loan, the Administrative Agent or such Alternative Currency Lender receives any payment related to
such Alternative Currency Loan (whether directly from any Borrower or otherwise, including proceeds
of Collateral applied thereto by such Alternative Currency Lender or the Administrative Agent, on
behalf of such Alternative Currency Lender), or any payment of interest on account thereof, the
Administrative Agent or such Alternative Currency Lender will distribute to each such Other Lender
that shall have made its payments pursuant to this paragraph and to the Alternative Currency
Lenders its pro rata share thereof (and hereby directs the Administrative Agent to remit such pro
rata share to such Lender out of any such payment received by the Administrative Agent for the
account of such Alternative Currency Lender).



               (i) If any payment received by an Alternative Currency Lender pursuant to this Section
2.4 with respect to any Alternative Currency Loan made by it shall be required to be returned
by such Alternative Currency Lender, each Other Lender with respect to such Loan shall pay to such
Alternative Currency Lender its Pro Rata Percentage thereof.



               (j) All outstanding Alternative Currency Loans shall be due and payable, to the extent not
previously paid in accordance with the terms hereof, on the Maturity Date.



               (k) The initial Alternative Currency Commitments for each Class of Alternative Currency Loans
are designated for each Alternative Currency on Schedule 2.1. Each Lender that is not
designated an Alternative Currency Lender in Schedule 2.1 with respect to any Class or
currency on the Closing Date shall be or become an Alternative Currency Lender with respect to such
Class and currency on the initial day to occur after the Closing Date on which its lending of Loans
of such Class is not illegal, impossible or impracticable and does not result in costs or expenses
for which such Lender would not be indemnified by the Applicable Borrower or the Borrower pursuant
hereto, and on such day, it shall so promptly notify the Borrower (through the Administrative
Agent). Any Alternative Currency Lender may comply with its obligations as such by causing, as its
agent, an Applicable Lending Installation to perform such obligations as contemplated by
Section 2.2(c), and the terms of this Agreement shall be applicable to such Applicable
Lending Installation as set forth in Section 2.2(c).



               (l) In the event any Lender acting as an Alternative Currency Lender with respect to Loans
denominated in any currency (i) ceases for any reason to qualify to be an Alternative Currency
Lender with respect to such currency and notifies the Administrative Agent



46









 







to such effect, or (ii)
makes an assignment pursuant to Section 13.9(b) of all or part of its Alternative Currency
Commitment with respect to such currency to a Lender that is not an Alternative Currency Lender
with respect to such currency or (iii) determines in good faith and notifies the Administrative
Agent that, pursuant to Article III or Section 2.7(a)(ii), as applicable, lending
to the Applicable Borrower Loans in such currency would be illegal, impossible or impractical for
such Lender or would result in costs or expenses for which such Lender would not be indemnified by
the Applicable Borrower pursuant to this Agreement, (A) any applicable
assignee shall not be an Alternative Currency Lender with respect to the affected currency,
(B) the other Alternative Currency Lenders with respect to the affected currency may, in their sole
discretion, accept an assignment of such Alternative Currency Lender’s Alternative Currency Loans
in such currency, or (C) if such Alternative Currency Lenders decline to do so, upon receipt of
notice to such effect from the Administrative Agent, the Applicable Borrower shall cause all
Alternative Currency Loans in the affected currency by such Alternative Currency Lender to be
repaid in full within five (5) Business Days after receipt of such notice (it being understood that
following or contemporaneously with such repayment, the Applicable Borrower shall, subject to the
other terms and conditions of this Agreement, be entitled to reborrow such Alternative Currency
Loans from the remaining Alternative Currency Lenders with respect to the same currency).



          2.5. Funding of Borrowings.




               (a) Each Lender shall, before 12:00 noon, Local Time, on the Borrowing Date of any Borrowing,
make available to the Applicable Agent by wire transfer of immediately available funds to the
account of the Applicable Agent most recently designated by it for such purpose by notice to the
Lenders, its Pro Rata Percentage of such Borrowing, if in US Dollars, or its Applicable
Participation Percentage, if in an Alternative Currency, as requested by the Applicable Borrower in
accordance with this Agreement; provided that Alternative Currency Loans shall be made as
provided in Section 2.4 and Swingline Loans shall be made as provided in Section
2.6. After the Applicable Agent’s receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article VIII, on such Borrowing Date the Applicable Agent shall
make such Borrowing available to the Applicable Borrower by promptly crediting the amounts so
received, in like funds, to the account of the Applicable Borrower designated by the Applicable
Borrower in the applicable Borrowing Request and reasonably acceptable to the Applicable Agent;
provided that Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.7(d) shall be remitted by the Applicable Agent to the applicable
Issuing Bank. Any deposit to the Applicable Borrower’s designated account by the Applicable Agent
pursuant to a request (whether written or oral) believed in good faith by such Applicable Agent to
be an authorized request by such Borrower for a Loan hereunder shall be deemed to be a Loan
hereunder for all purposes with the same effect as if such Borrower had in fact requested such
Applicable Agent to make such Loan.



               (b) Unless the Applicable Agent shall have received notice from a Lender (which must be
received, except in the case of CB Floating Rate Loans, at least one Business Day prior to the date
of any Borrowing) that such Lender will not make available to the Applicable Agent such Lender’s
Pro Rata Percentage or Applicable Participation Percentage (as the case may be) of such Borrowing
as and when required hereunder, the Applicable Agent may assume that such Lender has made such
portion available to the Applicable Agent on the date of



47









 







such Borrowing in accordance with
Section 2.5(a), and the Applicable Agent may (but shall not be so required), in reliance
upon such assumption, make available to the Applicable Borrower on such date a corresponding
amount. The Applicable Agent shall give notice to the Applicable Borrower of any notice such
Applicable Agent receives under this Section 2.5(b), provided that such Applicable
Agent shall not be liable for the failure to give such notice. If and to the extent any Lender
shall not have made its full amount of the applicable Borrowing available to the Applicable Agent
in immediately available funds and such Applicable Agent in such
circumstances has made available to the Applicable Borrower such amount, such Lender and the
Applicable Borrower severally agree to pay (without duplication) to the Applicable Agent on the
Business Day following the applicable Borrowing Date such amount, together with interest thereon
for each day from and including the date such amount is made available to such Applicable Borrower
but excluding the date of repayment to such Applicable Agent, at (i) in the case of such Lender,
(A) if denominated in US Dollars, the greater of the Federal Funds Effective Rate and the rate
determined by the Applicable Agent in accordance with banking industry rules on interbank
compensation and (B) if denominated in an Alternative Currency, a rate determined by the Applicable
Agent in accordance with banking industry rules on interbank compensation to be the cost to it of
funding such amount or (ii) in the case of the Applicable Borrower, (A) if denominated in US
Dollars, the interest rate applicable to CB Floating Rate Loans plus the Applicable Margin and (B)
if denominated in an Alternative Currency, the interest rate applicable to the subject Loan. If
such Lender pays such amount to the Applicable Agent, such amount shall constitute such Lender’s
Loan included in such Borrowing. A notice of the Applicable Agent submitted to any Lender with
respect to amounts owing under this subsection (b) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Applicable Agent shall constitute
such Lender’s Loan on the applicable Borrowing Date for all purposes of this Agreement.



          2.6. Swingline Loans.




               (a) Subject to the terms and conditions set forth herein, the Swingline Bank agrees to make
Swingline Loans to the Borrower from time to time during the Availability Period in an aggregate
principal amount at any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding $5,000,000 or (ii) the Total Credit Exposure exceeding the
Total Commitment; provided that the Swingline Bank shall not be required to make a
Swingline Loan to refinance an outstanding Loan. Each Swingline Loan shall be made in US Dollars
and in an amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
bear interest at a rate per annum equal to the CB Floating Rate plus the Applicable Margin. Within
the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may
borrow, repay and reborrow Swingline Loans.



               (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, Houston Time, on the day
of the proposed Swingline Loan; if such telephonic notice is received later than 12:00 noon,
Houston Time, the request shall be deemed to be a request for a Swingline Loan to be made on the
next Business Day. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative
Agent will promptly advise the Swingline Bank of any such notice received from the Borrower. The
Swingline Bank shall make each Swingline Loan



48









 







available to the Borrower by means of a credit to the
general deposit account of the Borrower with the Swingline Bank (or, in the case of a Swingline
Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.7(d),
by remittance to the applicable Issuing Bank) by 2:00 p.m., Houston Time, on the requested date of
such Swingline Loan. The Borrower shall repay the principal amount of each Swingline Loan (together
with all accrued and unpaid interest) no later than 2:00 p.m., Houston Time, on the date that is
the earliest of (a) the first date after such Swingline Loan is made that is the fifteenth (15th)
or last day of a calendar month and
is at least three Business Days after such Swingline Loan is made and (b) the Maturity Date;
provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all
Swingline Loans then outstanding.



               (c) The Swingline Bank may, at its option, by written notice to the Administrative Agent not
later than 10:00 a.m., Houston Time, on any Business Day, before or after the maturity of the
Swingline Loan (regardless of whether a Default or an Event of Default has, or has not, occurred
and is continuing) require the Lenders to acquire, without recourse or warranty, participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such notice from the
Swingline Bank shall specify the aggregate principal amount of Swingline Loans in which Lenders
will be required to participate. Promptly upon receipt of such notice from the Swingline Bank, the
Administrative Agent will give notice thereof to each Lender, specifying in such notice such
Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of such notice from the Administrative Agent properly
delivered as provided above, to pay to the Administrative Agent, for the account of the Swingline
Bank, such Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Lender acknowledges
and agrees that, subject to Section 2.6(e), upon receipt of such notice properly delivered,
its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute,
unconditional and irrevocable shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or an Event of Default or reduction or termination of the
Commitments, shall be made without any offset, abatement, withholding or reduction whatsoever, may
not be terminated, suspended or delayed for any reason whatsoever, shall not be subject to
qualification or exception and shall be made in accordance with the terms of this Agreement. Each
Lender shall comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.5(a) with respect to Loans
made by such Lender (and Sections 2.5(a) and 2.5(b) shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Bank the amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter (i) payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Bank and (ii) the Lenders’ respective interests in
such Swingline Loans, and the remaining interest of the Swingline Bank in such Swingline Loans,
shall in all respects be treated as Revolving Loans under this Agreement, except that Swingline
Loans shall be due and payable by the Borrower on the dates referred to in Section 2.6(b).
Any amounts received by the Swingline Bank from the Borrower (or other Person on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Bank of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Bank, as



49









 







their interests may appear; provided that any such payment so remitted shall be
repaid to the Swingline Bank or to the Administrative Agent, as applicable, if and to the extent
such payment is required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.



               (d) If any Lender does not pay any amount that it is required to pay pursuant to this
Section 2.6 and to the extent not otherwise provided for in Section 4.7(c) or
(d), as applicable, promptly upon the Swingline Bank’s demand therefor, (a) the Swingline
Bank shall be entitled to recover such amount on demand from such Lender, together with interest
thereon, at the Federal Funds Effective Rate for the first three Business Days, and thereafter at
the CB Floating Rate, for each day from the date of such demand, if made prior to 2:00 p.m.,
Houston Time, on any Business Day, or, if made at any later time, from the next Business Day
following the date of such demand, until the date such amount is paid in full to the Swingline Bank
by such Lender and (b) the Swingline Bank shall be entitled to all interest payable by the Borrower
to such Lender on such amount until the date on which such amount is received by the Swingline Bank
from such Lender. Moreover, any Lender that shall fail to make available the required amount shall
not be entitled to vote on or consent to or approve any matter under this Agreement and the other
Loan Documents until such amount with interest is paid in full to the Swingline Bank by such
Lender. Without limiting any obligations of any Lender pursuant to this Section 2.6(d), but
subject to Section 4.7(c), if any Lender does not pay such corresponding amount promptly
upon the Swingline Bank’s demand therefor, the Swingline Bank shall notify the Borrower and the
Borrower shall promptly repay such corresponding amount to the Swingline Bank together with accrued
interest thereon at the applicable rate on such Swingline Loans.



               (e) No Lender shall be obligated to purchase a participation in any Swingline Loan pursuant to
Section 2.6(c), if such Lender proves that (a) any one or more of the applicable conditions
specified in Section 8.3 was not satisfied at the time such Swingline Loan was made (unless
such condition was waived in accordance with the terms of this Agreement) and (b) such Lender had
notified the Swingline Bank in a writing received by the Swingline Bank at least one Business Day
prior to the time that it made such Swingline Loan that the Swingline Bank was not authorized to
make such Swingline Loan because any such condition was not satisfied and stating with specificity
the reason therefor.



          2.7. Letters of Credit.




               (a) General. Subject to and upon the terms and conditions herein set forth, including,
without limitation, the applicable terms and conditions set forth in Article VIII, each
Issuing Bank agrees that it will, at any time and from time to time during the Availability Period
following its receipt of a Letter of Credit Request, issue for the account of any Borrower, in the
name of such Borrower or any Restricted Subsidiary, one or more irrevocable standby or commercial
letters of credit, bank guarantees, or, as reasonably agreed to by the applicable Issuing Bank,
other trade instruments, in each case, denominated in (i) to the extent requested by the Borrower,
US Dollars or an Alternative Currency, (ii) to the extent requested by the Canadian Borrower,
Canadian Dollars, and (iii) to the extent requested by the UK Borrower,



50









 







Euro or Sterling (all such
letters of credit collectively, the “Letters of Credit”); provided that no Issuing
Bank shall issue, amend, renew or extend any Letter of Credit if:




          (i) at the time of such issuance, amendment, renewal or extension, (A) any
order, judgment or decree of any Governmental Authority or arbitrator shall purport
by its terms to enjoin or restrain such Issuing Bank from issuing, amending,
renewing or extending such Letter of Credit or (B) any
requirement of Law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank (x) shall prohibit, or request or require that
such Issuing Bank refrain from, the issuance, amendment, renewal or extension of
letters of credit generally or such Letter of Credit in particular, (y) shall impose
upon such Issuing Bank with respect to such Letter of Credit any restriction,
reserve or capital requirement not in effect on the Closing Date, or (z) shall
impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and, in the case of either of the preceding
clause (y) or (z), which such Issuing Bank in good faith deems
material to it and for which the Applicable Borrower has not expressly and
specifically agreed with such Issuing Bank in writing to compensate such Issuing
Bank; or




          (ii) immediately after giving effect to such issuance, amendment, renewal or
extension, the US Dollar Equivalent of (A) the Credit Exposure of such Issuing Bank
would exceed such Issuing Bank’s Commitment, (B) the Total Credit Exposure would
exceed the Total Commitment, (C) the total LC Exposure would exceed $40,000,000, (D)
the aggregate principal amount of all outstanding Revolving Loans and LC Exposure
denominated in Alternative Currencies would exceed the Alternative Currency
Sublimit; (E) the aggregate principal amount of all outstanding Revolving Loans and
LC Exposure (in each case, denominated in the applicable Alternative Currency) shall
exceed the aggregate of the applicable Alternative Currency Commitments; (F) the
aggregate principal amount of all such Issuing Bank’s outstanding Loans and LC
Exposure in such Alternative Currency exceeding such Issuing Bank’s Alternative
Currency Commitment with respect to that Alternative Currency; or (G) the aggregate
principal amount of all outstanding Loans and LC Exposure (in each case, denominated
in the applicable Alternative Currency) would exceed the aggregate Alternative
Currency Commitments with respect to that Alternative Currency; or




          (iii) the expiry date of such Letter of Credit is a date that is later than the
earlier of (A) twelve (12) months from the issuance date (or in the case of any
renewal or extension, twelve (12) months after such renewal or extension) or (B)
five (5) Business Days prior to the scheduled Maturity Date; provided that
any Letter of Credit with a one-year tenor may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date that is
five (5) Business Days prior to the scheduled Maturity Date); or



51









 






          (iv) the conditions set forth in Section 8.3 are not fulfilled to the
satisfaction of such Issuing Bank as of the date of the proposed issuance of such
Letter of Credit.



          Notwithstanding anything in this Section 2.7 to the contrary, and to the extent not
otherwise provided for in Section 4.7(c) or (d), as applicable, no Issuing Bank
shall be under any obligation to issue, renew, amend or extend a Letter of Credit if there is a
Defaulting Lender, unless such Issuing Bank has entered into arrangements reasonably satisfactory
to such Issuing
Bank with the Applicable Borrower or the Defaulting Lender to eliminate such Issuing Bank’s
risk with respect to such Defaulting Lender.




          No Letter of Credit may be issued, or remain outstanding, for the account of an Unrestricted
Subsidiary.




               (b) Letter of Credit Requests.




          (i) Whenever a Borrower desires that a Letter of Credit be issued or that an
existing Letter of Credit shall be amended, renewed or extended, it shall deliver to
the applicable Issuing Bank and the Applicable Agent its prior written request
therefor not later than 12:00 noon, Local Time, at the location of the Applicable
Agent, (i) in the case of a Letter of Credit to be issued or amended that is or is
to be in US Dollars, not later than the second Business Day prior to the requested
issuance or amendment date, (ii) in the case of a Letter of Credit to be issued or
amended that is or is to be in Canadian Dollars, not later than the third Business
Day prior to the requested issuance or amendment date, (iii) in the case of a Letter
of Credit to be issued or amended that is or is to be in Euro or Sterling, not later
than the third Business Day prior to the requested issuance or amendment date, and
(iv) in the case of the extension of the existing expiry date of any Letter of
Credit, not later than the third Business Day prior to the date on which such
Issuing Bank must notify the beneficiary thereof that such Issuing Bank does not
intend to extend such existing expiry date. Each such request for an issuance,
renewal, extension or amendment increasing the amount thereof shall be in the form
of Exhibit F (a “Letter of Credit Request”) and, in the case of the
issuance of any Letter of Credit, shall be accompanied by an Application therefor,
completed to the satisfaction of the applicable Issuing Bank, and such other
certificates, documents and other papers and information as the applicable Issuing
Bank or any Lender (through the Administrative Agent) may reasonably request. Each
Letter of Credit shall expire no later than the date specified in Section
2.7(a)(iii), shall not be in an amount greater than is permitted under
Section 2.7(a) and shall be in such form as may be approved from time to
time by the applicable Issuing Bank and the Applicable Borrower. Promptly upon its
receipt of a Letter of Credit Request, and, if applicable, the related Application,
the Applicable Agent shall so notify the Lenders and the Administrative Agent. It is
agreed that an Application may be delivered by electronic transfer.




          (ii) The making of each Letter of Credit Request shall be deemed to be a
representation and warranty by the Applicable Borrower that such



52









 







Letter of Credit
may be issued in accordance with, and will not violate the requirements of, this
Agreement. Unless an Issuing Bank has received notice from an Agent or any Lender
(with a copy thereof to be simultaneously sent to the Borrower), before it issues or
amends the respective Letter of Credit or renews or extends the existing expiry date
of a Letter of Credit, that one or more of the applicable conditions specified in
Section 8.3 are not then satisfied, or that the issuance, renewal, extension
or amendment of such Letter of Credit would violate this Agreement, such Issuing
Bank may issue the requested Letter of Credit for
the account of the Applicable Borrower in accordance with this Agreement and
such Issuing Bank’s usual and customary practices; provided that no Issuing
Bank shall be required to issue any Letter of Credit earlier than two (2) Business
Days after its receipt of the Letter of Credit Request and the related Application
therefor and all other certificates, documents and other papers and information
relating thereto pursuant to the immediately preceding clause (i). Upon its
issuance of any Letter of Credit or the extension of the existing expiry date of any
Letter of Credit, as the case may be, the applicable Issuing Bank shall promptly
notify the Applicable Borrower and the Administrative Agent of such issuance or
extension, which notice shall be accompanied by a copy of the Letter of Credit
actually issued or a copy of any amendment extending the existing expiry date of any
Letter of Credit, as the case may be. Promptly upon its receipt of such documents,
the Applicable Agent shall notify each Lender and the Administrative Agent of the
issuance of such Letter of Credit or the extension of such expiry date, as the case
may be, and shall deliver copies of such documents to each applicable Lender and the
Administrative Agent.



               (c) Letter of Credit Participations.




          (i) By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part of
the applicable Issuing Bank or any Lender, such Issuing Bank hereby grants to each
Lender, and each Lender hereby acquires from such Issuing Bank, without recourse or
warranty, an undivided interest and participation, to the extent of such Lender’s
Pro Rata Percentage, in each such Letter of Credit (including extensions of the
expiry date thereof), each substitute letter of credit, each drawing made thereunder
and the obligations of the Applicable Borrower under this Agreement and the other
Loan Documents with respect thereto, and any security therefor or guaranty
pertaining thereto. Each Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the applicable Issuing Bank, such
Lender’s Pro Rata Percentage of each LC Disbursement made by such Issuing Bank and
not reimbursed by the Applicable Borrower on the date due or of any reimbursement
payment in respect of an LC Disbursement required to be refunded to a Borrower for
any reason. Such payments by the Lenders shall be made in the currency in which such
Letter of Credit was issued. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit, the occurrence and continuance of a



53









 







Default, any reduction or termination of the Commitments or any fluctuation in
currency values, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.




          (ii) In determining whether to pay under any Letter of Credit, an Issuing Bank
shall have no obligation other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that they
appear to comply on their face with the requirements
of such Letter of Credit. Any action taken or omitted to be taken by an Issuing
Bank under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct shall not create for such Issuing
Bank any resulting liability. It is the intent of the parties hereto that no Issuing
Bank shall have any liability for its ordinary sole or contributing negligence.




          (iii) In the event that an Issuing Bank makes any payment under any Letter of
Credit and the Applicable Borrower shall not have reimbursed such amount in full to
the Issuing Bank pursuant to Section 2.7(d)(i) or (ii), the
Administrative Agent shall promptly notify each applicable Lender of such failure,
and each such Lender shall promptly and unconditionally pay to the Administrative
Agent for the account of the applicable Issuing Bank the amount of such Lender’s Pro
Rata Percentage of such unreimbursed payment in same day funds and in the same
currency. If, prior to 11:30 a.m., Local Time, on any Business Day, the
Administrative Agent so notifies any Lender required to fund a payment under a
Letter of Credit, such Lender shall make available to the Administrative Agent for
the account of the applicable Issuing Bank such Lender’s Pro Rata Percentage of the
amount of such payment on such Business Day in same day funds and in the same
currency. If and to the extent such Lender shall not have so made its Pro Rata
Percentage of the amount of such payment available to the Administrative Agent for
the account of the applicable Issuing Bank, and to the extent not otherwise provided
for in Section 4.7(c) or (d), as applicable, such Lender agrees to
pay to the Administrative Agent for the account of such Issuing Bank, forthwith on
demand such amount, together with interest thereon, for each day from such date
until the date such amount is paid to the Administrative Agent for the account of
such Issuing Bank (i) in the case of LC Disbursements made in the US Dollars, at the
Federal Funds Effective Rate and (ii) if such LC Disbursement is made in an
Alternative Currency, at a rate equal to the rate reasonably determined by the
applicable Issuing Bank to be the cost to such Issuing Bank of funding such LC
Disbursement plus the Applicable Margin for Eurocurrency Loans at such time. The
failure of any Lender to make available to the Administrative Agent for the account
of the applicable Issuing Bank its Pro Rata Percentage of any payment under any
Letter of Credit shall not relieve any other Lender of its obligation hereunder to
make available to the Administrative Agent for the account of such Issuing Bank its
Pro Rata Percentage of any payment under any Letter of Credit on the date required,
as specified above, but no Lender shall be responsible for the failure of any other
Lender to make available to the Administrative Agent for the account of such Issuing
Bank such other Lender’s Pro Rata Percentage of any such payment.



54









 






          (iv) Whenever an Issuing Bank receives a payment of a reimbursement obligation
as to which the Applicable Agent has received for the account of such Issuing Bank
any payments from the Lenders pursuant to clause (iii) above, such Issuing
Bank shall pay to the Applicable Agent, and such Applicable Agent shall promptly pay
to each Lender which has paid its Pro Rata Percentage thereof, in same day funds and
in the same funds as those received by
the Applicable Agent, an amount equal to such Lender’s Pro Rata Percentage
thereof.




          (v) The obligations of the Lenders to make payments to the Applicable Agent for
the account of an Issuing Bank with respect to Letters of Credit shall be absolute
and not subject to any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all circumstances,
including any of the following circumstances:




               (A) any lack of validity or enforceability of any Letter of Credit, this
Agreement or any of the other Loan Documents;




               (B) the existence of any claim, setoff, defense or other right which any
Borrower or any other Person may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), any Agent, any Issuing Bank, any Lender, or any
other Person, whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transaction between the Applicable Borrower or any other Person and the
beneficiary named in any such Letter of Credit);




               (C) any draft, certificate or any other document presented under the 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;




               (D) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents;




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




               (F) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, any Lender (other than the gross negligence or willful
misconduct of such Issuing Bank).




          (vi) The Lenders agree to indemnify each Issuing Bank (to the extent not
reimbursed by the Applicable Borrower), ratably according to their respective Pro
Rata Percentages, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on,



55









 







incurred by, or asserted
against such Issuing Bank in any way relating to or arising out of this Agreement or
any Letter of Credit issued by it or any action taken or omitted by such Issuing
Bank under this Agreement or any Letter of Credit issued by it; provided
that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from an Issuing Bank’s gross negligence or
willful misconduct.



               (d) Agreement to Repay Letter of Credit Drawings.




          (i) Upon the receipt by an Issuing Bank of any drawing from a beneficiary under
a Letter of Credit, such Issuing Bank promptly will provide the Applicable Borrower
and the Administrative Agent with telecopy notice thereof. The Applicable Borrower
shall reimburse the applicable Issuing Bank by making payment to the Applicable
Agent in the same currency as such drawing and in immediately available funds for
any LC Disbursement at the account of the Applicable Agent identified to the
Applicable Borrower, immediately after payment, and in any event (i) if the
applicable Issuing Bank has notified the Applicable Borrower of the LC Disbursement
by 10:00 a.m., Local Time, on the date of such payment, then by 12:00 noon, Local
Time, on the date of such payment or (ii) if the applicable Issuing Bank has
notified the Applicable Borrower of the LC Disbursement after 10:00 a.m., Local
Time, on the date of such payment, then by 12:00 noon, Local Time, on the Business
Day following such payment, in each case without setoff or counterclaim, with
interest on the amount so paid by the Issuing Bank, to the extent not reimbursed
prior to 12:00 noon, Local Time, on the date of such payment, from and including the
date paid to but excluding the date reimbursement is made as provided above, at a
rate per annum equal to the lesser of (x) (A) if reimbursement is made prior to
12:00 noon, Local Time, on the Business Day following the date of such payment, in
the case of a Letter of Credit denominated in US Dollars, the CB Floating Rate; in
the case of a Letter of Credit denominated in Canadian Dollars, the Canadian Prime
Rate; or, in the case of a Letter of Credit denominated in Euro or Sterling, a rate
equal to the rate reasonably determined by the applicable Issuing Bank to be the
cost to such Issuing Bank of funding such LC Disbursement or (B) if reimbursement is
made at or after 12:00 noon, Local Time, on the Business Day following the date of
such payment, 2% above the CB Floating Rate, the Canadian Prime Rate or such cost of
funds, as the case may be, plus, in each case, the Applicable Margin, and (y) the
Highest Lawful Rate, such interest to be payable on demand.




          (ii) Prior to the Maturity Date, unless otherwise paid by the Borrower, such LC
Disbursement may, subject to satisfaction of the conditions precedent set forth in
Section 2.3 and Section 8.3 (or, if the Majority Lenders so desire,
shall automatically and without need for satisfaction of any such conditions
precedent), be paid with the proceeds of Revolving Loans or Alternative Currency
Loans, according to the currency in which such Letter of Credit was denominated, to
be disbursed on the date of such LC Disbursement in an amount equal to the LC
Disbursement.



56









 






          (iii) The Applicable Borrower’s obligations under this Section 2.7(d)
to reimburse each Issuing Bank with respect to LC Disbursements (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances (except as provided below with respect to the
gross negligence or willful misconduct of the applicable Issuing Bank) and
irrespective of any setoff, counterclaim or defense to payment which the Applicable
Borrower may have or have had against any Lender (including such Issuing Bank in its
capacity as the issuer of a Letter of Credit or any Lender as a participant
therein), including any defense based upon the failure of any drawing under a Letter
of Credit to conform to the terms of the Letter of Credit (other than a defense
based upon the gross negligence or willful misconduct of the applicable Issuing Bank
in determining whether such drawing conforms to the terms of the Letter of Credit)
or any non-application or misapplication by the beneficiary of the proceeds of such
drawing, including any of the following circumstances:




               (A) any lack of validity or enforceability of any Letter of Credit, this
Agreement or any of the other Loan Documents;




               (B) the existence of any claim, setoff, defense or other right which any
Borrower or any other Person may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), any Agent, any Issuing Bank, any Lender, or any
other Person, whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transaction between the Applicable Borrower or any other Person and the
beneficiary named in any such Letter of Credit);




               (C) any draft, certificate or any other document presented under the 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;




               (D) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents;




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




               (F) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, any Borrower (other than the gross negligence or willful
misconduct of the applicable Issuing Bank).




          (iv) Each Borrower also agrees with the Issuing Banks, the Agents and the
Lenders that, in the absence of gross negligence or willful misconduct of any
Issuing Bank, such Issuing Bank shall not be responsible for, and the Applicable
Borrower’s reimbursement obligations under this



57









 







Section 2.7(d) shall not be
affected by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged or any dispute between or among any Borrower or any other party
and the beneficiary of any Letter of Credit or any
other party to which such Letter of Credit may be transferred or any claims
whatsoever of the Applicable Borrower or any other party against any beneficiary of
such Letter of Credit or any such transferee. Neither any Agent, any Lender nor any
Issuing Bank shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder, or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing Bank;
provided that the foregoing shall not be construed to excuse any Issuing
Bank from liability to the Applicable Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby waived
by each Borrower to the extent permitted by applicable law) suffered by the
Applicable Borrower that are caused by such Issuing Bank’s failure to exercise care
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of the applicable
Issuing Bank (as finally determined by a court of competent jurisdiction), such
Issuing Bank shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their face
to be in substantial compliance with the terms of a Letter of Credit, an Issuing
Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit. It is the intent of the parties hereto that neither any Agent, any
Lender nor any Issuing Bank shall have any liability under this Section 2.7
for the ordinary negligence of such Person.




          (v) Unless otherwise agreed by the Administrative Agent, the applicable Issuing
Bank shall report in writing to the Administrative Agent (i) on or prior to each
Business Day on which such Issuing Bank issues, amends, renews or extends any Letter
of Credit, the Letter of Credit with respect to which such action was taken, the
date of such issuance, amendment, renewal or extension, the Applicable Borrower for
whose account the Letter of Credit was issued, and the currency and aggregate face
amount of the Letters of Credit issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or extension
(and whether the amount thereof shall have changed), it being understood that (A)
with respect to any such issuance, renewal, extension or amendment that results in
an increase in the amount of any Letter of



58









 







Credit, the Issuing Bank shall, upon its
receipt of the Applicable Borrower’s request therefor, request written confirmation
from the Administrative Agent that such issuance, renewal, extension or amendment
does not result in non-compliance with this Agreement and (B) the Administrative
Agent shall promptly and in any event not later than 12:00 noon, Local Time, at the
location of the
Applicable Agent, on the proposed effective date of such issuance, amendment,
renewal or extension, provide such confirmation or indication of non-compliance;
(ii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the
date, currency and amount of such LC Disbursement, (iii) on any Business Day on
which the Applicable Borrower fails to reimburse an LC Disbursement required to be
reimbursed to such Issuing Bank on such day, the date of the failure and the
currency and amount of such LC Disbursement and (iv) on any other Business Day, such
other information as the Administrative Agent (or any Lender, through the
Administrative Agent) shall reasonably request as to Letters of Credit.




          (vi) If the maturity of the Loans has been accelerated pursuant to Article
XI, all amounts (without duplication) (i) that any Borrower is at the time or
becomes thereafter required to reimburse or otherwise pay to the Applicable Agent or
any Issuing Bank in respect of LC Disbursements made under any Letter of Credit
denominated in an Alternative Currency (other than amounts in respect of which such
Borrower has deposited cash collateral, if such cash collateral was deposited in the
applicable currency), (ii) that the Lenders are at the time or become thereafter
required to pay to the Applicable Agent (and the Applicable Agent is at the time or
becomes thereafter required to distribute to an Issuing Bank) pursuant to
Section 2.7(c) in respect of unreimbursed LC Disbursements made pursuant to
any Letter of Credit denominated in an Alternative Currency and (iii) of each
Lender’s participation in any Letter of Credit denominated in an Alternative
Currency under which an LC Disbursement has been made shall, automatically and with
no further action required, be converted into the US Dollar Equivalent calculated
using the Spot Exchange Rate on such date (or in the case of any LC Disbursement
made after such date, on the date such LC Disbursement is made) of such amounts. On
and after such conversion, all amounts accruing and owed to any Agent, the
applicable Issuing Bank or any Lender in respect of the obligations described in
this paragraph shall accrue and be payable in US Dollars at the rates otherwise
applicable hereunder.




          (vii) Unless otherwise agreed by the applicable Issuing Bank and the Applicable
Borrower when a Letter of Credit is issued, (i) the rules of the “International
Standby Practices 1998” (or such later version thereof as may be in effect at
the time of issuance) shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance, shall
apply to each commercial Letter of Credit.




          (viii) If, as of the Maturity Date, or upon the occurrence and continuance of
an Event of Default, any one or more Letters of Credit for any



59









 







reason remains
outstanding and partially or wholly undrawn or any LC Disbursement remains partially
or wholly unreimbursed, then, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Majority Lenders (or, if the maturity of the
Loans has been accelerated, Lenders with LC Exposure representing at least 51% of
the total LC Exposure) demanding
the deposit of cash collateral, the Borrower shall immediately cash
collateralize (in the currency of each such Letter of Credit or LC Disbursement) the
then-outstanding amount of LC Exposures in respect thereof in the manner provided in
Section 11.2 in an amount equal to the LC Exposure attributable to such
Letters of Credit or such LC Disbursements as of such date plus any accrued and
unpaid interest thereon. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrowers under
the Loan Documents. The Borrower hereby grants to the Administrative Agent for the
benefit of the Secured Parties a security interest in all such cash and all proceeds
of the foregoing to secure such obligations. Subject to release therefrom in
accordance with Section 11.2, such cash collateral shall remain in blocked,
interest-bearing accounts in the name of the Administrative Agent. The obligation to
deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or notice of any kind, upon
the occurrence of any Event of Default described in Section 11.1(f) or
(g).



               (e) All Letters of Credit listed on Schedule 2.7 and outstanding on the Closing Date
shall be Letters of Credit issued hereunder on such dates and shall be governed in all respects by
the terms and conditions of this Agreement (including Section 2.7(d)), without any further
action by any Borrower, any Issuing Bank or any other Person.



          2.8. Conflict between Applications and Agreement. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions of this Agreement,
the provisions of this Agreement shall control.




ARTICLE III

INTEREST RATE PROVISIONS




          3.1. Interest Rate Determination.




               (a) Except as specified in Sections 3.2, 3.3, 3.4, 3.5 and 3.7, the Loans
shall bear interest on the unpaid principal amount thereof from time to time outstanding, until
maturity, at the following rates:




          (i) (A) with respect to any Eurocurrency Borrowing denominated in US Dollars or
Sterling, the Loans comprising each Eurocurrency Borrowing shall bear interest at
the lesser of (x) the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin, and (y) the applicable Highest Lawful Rate, if
any; and (B) with respect to any Eurocurrency Borrowing denominated in Euro, the
Loans comprising each Eurocurrency Borrowing shall bear interest at the lesser of
(x) the Adjusted



60









 







EURIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin and (y) the applicable Highest Lawful Rate, if any;




          (ii) with respect to any CB Floating Rate Loan, the lesser of (y) the CB
Floating Rate plus the Applicable Margin and (z) the applicable Highest Lawful Rate;




          (iii) with respect to any CDOR Loan, the lesser of (y) the CDOR Rate for the
Interest Period in effect for such CDOR Loan plus the Applicable Margin and (z) the
applicable Highest Lawful Rate;




          (iv) with respect to any Canadian Prime Loan, the lesser of (y) the Canadian
Prime Rate plus the Applicable Margin and (z) the applicable Highest Lawful Rate;
and




          (v) with respect to any Swingline Loan, the lesser of (y) the CB Floating Rate
plus the Applicable Margin and (z) the applicable Highest Lawful Rate.


The applicable CB Floating Rate, Adjusted LIBO Rate, Adjusted EURIBO Rate, CDOR Rate and Canadian
Prime Rate shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error. Interest shall be calculated based on a year of 360 days, except
that (i) interest computed by reference to the CB Floating Rate at times when the CB Floating Rate
is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day), (ii) interest computed with reference to the Canadian Prime
Rate and the CDOR Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day and excluding the last day) and (iii) with respect to any Alternative Currency as to which a
365 or 366 day year, as the case may be, is customarily used as a basis for such calculation,
interests with respect to Loans denominated in such Alternative Currency shall be computed on such
basis. Interest in all cases shall be calculated and payable for the actual number of days elapsed
(including the first day but excluding the last day).




               (b) Provided that no Default or Event of Default then exists, any Borrower may, upon
irrevocable written notice to the applicable Administrative Agent in accordance with Section
3.1(c),




          (i) elect to convert, as of any Business Day, any CB Floating Rate Loans (or
any part thereof equal to the relevant Borrowing Minimum or an integral multiple of
the relevant Borrowing Multiple in excess thereof) into Eurocurrency Loans;




          (ii) elect to convert, as of the last day of the applicable Interest Period,
any Eurocurrency Loans expiring on such day (or any part thereof equal to the
relevant Borrowing Minimum or an integral multiple of the relevant Borrowing
Multiple in excess thereof) into CB Floating Rate Loans; or



61









 






          (iii) elect to continue (for the same or a different Interest Period), as of
the last day of the applicable Interest Period, any Eurocurrency
Loans having Interest Periods expiring on such day (or any part thereof equal
to the relevant Borrowing Minimum or an integral multiple of the relevant Borrowing
Multiple in excess thereof);




          (iv) elect to convert, as of any Business Day, any Canadian Prime Loans (or any
part thereof equal to the relevant Borrowing Minimum or an integral multiple of the
relevant Borrowing Minimum in excess thereof) into CDOR Loans;




          (v) elect to convert, as of the last day of the applicable Interest Period, any
CDOR Loans expiring on such day (or any part thereof equal to the relevant Borrowing
Minimum or an integral multiple of the relevant Borrowing Multiple in excess
thereof) into Canadian Prime Loans; or




          (vi) elect to continue (for the same or a different Interest Period), as of the
last day of the applicable Interest Period, any CDOR Loans having Interest Periods
expiring on such day (or any part thereof equal to the relevant Borrowing Minimum or
an integral multiple of the relevant Borrowing Multiple in excess thereof);


provided that, if at any time the outstanding principal amount of Eurocurrency Loans is
reduced by payment, prepayment, or conversion of part thereof to be less than the Borrowing Minimum
for Eurocurrency Loans, such Eurocurrency Loans, if in US Dollars, shall automatically convert into
CB Floating Rate Loans and if in Sterling or Euro, shall automatically convert into Loans bearing
interest at such rate as the Administrative Agent determines adequately reflects the costs of the
applicable Lenders of making or maintaining such Loans, and on and after such date the right of the
applicable Borrower to continue such Loans as, and convert such Loans into, Eurocurrency Loans
shall terminate; provided further, that if at any time the outstanding principal amount of
CDOR Loans is reduced by payment, prepayment, or conversion of part thereof to be less than the
Borrowing Minimum for CDOR Loans, such CDOR Loans shall automatically convert into Canadian Prime
Loans, and on and after such date the right of the applicable Borrower to continue such Loans as,
and convert such Loans into, CDOR Loans shall terminate. The applicable CB Floating Rate, Adjusted
LIBO Rate or Canadian Prime Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.




          The Applicable Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be
converted or continued.




          Notwithstanding any other provision of this Section, no Borrower shall be permitted to change
the currency of any Borrowing or to convert any Borrowing to a Type not permitted to be elected by
it pursuant to this Agreement.







62









 








          No Interest Period may be elected that would end later than the scheduled Maturity Date.




          No Interest Period may be elected if such election would require the Administrative Agent to
administer concurrently a combination of elective rates based on the Adjusted LIBO Rate and/or a
combination of Interest Periods that exceed an aggregate of ten (10).




               (c) To convert or continue a Loan as provided in Section 3.1(b), the Applicable
Borrower shall deliver a Notice of Rate Change/Continuation in the form of Exhibit G (a
“Notice of Rate Change/Continuation”), to the Applicable Agent not later than 11:00 a.m.,
Local Time, at least (i) three Business Days in advance of the Change/Continuation Date, if such
Loan is to be converted into or continued as a Eurocurrency Loan or CDOR Loan and is denominated in
US Dollars or Canadian Dollars, (ii) four Business Days in advance of the Change/Continuation Date,
if such Loan is denominated in an Alternative Currency other than Canadian Dollars; and (iii) one
Business Day in advance of the Change/Continuation Date, if such Loan is to be converted into a CB
Floating Rate Loan or Canadian Prime Loan, specifying:




          (i) the date on which such Loan was made;




          (ii) the interest rate then applicable to such Loan;




          (iii) with respect to any Eurocurrency Loan or CDOR Loan, the Interest Period
then applicable to such Loan;




          (iv) the amount of such Loan;




          (v) the currency in which such Loan was denominated;




          (vi) the proposed Change/Continuation Date;




          (vii) the aggregate principal amount of such Loans to be converted or
continued;




          (viii) the Type of Loans resulting from the proposed conversion or
continuation; and




          (ix) if the resulting Loans are Eurocurrency Loans or CDOR Loans, the Interest
Period to be applicable to such Eurocurrency Loans or CDOR Loans, after giving
effect to the proposed conversion or continuation, which shall be a period
contemplated by the definition of the term “Interest Period.”



               (d) If, upon the expiration of any Interest Period applicable to Eurocurrency Loans or CDOR
Loans, (i) the Applicable Borrower has failed to repay such Loans or to select a new Interest
Period to be applicable to such Loans prior to the applicable Business Day in advance of the
Expiration Date of the current Interest Period applicable thereto as provided in Section
3.1(c), or (ii) any Default or Event of Default exists and the Administrative Agent so notifies
the Borrower, the Applicable Borrower shall be deemed to have elected to



63









 







convert any such Eurocurrency Loans denominated in US Dollars into CB Floating Rate Loans or
such CDOR Loans into Canadian Prime Loans, as the case may be, effective as of the Expiration Date
of such Interest Period, and all conditions to such conversion shall be deemed to have been
satisfied (unless such Loans are denominated in Sterling or Euro, in which case such Loans shall be
continued as Eurocurrency Loans with an Interest Period of one month’s duration commencing on the
last day of such Interest Period).



               (e) The Administrative Agent will promptly notify each Lender of its receipt of a Notice of
Rate Change/Continuation, or, if no timely notice is provided by the Applicable Borrower, the
Administrative Agent will promptly notify the Applicable Borrower and each Lender of the details of
any automatic conversion. All conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans with respect to which the notice was given
held by each Lender.



               (f) During the existence of a Default or Event of Default, (i) no Borrower may elect to have
any Borrowing converted into or continued as a Eurocurrency Borrowing or a Borrowing denominated in
Canadian Dollars converted into or continued as a CDOR Borrowing, as the case may be, (ii) unless
repaid, each Eurocurrency Borrowing denominated in US Dollars shall be converted into a CB Floating
Rate Borrowing, and each CDOR Loan shall be converted into a Canadian Prime Loan, in each case at
the end of the Interest Period applicable thereto; and (iii) unless repaid, each Eurocurrency
Borrowing denominated in an Alternative Currency (other than Canadian Dollars) shall be continued
as a Eurocurrency Borrowing of the same Type with an Interest Period of one month.



               (g) Nothing herein shall authorize any Borrower to continue or change the interest rate
applicable to any Eurocurrency Loan or CDOR Loan prior to the expiration of the Interest Period
with respect thereto. No Alternative Currency Borrowing may be converted to a CB Floating Rate
Borrowing and no Borrowing denominated in one currency may be converted to another currency.



               (h) Notwithstanding anything set forth herein to the contrary (other than Section
13.10) if any principal of or interest on any Loan or any fee or other amount payable by a
Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount, from time to time outstanding, shall bear interest, after as well
as before judgment, at a rate per annum equal to (i) in the case of overdue principal on any Loan,
the lesser of (x) 2% above the interest rate otherwise applicable to such Loan and (y) the Highest
Lawful Rate, or (ii) in the case of any other amount, the lesser of (x) 2% plus the rate applicable
to CB Floating Rate Loans at such time and (y) the Highest Lawful Rate.



               (i) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination in full of the Commitments;
provided that (i) interest accrued pursuant to subsection (h) of this Section
3.1 shall be due on demand, (ii) in the event of any repayment or prepayment of any Loan,
accrued interest on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Loan or CDOR
Loan prior to the end of the current Interest Period therefor, accrued and unpaid



64









 







interest on such Loan shall be payable on the effective date of such conversion. All interest
shall be paid in the currency in which the applicable Loan is denominated.



               (j) The CB Floating Rate for each CB Floating Rate Loan shall be determined by the
Administrative Agent on the first day and on each day such CB Floating Rate Loan shall be
outstanding, or if such day is not a Business Day, on the next succeeding Business Day. The LIBO
Rate or EURIBO Rate, as the case may be, for the Interest Period for each Eurocurrency Loan shall
be determined by the Administrative Agent on the respective Quotation Date. The Canadian Prime Rate
for each Canadian Prime Loan shall be determined by the Administrative Agent on the first day and
on each day such Canadian Prime Loan shall be outstanding, or if such day is not a Business Day, on
the next succeeding Business Day. The CDOR Rate for the Interest Period for each CDOR Loan shall be
determined by the Administrative Agent on the first day of such Interest Period.



               (k) Each determination of an interest rate by the Administrative Agent shall be conclusive and
binding upon the Borrower and the Lenders in the absence of manifest error.



          3.2. Increased Cost and Reduced Return.




               (a) If any Change in Law:




          (i) shall impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or other similar requirement against assets,
deposits with or for the account of, or credit extended by, any Lender (except any
such reserve requirement (including the Mandatory Costs) included in the Adjusted
LIBO Rate or the Adjusted EURIBO Rate) or an Issuing Bank; or




          (ii) shall impose on any Lender or Issuing Bank or the London, European, or
Canadian interbank markets any other condition affecting this Agreement or the
Eurocurrency Loans made by such Lender or any Letter of Credit or participation
therein or in any Alternative Currency Loan;


and the result of any of the foregoing is to increase the cost to such Lender of making, converting
into, continuing, or maintaining any Eurocurrency Loans or CDOR Loans (or of maintaining its
obligation to make a Eurocurrency Loan or CDOR Loan or to participate in an Alternative Currency
Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or
maintaining any Letter of Credit (including maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such
Lender or Issuing Bank under this Agreement, in each case by an amount deemed material by such
Lender or Issuing Bank, as the case may be, then, upon request of such Lender or Issuing Bank, the
Applicable Borrower shall pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such
increased cost incurred or reduction suffered; provided that the Applicable Borrower will
not be responsible for paying any amounts pursuant to this Section 3.2(a) accruing for a
period greater than 180 days prior to the date that such Lender or Issuing Bank, as the case






65









 







may be, through the Administrative Agent notifies the Borrower of the circumstances giving rise to
such increased costs or reductions and of such Lender’s or Issuing Bank’s, as the case may be,
intention to claim compensation therefor; provided further that, if the circumstances
giving rise to such increased costs or reductions are retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.




               (b) If any Lender or any Issuing Bank determines that any Change in Law has or would have the
effect of reducing the rate of return on the capital of such Lender or such Issuing Bank or any
company controlling such Lender or such Issuing Bank, as the case may be, as a consequence of this
Agreement, the Commitment of such Lender or the Loans made by, or participations in Letters of
Credit or Alternative Currency Loans held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or such Issuing Bank or such company could
have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with
respect to capital adequacy), such Lender or such Issuing Bank shall notify the Borrower through
the Administrative Agent and from time to time the Applicable Borrower shall pay to such Lender or
such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company, as the case
may be, for such reduction, provided that the Applicable Borrower will not be responsible
for paying any amounts pursuant to this Section 3.2(b) accruing for a period greater than
180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the
Borrower of the circumstances giving rise to such increased costs or reductions and of such
Lender’s or such Issuing Bank’s, as the case may be, intention to claim compensation therefor;
provided further that, if the circumstances giving rise to such increased costs or
reductions are retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.



               (c) Each Lender and each Issuing Bank shall promptly notify the Borrower (through the
Administrative Agent) and the Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Lender or such Issuing Bank, as the case
may be, to compensation pursuant to this Section 3.2, and will use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder or assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if such
designation or assignment will avoid the need for, or reduce the amount of, such compensation and
will not, in the judgment of such Lender or such Issuing Bank, as the case may be, be otherwise
disadvantageous to it. The Applicable Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender or any Issuing Bank, as the case may be, in connection with any
such designation or assignment. Any Lender or any Issuing Bank, as the case may be, claiming
compensation under this Section 3.2 shall do so in good faith on a nondiscriminatory basis.
In determining such amount, such Lender or such Issuing Bank, as the case may be, may use any
reasonable averaging and attribution methods. A certificate of a Lender or an Issuing Bank, as the
case may be, setting forth in reasonable detail such amount or amounts as shall be necessary to
compensate such Lender or such Issuing Bank, as the case may be, as specified in this Section
3.2 may be delivered to the Applicable Borrower and the Administrative Agent and shall be
conclusive absent manifest error. The Applicable Borrower shall pay to the Administrative Agent for
the account of such Lender or such Issuing Bank, as the



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case may be, the amount shown as due on any such certificate within fifteen (15) days after
its receipt of the same.




               (d) Notwithstanding anything in the Loan Documents to the contrary, any Lender may, in its
sole discretion, fund Loans denominated in Sterling from a lending office located in the UK. In
such case, the Applicable Borrower shall pay to such Lender, together with and as and when interest
(calculated at the rate otherwise applicable under this Agreement) on such Loans is due and
payable, any and all Mandatory Costs (to the extent not already included in such interest rate) due
or payable by such lending office for the cost of complying with the requirements of the Bank of
England, the Financial Services Authority, or any other Governmental Authority, as the case may be,
which results from funding or maintaining such Loans from such lending office. If at any time a
Lender shall reasonably determine after a Change in Law that the Mandatory Costs (calculated as
provided in this Agreement) shall fail to represent the actual cost to such Lender or its
applicable lending office of complying with the requirements of the Bank of England, the Financial
Services Authority, or any other Governmental Authority having jurisdiction over it, as the case
may be, with respect to the funding and maintenance of advances in an Alternative Currency, in each
case by an amount deemed material by such Lender, then the Applicable Borrower shall, upon the
request of such Lender, pay to such Lender such additional amounts as will compensate such Lender
for such additional costs incurred.



               (e) (i) For so long as any Lender is required to comply with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case, any other authority
succeeding to all or any of its functions) or (b) the requirements of the European Central Bank (or
any other authority succeeding to all or any of its functions), but without duplicating amounts
included in the Statutory Reserve Rate or Mandatory Costs, in each case in respect of such
Lender’s Eurocurrency Loans or by virtue of extending credit in Sterling or Euro to a Borrower,
such Borrower shall pay, in addition to interest otherwise due on each of such Loans, additional
interest on such Loan in an amount equal to the cost to such Lender of complying with such
requirements.



          (ii) For so long as any Lender is required to comply with reserve assets, liquidity, cash
margin or other requirements of any monetary or other authority (including any such requirement
imposed by the European Central Bank or the European System of Central Banks (or other authority
succeeding to all or any of the functions of either), but without duplicating amounts included in
the Statutory Reserve Rate or the Mandatory Costs) in respect of any of such Lender’s Eurocurrency
Loans or by virtue of extending credit in Sterling or Euro to a Borrower, such Borrower shall pay,
in addition to interest on each of such Lender’s Loans subject to such requirements, additional
interest on such Loan at a rate per annum specified by such Lender to be the cost to such Lender of
complying with such requirements in relation to such Loan.




          (iii) Any additional interest owed pursuant to clause (i) or (ii) above shall
be determined in reasonable detail by the applicable Lender, which determination shall be
conclusive absent manifest error, and notified to the Applicable Borrower (with a copy to the
Administrative Agent) at least five (5) Business Days before each date on which interest is payable
for the applicable Loan, and such additional interest so notified to the Applicable






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Borrower by such Lender shall be payable to the Administrative Agent for the account of such
Lender on each date on which interest is payable for such Loan. In no event shall any amounts
determined pursuant to clause (i) or (ii) above be duplicative of any amount owed
by an Applicable Borrower hereunder.




          3.3. Limitation on Types of Loans. If on or prior to the first day of any Interest Period for
any Eurocurrency Loan or CDOR Loan:




               (a) the Administrative Agent or the Majority Lenders shall have determined (which
determination shall be conclusive) that for any reason it has become impossible or impracticable to
determine the Adjusted LIBO Rate, the Adjusted EURIBO Rate, or the CDOR Rate, as applicable, for
such Interest Period; or



               (b) the Majority Lenders determine (which determination shall be conclusive) and notify the
Administrative Agent that the Adjusted LIBO Rate, the Adjusted EURIBO Rate or the CDOR Rate, as the
case may be, for such Interest Period will not adequately and fairly reflect the cost to the
Lenders of making or maintaining such Eurocurrency Loans or CDOR Loans, as applicable, for such
Interest Period,


the Administrative Agent shall give the Borrower and the Lenders prompt notice thereof, and until
the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) the Lenders shall be under no obligation to maintain their
commitment to make, or to make, additional Eurocurrency Loans of any affected Type or CDOR Loans
for, continue Eurocurrency Loans of any affected Type or CDOR Loans for, or convert CB Floating
Rate Loans into Eurocurrency Loans of any affected Type or Canadian Prime Loans into CDOR Loans
for, such Interest Period, (ii) on the last day(s) of the then-current Interest Period(s) for any
outstanding Eurocurrency Loans of each affected Type and Interest Period or CDOR Loans, as
applicable, (A) the Applicable Borrower shall either (y) prepay such Eurocurrency Loans or CDOR
Loans, as applicable, or (z) convert such Eurocurrency Loans denominated in US Dollars into CB
Floating Rate Loans, and such CDOR Loans into Canadian Prime Loans, and (B) any Eurocurrency Loans
of each affected Type denominated in Sterling or Euro shall bear interest at such rate as the
Applicable Agent shall determine adequately and fairly reflects the cost of each affected Lender of
making or maintaining its Loans included in such Borrowing for such Interest Period plus the
Applicable Margin, in each case in accordance with the terms of this Agreement or continue such
Loans for an Interest Period not so affected, (iii) any Notice of Rate Change/Continuation that
requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency
Borrowing of any affected Type or CDOR Borrowing, as applicable, for such Interest Period shall be
ineffective, and (iv) if any Notice of Borrowing requests a Eurocurrency Borrowing in US Dollars
(if such Eurocurrency Borrowing is the affected Type) or a CDOR Borrowing, as applicable, for such
Interest Period, such Borrowing shall be made as a CB Floating Rate Borrowing or Canadian Prime
Borrowing, as applicable, and if any Notice of Borrowing requests a Eurocurrency Borrowing in
Sterling or Euro (if such Eurocurrency Borrowing is the affected Type), as applicable, for such
Interest Period, such Borrowing shall bear interest at such rate as the Applicable Agent shall
determine adequately and fairly reflects the cost to the affected Lenders of making or maintaining
their Loans included in such Borrowing for such Interest Period plus the Applicable Margin. Each
Lender will use reasonable efforts to designate a different lending office for funding or booking






68









 







its Loans hereunder or assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if such designation or assignment will avoid the effects of this
Section 3.3 and will not, in the judgment of such Lender, be otherwise materially
disadvantageous to it. The Applicable Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.




          3.4. Illegality.




               (a) If any Lender shall determine (which determination shall be conclusive and binding on the
Applicable Borrower, absent manifest error) that any Change in Law makes it unlawful, or any
central bank or other Governmental Authority having jurisdiction over it asserts that it is
unlawful, for such Lender to make, continue or maintain any Eurocurrency Loan at the Adjusted LIBO
Rate or the Adjusted EURIBO Rate, as the case may be, or CDOR Loan, as the case may be, in US
Dollars, Canadian Dollars or any other Alternative Currency, as, or to convert any Loan into, a
Eurocurrency Loan at the Adjusted LIBO Rate or the Adjusted EURIBO Rate, as the case may be, or
CDOR Loan, as applicable, the obligations of the affected Lender to make, continue, maintain or
convert any such Eurocurrency Loan or CDOR Loan shall, on notice thereof from such Lender (through
the Administrative Agent) to the Borrower, upon such determination, forthwith be suspended at the
end of the then current Interest Periods with respect thereto (or sooner, if required by such law
or assertion (in which case the provisions of Section 3.5 shall be applicable)) until such
Lender shall promptly notify the Administrative Agent and the Borrower that the circumstances
causing such suspension no longer exist. All Eurocurrency Loans of the affected Type from such
Lender denominated in US Dollars shall be converted to CB Floating Rate Loans and all CDOR Loans
from such Lender shall be converted to Canadian Prime Loans, as applicable, either on the last day
of the Interest Period thereof, if such Lender may lawfully continue to maintain such Eurocurrency
Loans or CDOR Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurocurrency Loans or CDOR Loans. If such Eurocurrency Loan is denominated in any
Alternative Currency, it shall be exchanged into its US Dollar Equivalent amount and be converted
into a CB Floating Rate Loan. Upon any such conversion, the Applicable Borrower shall also pay
interest on the amount so converted. If any such conversion of a Eurocurrency Loan occurs on a day
which is not the last day of the then current Interest Period with respect thereto, the Applicable
Borrower shall also pay to such Lender such amounts, if any, as may be required pursuant to
Section 3.5.



               (b) Each Lender will use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if such designation or assignment will avoid the effects of
this Section 3.4 and will not, in the judgment of such Lender, be otherwise disadvantageous
to it. The Applicable Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.



               (c) If the obligation of any Lender to make a Eurocurrency Loan or CDOR Loan or to maintain,
continue, or to convert Loans into, Eurocurrency Loans or CDOR Loans shall be suspended pursuant to
this Section 3.4, then, to the extent permitted by applicable Law and this Agreement, such
Lender’s Eurocurrency Loans or CDOR Loans shall be converted into CB Floating Rate Loans or
Canadian Prime Loans, as applicable, as provided above, and,



69









 




unless and until such Lender gives notice as provided below that the circumstances specified
in this Section 3.4 that gave rise to such conversion no longer exist:





          (i) to the extent that such Lender’s Eurocurrency Loans or CDOR Loans have been
so converted, all payments and prepayments of principal that would otherwise be
applied to such Lender’s Eurocurrency Loans or CDOR Loans shall be applied instead
to its CB Floating Rate Loans or Canadian Prime Loans, as applicable; and




          (ii) all Loans that would otherwise be made by such Lender as Eurocurrency
Loans or CDOR Loans shall be made instead as CB Floating Rate Loans or Canadian
Prime Loans, as applicable, all Loans that would otherwise be continued by such
Lender as Eurocurrency Loans or CDOR Loans shall be converted instead into CB
Floating Rate Loans or Canadian Prime Loans, as applicable, and all Loans of such
Lender that would otherwise be converted into Eurocurrency Loans or CDOR Loans shall
instead remain as CB Floating Rate Loans or Canadian Prime Loans, as applicable.


If such Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the
circumstances specified in this Section 3.4 that gave rise to the conversion of such
Lender’s Eurocurrency Loans or CDOR Loans pursuant to this Section 3.4 no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when
Eurocurrency Loans or CDOR Loans made by other Lenders are outstanding, such Lender’s CB Floating
Rate Loans or Canadian Prime Loans, as applicable, shall be automatically converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding Eurocurrency Loans or CDOR
Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Eurocurrency Loans or CDOR Loans and by such Lender are held pro rata (as to principal
amounts, Types, and Interest Periods) in accordance with their respective Commitments.




          3.5. Compensation. Upon the request of any Lender, and except as expressly provided herein,
the Applicable Borrower shall pay to the Administrative Agent for the account of such Lender such
amount or amounts as shall be sufficient (in the reasonable opinion of such Lender) to compensate
it for any loss, cost, or expense (including loss of anticipated profits) incurred by it as a
result of:




               (a) any payment, prepayment, or conversion of a Eurocurrency Loan or CDOR Loan for any reason
(including the acceleration of the Loans pursuant to Article XI) on a date other than the
last day of the Interest Period for such Eurocurrency Loan or CDOR Loan;



               (b) any failure by any Borrower for any reason (including, without limitation, the failure of
any condition precedent specified in Article VIII to be satisfied) to borrow, convert,
continue, or prepay a Eurocurrency Loan or a CDOR Loan on the date for such borrowing, conversion,
continuation, or prepayment specified in any notice delivered pursuant hereto; or



70









 





               (c) the assignment of any Eurocurrency Loan or CDOR Loan other than on the last day of the
Interest Period applicable thereto as a result of a requirement by any Borrower pursuant to
Section 3.6 or the CAM Exchange.



          In the case of a Eurocurrency Loan or CDOR Loan, such loss, cost or expense to any Lender
shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate, the Adjusted EURIBO Rate or CDOR Rate, as applicable, that
would have been applicable to such Loan plus the Applicable Margin that would have been applicable
to such Loan, for the period from the date of such event to the last day of the then- current
Interest Period therefor (or in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for deposits in the applicable
currency of a comparable amount and period from other banks in the applicable interbank market. A
certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender
is entitled to receive pursuant to this Section 3.5 shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Applicable Borrower shall pay such Lender the amount
shown as due on any such certificate within ten (10) days after receipt thereof.




          3.6. Replacement of Lenders. If any Lender requests compensation under Section 3.2 or
4.8, or if any Lender becomes a Defaulting Lender, or otherwise has given notice pursuant
to Section 3.2, 3.3 or 3.4 (unless in each case the basis for such request
or notice is generally applicable to all Lenders), or does not approve any request by the Borrower
to extend the then-scheduled Maturity Date, the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent within ninety (90) days of such request or
notice, if no Default or Event of Default exists, require such Lender to assign and delegate
without recourse (in accordance with and subject to the restrictions contained in Section
13.9), all its interests, rights and obligations under this Agreement and the other Loan
Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have
paid to the Administrative Agent the assignment fee specified in Section 13.9(b)(ii)(C),
(ii) the Borrower shall have received the applicable consents specified in Section 13.9(b),
(iii) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, and accrued interest thereon,
accrued fees and all other amounts payable to it hereunder (subject in each case to Section
4.7), from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts); (iv) in the case of any such assignment
resulting from a claim for compensation under Section 3.2 or 4.8, such assignment
will result in a reduction in such compensation or payments; (v) in the case of any such assignment
resulting from the failure to provide a consent, the assignee shall have given such consent and, as
a result of such assignment and any contemporaneous assignments and consents, the number of Lenders
necessary to effect such waiver, amendment or other modification has been obtained; and (vi) such
assignment does not violate applicable Law. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation






71









 







cease to apply. Each party hereto agrees that any assignment required pursuant to this
paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the
Administrative Agent and the assignee and that the Lender required to make such assignment need not
be a party thereto.




          3.7. Yearly Rate. Whenever interest hereunder is by the terms hereof to be calculated on the
basis of a year of 360 days (or 365 days during a year of 366 days), the rate of interest
applicable under this Agreement to such calculation expressed as an annual rate for the purposes of
the Interest Act (Canada) is equivalent to such rate as so calculated multiplied by the number of
days in the calendar year in which the same is to be ascertained and divided by 360 (or 365), as
applicable.




          3.8. Survival. The agreements contained in this Article III shall survive the
termination of this Agreement and the payment in full of the Obligations for a period of 180 days
thereafter.




ARTICLE IV

PREPAYMENTS AND OTHER PAYMENTS; REDUCTION AND

EXPANSION OF COMMITMENTS




          4.1. Repayment of Loans; Evidence of Debt.




               (a) (i) Each Borrower hereby unconditionally promises to pay (without duplication) (A) to the
Applicable Agent for the account of each applicable Lender the then-unpaid principal amount of each
of such Borrower’s Revolving Loans on the Maturity Date, and (B) to the Administrative Agent for
the account of the applicable Issuing Banks all LC Disbursements made pursuant to Letters of Credit
issued to such Borrower, as provided in Section 2.7(d), and (ii) the Borrower hereby
unconditionally promises to pay to the Swingline Bank the then-unpaid principal amount of each
Swingline Loan on the date such Swingline Loan is due pursuant to Section 2.6.



               (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.



               (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by an Applicable Agent
hereunder for the account of the Lenders (or any subset thereof) and each Lender’s share thereof.



               (d) The entries made in the accounts maintained pursuant to subsection (b)or
(c) of this Section 4.1 shall be prima facie evidence of the existence and amounts
of the obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner



72









 




affect the obligation of an Applicable Borrower to repay the Loans received by it in
accordance with the terms of this Agreement.




               (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, each Applicable Borrower shall prepare, execute and deliver to such Lender a promissory note
substantially in the form of Exhibit D, payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns). Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 13.9) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).



          4.2. Required Prepayments. The Administrative Agent will determine the US Dollar Equivalent of
the aggregate LC Exposure and of each Loan on each Spot Currency Determination Date. In the event
that the Administrative Agent determines that the US Dollar Equivalent of the Total Credit Exposure
exceeds the Total Commitment, or that the US Dollar Equivalent of the aggregate Alternative
Currency Exposures of any Class exceeds the total Alternative Currency Commitments with respect to
such Class, or that the US Dollar Equivalent of the aggregate Alternative Currency Exposures exceed
the Alternative Currency Sublimit, then it will notify the Borrower and the Borrower will (or will
cause one or more Subsidiary Borrowers to), within two (2) Business Days following such notice,
make a prepayment of principal of any one or more Revolving Loans (in the Borrower’s sole
discretion), in an amount at least equal to such excess, together with (y) interest accrued and
unpaid thereon to the date of such prepayment and (z) all amounts due, if any, under Section
3.5 (or, if no Revolving Loans are then outstanding, deposit cash collateral in an account with
the Administrative Agent pursuant to Section 11.2 in an aggregate amount equal to such
excess as cash collateral for the reimbursement obligations of such Borrower).




          4.3. Optional Prepayments. Each Borrower shall have the right at any time and from time to
time to prepay the Loans made to it, in whole or in part; provided that each partial
prepayment of any Loan shall be in an aggregate principal amount of at least the relevant Borrowing
Minimum or any Borrowing Multiple in excess thereof (provided that the resulting Loan shall
be in an amount at least the relevant Borrowing Minimum, unless prepaid completely), in each case
together with (y) interest accrued thereon to the date of such prepayment and (z) all amounts due,
if any, under Section 3.5. In connection with each voluntary prepayment the Applicable
Borrower shall provide the Administrative Agent (and, in the case of prepayment of a Swingline Loan
or Alternative Currency Loan, the Swingline Bank or Alternative Currency Lenders) with notice of
its intention to prepay,





          (i) no later than 11:00 a.m. Local Time on the date of prepayment in the case
of CB Floating Rate Loans or Canadian Prime Loans,




          (ii) no later than 11:00 a.m. Houston Time three (3) Business Days prior to the
date of prepayment in the case of Eurocurrency Loans denominated in US Dollars,



73









 






          (iii) no later than (y) 11:00 a.m. London Time four (4) Business Days prior to
the date of prepayment in the case of Eurocurrency Loans denominated in an
Alternative Currency, or (z) 11:00 a.m. Toronto Time three (3) Business Days prior
to the date of prepayment in the case of CDOR Loans, and




          (iv) no later than 11:00 a.m. Houston Time on the date of prepayment in the
case of Swingline Loans.


Such notice shall be irrevocable and shall specify the principal amount of each Borrowing or
portion thereof to be prepaid, the prepayment date and the account of the Applicable Borrower to be
charged if such prepayment is to be so effected. Notice of such prepayment having been given, the
principal amount of the Loans specified in such notice, together with accrued and unpaid interest
thereon to the date of prepayment, shall become due and payable on such prepayment date. If such
Borrower pays or prepays any Eurocurrency Loan or CDOR Loan prior to the end of the Interest Period
applicable thereto, such payment shall be subject to Section 3.5. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each prepayment shall be applied to each Borrowing (and within each such Borrowing,
ratably to the Loans therein) designated in the corresponding notice of prepayments.




          4.4. No Prepayment Premium or Penalty. Each prepayment pursuant to Section 4.2 or
4.3 shall be without premium or penalty but shall be subject to Section 3.5.




          4.5. Payments and Prepayments.




               (a) All payments to be made by the Borrowers shall be made without set-off, recoupment or
counterclaim. All payments and prepayments made in accordance with the provisions of this Agreement
or any other Loan Document (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 3.2, 3.5 or 4.8) shall
be made no later than the time expressly required hereunder for such payment (or, if no time is
expressly required, no later than 12:00 noon, Local Time, on the day when due), in immediately
available funds, to the Applicable Agent, for the account of the relevant Lenders or the relevant
Issuing Bank, to an account that the Applicable Agent shall have identified in a notice delivered
to the Applicable Borrower, except payments to be made for the account of an Issuing Bank or
Swingline Bank shall be made as expressly provided herein and except that all payments pursuant to
Sections 3.2, 3.4, 3.5, 4.8 and 13.12 shall be made directly to the Persons
entitled thereto, no later than 12:00 noon, Local Time, on the date when due, in immediately
available funds, with notice of each such payment being given to the Administrative Agent. All
payments hereunder of principal or interest in respect of any Loan (or of any breakage indemnity in
respect of any Loan) or LC Disbursements shall be made in the currency of such Loan or LC
Disbursement; all other payments hereunder shall be made in US Dollars.



               (b) Unless (i) otherwise set forth herein with respect to Defaulting Lenders or (ii) the
Applicable Agent shall have received notice from the Borrower prior to the date on which any
payment is due to such Applicable Agent for the account of any Lender or any Issuing Bank that the
Applicable Borrower will not make such payment in full, such Applicable



74









 







Agent may assume that such
Applicable Borrower has made such payment in full to such
Applicable Agent on such date and such Applicable Agent may, in reliance upon such assumption
(but shall not be required to) cause to be distributed to each Lender or Issuing Bank on such due
date an amount equal to the amount then due. If and to the extent the Applicable Borrower shall not
have so made such payment in full to such Applicable Agent, each Lender or Issuing Bank, as the
case may be, severally agrees to repay to such Applicable Agent forthwith on demand the amount
distributed to such Lender or such Issuing Bank, as the case may be, together with interest
thereon, for each day from and including the date such amount is distributed to such Lender until
but excluding the date such Lender or such Issuing Bank repays such amount to such Applicable
Agent, (y) in the case of an amount denominated in US Dollars, at the greater of the Federal Funds
Effective Rate and a rate determined by such Applicable Agent in accordance banking industry rules
on interbank compensation, and (z) in the case of an amount denominated in an Alternative Currency,
a rate reasonably determined by such Applicable Agent in accordance with banking industry rules on
interbank compensation.



               (c) The Applicable Agent shall promptly remit to each Lender its Pro Rata Percentage or
Applicable Participation Percentage (as the case may be) with respect to the Loan or Loans being
prepaid of payments received by it pursuant to Section 4.5(a) in immediately available
funds, except that all reimbursement payments in respect of losses, expenses, funding losses or the
like shall be retained by the Applicable Agent or remitted to the Lenders and the Issuing Banks
according to their respective appropriate entitlement to such reimbursement and, in each case,
except as otherwise provided herein with respect to Defaulting Lenders. Unless otherwise provided
in this Agreement or the other Loan Documents (including any notice of prepayment), payments and
prepayments shall be applied (i) first to accrued and unpaid fees (to the extent then payable),
then (ii) to accrued and unpaid interest (to the extent then payable), then (iii) to the payment of
unreimbursed LC Disbursements then due hereunder, then (iv) to the principal of CB Floating Rate
Loans and Canadian Prime Loans, and (v) then to the principal of Eurocurrency and CDOR Loans (and
among CDOR Loans and Eurocurrency Loans, first to those with the earliest expiring Interest
Periods).



               (d) If and to the extent that the Administrative Agent receives any payment or prepayment from
the Borrowers and fails to distribute such payment or prepayment to the applicable Lenders ratably
on the basis of their respective Pro Rata Percentages or Applicable Participation Percentages (as
the case may be) with respect to the Class of the Loan or Loans being prepaid on the day the
Administrative Agent receives such payment or prepayment (or, if the Administrative Agent receives
the same after 12:00 noon, Local Time, on the immediately following Business Day), and such
distribution shall not be so made by the Administrative Agent in full on the required day, the
Administrative Agent shall pay to each Lender interest on the amount owed each Lender at the rate
determined by the Administrative Agent to be its cost of funds for each day from the date such
amount is paid to the Administrative Agent by the Applicable Borrower until the date the
Administrative Agent pays such amount to such Lender. Notwithstanding the Administrative Agent’s
failure to so distribute any such payment, as between the Borrowers, the Lenders and the Issuing
Banks, such payment shall be deemed received and collected as provided in Section 4.5(a).



               (e) No party hereto (or guarantor thereof) shall be liable to any other party hereto (or
guarantor thereof) in any way whatsoever for any delay, or the consequences of



75









 







any delay, in the
crediting to any account of any amount required by this Agreement to be paid
by the Administrative Agent if the Administrative Agent shall have taken all relevant steps to
achieve, on the date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds in US Dollars to the account with the bank in the
principal financial center which the Applicable Borrower or, as the case may be, any Lender or
Issuing Bank shall have specified for such purpose. In this subsection (e), “all
relevant steps” means all such steps as may be prescribed from time to time by the regulations
or operating procedures or such clearing or settlement system as the Administrative Agent may from
time to time determine for the purpose of clearing or settling payments of US Dollars.



               (f) If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day (unless, in the case of Eurocurrency
Borrowings or CDOR Borrowings, the result of such extension of time would be to extend the date of
such payment into another calendar month or beyond the scheduled Maturity Date, and in either such
event such payment shall be made on the Business Day immediately preceding the date on which such
payment would otherwise have been due), and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension.



          4.6. Sharing of Set-offs. If any Lender or Issuing Bank shall, by exercising any right of set
off or counterclaim pursuant to Section 13.8 or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender’s or Issuing Bank’s receiving payment of a greater
proportion of the aggregate principal amount of its Revolving Loans, participations in LC
Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender or Issuing Bank receiving such greater proportion shall notify the
Administrative Agent of such fact and shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders, as
applicable, or make such other adjustments as shall be equitable, to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of such obligations then due and payable to the Lenders; provided that (i)
if any such participations are purchased and all or any portion of the payment giving rise thereto
is recovered, such participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by any of the Borrowers pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in LC Disbursements,
Alternative Currency Loans and Swingline Loans to any permitted assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Applicable Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Applicable Borrower in the amount of such participation.




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          4.7. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, upon
a Lender’s becoming a Defaulting Lender, and upon notice to such effect by
the Administrative Agent to the other Lenders, the Swingline Bank and the Borrower (which
notice shall be given promptly after the Administrative Agent becomes aware that any Lender has
become a Defaulting Lender, including as a result of being advised thereof by any Lender, any
Issuing Bank, the Swingline Bank or the Borrower) the following provisions shall apply for so long
as such Lender is a Defaulting Lender:




               (a) the commitment fee payable pursuant to Section 5.1 shall cease to accrue on the
Unused Commitment of such Defaulting Lender, and no portion of any Loan repaid after a Lender
becomes, and while it remains, a Defaulting Lender shall thereafter be deemed or considered a
portion of such Defaulting Lender’s Unused Commitment;



               (b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in
determining whether the Majority Lenders or all of the Lenders have taken or may take any action
hereunder (including any consent to any amendment, waiver or other modification pursuant to
Section 13.17), provided that any waiver, amendment or modification that increases
the Commitment of the Defaulting Lender or reduces the principal amount due to the Defaulting
Lender, or interest payable on, Loans or payments made by an Issuing Bank under a Letter of Credit,
or extends any scheduled principal payment due to the Defaulting Lender shall require its consent
to the same extent as if it were not a Defaulting Lender;



               (c) if any Swingline Loans are outstanding or any LC Exposure exists at the time a Lender is a
Defaulting Lender, then:




          (i) all or any part of the Swingline Exposure and LC Exposure of such
Defaulting Lender shall be reallocated among the non-Defaulting Lenders in
accordance with such non-Defaulting Lenders’ respective Pro Rata Percentages (for
the purposes of such reallocation, the Defaulting Lender’s Commitment shall be
disregarded from the Total Commitments in determining such non-Defaulting Lender’s
Pro Rata Percentage) but only to the extent (x) the sum of all non-Defaulting
Lender’s Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC
Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and
(y) the conditions set forth in Section 8.3(a) are satisfied at such time;




          (ii) if the reallocation described in clause (c)(i) above cannot, or
can only partially, be effected, the Borrower shall within three (3) Business Days
following the Borrower’s receipt of notice from the Administrative Agent (x) first,
prepay such outstanding Swingline Exposure of such Defaulting Lender (without
obligation to prepay the Swingline Exposure of any non-Defaulting Lender) and (y)
second, cash collateralize such Defaulting Lender’s LC Exposure (after giving effect
to any partial reallocation pursuant to clause (c)(i) above) in accordance
with the procedures set forth in Section 11.2 (and the cash so deposited
shall be held, invested and applied by the Administrative Agent in a manner
consistent with the investment and other procedures described in



77









 







Section 11.2) for so long as such LC Exposure is outstanding and such Lender is a
Defaulting Lender;




          (iii) if the Borrower cash collateralizes any portion of such Defaulting
Lender’s LC Exposure pursuant to clause (c)(ii) above, the Borrower shall
not be required to pay any fees to such Defaulting Lender pursuant to Section
5.4 (and no such fees shall accrue) with respect to such Defaulting Lender’s LC
Exposure during the period such Defaulting Lender’s LC Exposure is cash
collateralized;




          (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant
to clause (c)(i) above, the fees payable to the Lenders pursuant to
Section 5.4(a) and Section 5.4(b) shall be adjusted in accordance
with such non-Defaulting Lenders’ Pro Rata Percentages after giving effect to such
reallocation; and




          (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (c)(i) or
(c)(ii) above, then, without prejudice to any rights or remedies of the
Issuing Bank or any other Lender hereunder, all Letter of Credit Fees payable under
Section 5.4 with respect to such Defaulting Lender’s LC Exposure (solely
with respect to the portion of such Defaulting Lender’s Commitment that was utilized
by such LC Exposure) shall be payable to the Issuing Bank until and to the extent
that such LC Exposure is reallocated and/or cash collateralized pursuant to
clause (c)(i) or (c)(ii) above.



               (d) So long as any Lender is a Defaulting Lender, the Swingline Bank shall not be required to
fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, extend or increase
any Letter of Credit with respect to which such Defaulting Lender has a Commitment, unless it is
satisfied that the Defaulting Lender’s then-outstanding LC Exposure and Swingline Exposure, as
applicable, will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash
collateral will be provided by the Borrower in accordance with Section 4.7(c)(ii), and
participating interests in any newly made Swingline Loan or any newly issued or increased Letter of
Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section
4.7(c)(i) (and such Defaulting Lender shall not participate therein).



               (e) No Commitment of any Lender shall be increased or otherwise affected and, except as
expressly provided in this Section 4.7, performance by the Borrowers of their obligations
hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result
of the operation of this Section 4.7. The rights and remedies against, and with respect to,
a Defaulting Lender under this Section 4.7 are in addition to, and cumulative and not in
limitation of, all other rights and remedies that any Borrower, any other Loan Party, any Agent,
the Swingline Bank, any Issuing Bank, or any Lender other than a Defaulting Lender may at any time
have against, or with respect to, such Defaulting Lender (and, for the avoidance of doubt, each
Borrower, each other Loan Party, each Agent, the Swingline Bank, each Issuing Bank, and each Lender
other than a Defaulting Lender shall have a claim



78









 







against any Defaulting Lender for any losses it
might suffer as a result of the operation of this Section 4.7).



               (f) In the event that the Administrative Agent, the Swingline Bank, each Issuing Bank and the
Borrower agree in writing that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender (the date of agreement by all such Persons hereinafter called
the “Remedy Date”), then (i) the obligations of the Lenders to purchase participations in
Swingline Loans and the participations of the Lenders in Letters of Credit shall be readjusted to
reflect that such Lender is no longer a Defaulting Lender; (ii) on the Remedy Date, such Defaulting
Lender shall purchase at par such of the Loans of the other Lenders (and participations in their
respective Swingline Exposure and LC Exposure) as may be necessary in order for such Lender to hold
such Loans and LC Exposure in accordance with its Pro Rata Percentage or Applicable Participation
Percentage (as the case may be); and (iii) such Lender shall no longer be a Defaulting Lender.



          4.8. Taxes.




               (a) Any and all payments by or on account of any obligation of the Borrowers hereunder or
under any other Loan Document to or for the account of any Lender, any Issuing Bank or any
Applicable Agent shall be made free and clear of and without deduction or withholding for
Indemnified Taxes or Other Taxes. If an Applicable Borrower shall be required by law to deduct any
Indemnified Taxes or Other Taxes from or in respect of any sum payable hereunder or under any other
Loan Document to any Lender, any Issuing Bank or any Agent, (i) the sum payable shall be increased
as may be necessary so that, after making all required deductions (including deductions applicable
to additional sums payable under this Section 4.8), such Lender, such Issuing Bank or such
Agent (as the case may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Applicable Borrower shall make such deductions, (iii) the Applicable
Borrower shall timely pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) the Applicable Borrower shall, as soon as
reasonably practicable after any payment of Indemnified Taxes or Other Taxes to a taxation
authority or other authority, deliver official tax receipts or certified copies of such receipts
issued by such taxation authority or other authority evidencing such payment, a copy of the return
reporting such payment, or other evidence of such payment to the Administrative Agent.



               (b) Without limiting the provisions of Section 4.8(a), the Applicable Borrower shall
timely pay any and all Other Taxes to the relevant taxation authority in accordance with applicable
law, to the extent such Other Taxes are imposed on such Borrower under applicable law.



               (c) The Borrower will indemnify each Lender, each Agent and each Issuing Bank for the full
amount of Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 4.8) paid by such Lender, such
Agent or such Issuing Bank (as the case may be) on or with respect to any payment by or on account
of any obligation of any Applicable Borrower hereunder or under any other Loan Document and any
liability (including penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or



79









 







Other Taxes were correctly or legally imposed or asserted.
This indemnification shall be made within thirty (30) days from the date such Lender, such
Applicable Agent or such Issuing Bank (as the case may be) makes written demand therefor. A
certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or an Issuing Bank (with a copy to
the Administrative Agent) or by any Agent on its own behalf on or behalf of a Lender or an Issuing
Bank shall be conclusive absent manifest error. Notwithstanding anything herein to the contrary,
neither any Lender, any Issuing Bank, nor any Agent shall be indemnified for any Indemnified Taxes
or Other Taxes pursuant to this Section 4.8(c) unless such Lender, such Issuing Bank, or
such Agent (as the case may be) shall make written demand on the Applicable Borrower for such
reimbursement no later than six (6) months after the earlier of (i) the date on which the relevant
taxing authority makes written demand upon such Person for such Indemnified Taxes or Other Taxes,
or (ii) the date on which such Person has made payment of such Indemnified Taxes or Other Taxes;
provided that if the Indemnified Taxes or Other Taxes imposed or giving rise to such claims
are retroactive, then the six-month period referred to in this Section 4.8(c) shall be
extended to include the period of retroactive effect thereof.



               (d) Each Lender and each Issuing Bank severally agrees to indemnify each Agent and each
Alternative Currency Lender, within thirty (30) days after written demand therefor, for the full
amount of any Excluded Taxes attributable to such Lender or such Issuing Bank that are paid or
payable by such Agent or Alternative Currency Lender (if applicable) in connection with any Loan
Document plus any penalties, interest and reasonable expenses arising therefrom or with respect
thereto (other than any amounts for which such Agent or Alternative Currency Lender, if applicable,
has been reimbursed by the Applicable Borrower), whether or not such Excluded Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the applicable Lender or Issuing Bank by an Agent
or an Alternative Currency Lender (if applicable) shall be conclusive absent manifest error.
Nothing herein shall prevent any Lender or any Issuing Bank from contesting the applicability of
any Excluded Taxes that it believes to have been incorrectly or illegally imposed or asserted by
any Governmental Authority; provided that no such contest shall suspend the obligation of
any Lender or Issuing Bank to pay amounts due to an Agent or any Alternative Currency Lender (if
applicable) as provided in the first sentence of this Section 4.8(d).



               (e) Each Lender that is entitled to an exemption from or a reduction in withholding taxes with
respect to payments under this Agreement or under any other Loan Document, on or prior to the date
of its execution and delivery of this Agreement in the case of each Lender listed on the signature
pages hereof and on or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as required by applicable law or as reasonably requested
by the Borrower or the Administrative Agent (but only so long as such Lender remains lawfully able
to do so), shall provide the Borrower and the Administrative Agent with such properly completed and
executed documentation as prescribed by applicable law or as reasonably requested by the Borrower
as will permit payments under this Agreement or under any other Loan Document to be made without
withholding or at a reduced rate of withholding; provided, that Lenders (other than Lenders
lending to the UK Borrower from a lending office in the UK) cannot qualify for the UK domestic
exemption from withholding tax and need not provide any such evidence with respect to such tax. In
addition, each Lender, on or prior to the date of its execution and delivery of this Agreement in
the case of




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each Lender listed on
the signature pages hereof and on or prior to the date on which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as required by applicable law or as requested
by the Borrower or the Administrative Agent, shall deliver to the Borrower and the Administrative
Agent such other documentation prescribed by applicable law or reasonably requested by the Borrower
or the Administrative Agent as will certify that such Lender is not subject to U.S. federal backup
withholding and enable the Borrower or the Administrative Agent to determine whether or not such
Lender is subject to information reporting requirements.




          Without limiting the foregoing, in the event the Applicable Borrower is a United States Person
or is engaged in a trade or business in the United States, any Foreign Lender shall deliver to such
Applicable Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Applicable Borrower or the
Administrative Agent or as required by applicable law, but only if such Foreign Lender is legally
required to do so), whichever of the following is applicable: (i) duly completed copies of Internal
Revenue Service Form W-8 BEN or W-ECI, as appropriate, or any successor form prescribed by the
Internal Revenue Service, claiming eligibility for the benefits under an income tax treaty to which
the United States is a party which eliminates or reduces the rate of withholding tax on payments
under this Agreement or under any other Loan Document or certifying that the income receivable
pursuant to this Agreement or any other Loan Document is effectively connected with such Lender’s
conduct of a trade or business in the United States, (ii) in the case of a Foreign Lender claiming
the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of
Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of such Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” related to
the Borrower, as described in Section 881(c)(3)(C) of the Code, and (y) duly completed copies of
Internal Revenue Service Form W-8BEN, and (iii) any other form or certificate required by any
taxing authority or applicable law (including any certificate required by Sections 871(h) and
881(c) of the Code), as a basis for claiming exemption from, or a reduction in United States
federal withholding tax, duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Applicable Borrower or the Administrative Agent to
determine the withholding or deduction required to be made.




          Without limiting the foregoing, if a Lender or an Issuing Bank would be subject to United
States federal withholding taxes imposed under FATCA on payments made under this Agreement or under
any other Loan Document and such Lender or Issuing Bank fails to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender or Issuing Bank shall provide such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Applicable Borrower or the Administrative
Agent as may be necessary for the Applicable Borrower or the Administrative Agent to comply with
its obligations under FATCA, to determine that such Lender or such Issuing Bank has complied with
such Lender’s obligations under FATCA, or to determine the amount to deduct and withhold from any
such payments.




81









 








          Without limiting the obligations of the Lenders and the Issuing Banks set forth in the
foregoing provisions of this Section 4.8(e), each Lender or Issuing Bank that is entitled
to an exemption from or a reduction in withholding taxes with respect to payments under this
Agreement or under any other Loan Document agrees to deliver to the Administrative Agent and the
Applicable Borrower, on or prior to the date of its execution and delivery of this Agreement in the
case of each Lender and Issuing Bank listed on the signature pages hereof and on or prior to the
date on which it becomes a Lender or Issuing Bank in the case of each other Lender or Issuing Bank,
and from time to time thereafter as required by applicable law or as reasonably requested by the
Applicable Borrower or the Administrative Agent, such other documents and forms required by any
relevant taxing authorities under the laws of any other jurisdiction, duly executed and completed
by such Lender or Issuing Bank, as are required under such laws to confirm such Lender’s or Issuing
Bank’s entitlement to any available exemption from, or reduced rate of, applicable withholding
taxes in respect of all payments to be made to such Lender or Issuing Bank pursuant to this
Agreement or any other Loan Document by the Applicable Borrower that is not a United States Person
and that is not engaged in a trade or business in the United States or otherwise to establish such
Lender’s or such Issuing Bank’s status for withholding tax purposes in such other jurisdiction.




          Each Lender and each Issuing Bank shall promptly (i) notify the Borrower and the
Administrative Agent of any change in circumstances which would modify or render invalid any
claimed exemption or reduction in withholding taxes with respect to payments under this Agreement
or under any other Loan Document, (ii) take such steps as shall not be materially disadvantageous
to it, in the good faith judgment of such Lender or Issuing Bank, and as may be reasonably
necessary (including the re-designation of its lending office) to avoid any requirement of
applicable laws of any such jurisdiction that the Applicable Borrower make any deduction or
withholding for taxes from amounts payable to such Lender or Issuing Bank, and (iii) deliver to the
Applicable Borrower and the Administrative Agent any properly completed and executed documentation
prescribed by applicable law as will permit payments pursuant to this Agreement and the other Loan
Documents to be made without, or at a reduced rate of, withholding.




               (f) For any period with respect to which a Lender or an Issuing Bank has failed to provide the
Applicable Borrower and the Administrative Agent with the appropriate form pursuant to Section
4.8(e) (unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided), such Lender or such
Issuing Bank shall not be entitled to indemnification under this
Section 4.8 with respect to Indemnified Taxes imposed in excess of the amount of
Indemnified Taxes that would have been imposed had such Lender or such Issuing Bank provided the
appropriate form; provided, that should a Lender or an Issuing Bank, which is otherwise
exempt from or subject to a reduced rate of withholding Tax, become subject to Taxes because of its
failure to deliver a form required hereunder, the Applicable Borrower shall take such steps as such
Lender or such Issuing Bank shall reasonably request to assist such Lender to recover such Taxes.



               (g) Additionally, the Borrower shall promptly deliver or cause to be delivered to any
Applicable Agent, any Lender or any Issuing Bank, as such Applicable Agent, such Lender or such
Issuing Bank shall reasonably request, such documents and forms required by any relevant taxing
authorities under the laws of any jurisdiction, duly executed and



82









 




completed by the relevant Loan
Party, as are required under applicable laws in connection with any payment by any Applicable
Agent, any Lender or any Issuing Bank of Taxes or Other Taxes, or otherwise in connection with the
Loan Documents with respect to such jurisdiction.




               (h) If a Borrower is required to pay additional amounts to or for the account of any Lender
pursuant to this Section 4.8, such Lender will agree to use reasonable efforts to designate
a different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates so as to eliminate or
reduce any such additional payment which may thereafter accrue unless such change, in the sole
discretion of such Lender, is or will be not otherwise disadvantageous to such Lender, designee,
assignee or any of their respective Affiliates.



               (i) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the
agreement and obligations of the Borrowers contained in this Section 4.8 shall survive the
payment in full of principal and interest hereunder, the expiry of all Letters of Credit, and the
termination of all Commitments.



               (j) If any Agent, any Lender or any Issuing Bank determines, in its sole discretion, that it
has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified
by a Borrower or with respect to which a Borrower has paid additional amounts pursuant to this
Section 4.8, it shall pay to such Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by such Applicable Borrower under
this Section 4.8 with respect to the Indemnified Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Agent, such Lender or such Issuing Bank, as the
case may be, and without interest (other than any interest received by such Agent, Lender or
Issuing Bank from the relevant Governmental Authority with respect to such refund);
provided that (without limiting the obligations of any Applicable Borrower under
Section 4.8(c)) such Borrower, upon the request of such Agent, Lender or Issuing Bank,
shall repay the amount paid over to such Borrower (plus any and all penalties, interest or other
charges imposed by the relevant Governmental Authority) to such Agent, Lender or Issuing Bank in
the event such Agent, Lender or Issuing Bank is required to repay such refund to such Governmental
Authority. This paragraph shall not be construed to require any Agent, any Lender or any Issuing
Bank to make available its tax returns or any other information relating to its taxes which it
deems confidential to any Borrower or any other Person.



               (k) A UK Treaty Lender which holds a passport under the HMRC DT Treaty Passport scheme which
becomes a party to this Agreement, and that wishes that scheme to apply to a UK Loan or a Letter of
Credit issued in the UK to the UK Borrower, shall include an indication to that effect by including
its scheme reference number and its jurisdiction of tax residence in Schedule 2.1 hereto,
or, where relevant, in the relevant Assignment and Assumption (for the benefit of the
Administrative Agent and without liability to any Borrower) or in such Lender’s Joinder Agreement.
If such Lender includes the indication described above, the UK Borrower shall file a duly completed
form DTTP2 in respect of such Lender with HM Revenue & Customs within thirty (30) days of the
Closing Date or the effective date of the relevant Assignment and Assumption or Joinder Agreement
(as the case may be). If a Lender has not indicated that it wishes the HMRC DT Treaty Passport
scheme to apply in accordance with this subsection (k) as per the above, no Borrower shall



83









 




file any form relating to the HMRC DT Treaty Passport scheme in respect of any UK Loans held by
such Lender or any Letters of Credit issued for the account of the UK Borrower. For the avoidance
of doubt, nothing in this Section 4.8(k) shall require a UK Treaty Lender to (i) register
under the HMRC DT Treaty Passport scheme or (ii) apply the HMRC DT Treaty Passport scheme to any UK
Loan held by such Lender or any Letters of Credit issued for the account of the UK Borrower if it
has so registered. If on the Closing Date a UK Treaty Lender has applied for but not yet received
its passport exemption, upon receipt of the necessary information from that Lender the UK Borrower
will file a completed form DTTP2 in respect of such Lender with HM Revenue & Customs as soon as
reasonably possible after the UK Borrower’s receipt of such information.




          4.9. Reduction and Termination of Commitments.




               (a) Unless previously terminated, the Commitment of each Lender shall automatically terminate
on the Maturity Date.



               (b) The Borrower may, at any time or from time to time, permanently reduce on a pro rata basis
or terminate the Commitments of the Lenders or, if there are no outstanding Loans to or Letters of
Credit issued for the account of, a Subsidiary Borrower, terminate a Subsidiary Borrower’s right to
request a Borrowing or Letter of Credit hereunder, in each case by giving not less than three (3)
full Business Days’ prior written notice to such effect to the Administrative Agent;
provided that (i) any partial reduction shall be in an amount of not less than $5,000,000
or an integral multiple of $5,000,000 in excess thereof and (ii) the Borrower shall not terminate
or reduce the Commitments if, immediately after giving effect to any concurrent prepayment of the
Loans in accordance with Section 4.3, the Total Credit Exposure would exceed the Total
Commitment. Upon any such termination such Subsidiary Borrower shall cease to be a Subsidiary
Borrower (but, unless unrestricted, shall continue to be a Restricted Subsidiary or Material
Restricted Subsidiary, as the case may be). Promptly after the Administrative Agent’s receipt of
such notice of reduction or termination, the Administrative Agent shall notify each Lender and each
Issuing Bank of the proposed reduction or termination, and such reduction or termination shall be
effective on the date specified in the Borrower’s notice with respect to such reduction or
termination. Each reduction of the Commitments shall reduce the Commitment of each Lender
proportionately in accordance with its Pro Rata Percentage. After each such reduction, the
commitment fee shall be calculated upon the Total
Commitment as so reduced. Any reduction or termination of the Commitments hereunder shall be
irrevocable.



          4.10. Repayment in Connection with Commitment Reductions, Certain Currency Exchange
Fluctuations and on Maturity Date. Upon the effective date of each voluntary reduction in the
Commitments referred to in Section 4.9(b) and at any time that the US Dollar Equivalent (at
the Spot Exchange Rate) of the aggregate principal amount of the Loans causes the sum of the amount
of Revolving Loans, Swingline Loans and LC Exposures to exceed the amount of the Total Commitment
on any Spot Currency Determination Date, then, within two (2) Business Days of such Spot Currency
Determination Date, the Borrower shall pay to the Administrative Agent for the benefit of the
Lenders the principal amount of the Revolving Loans and/or Swingline Loans, to the extent, if any,
that (a) the aggregate principal amount of any Revolving Loans and Swingline Loans then outstanding
plus the aggregate LC Exposures




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exceeds (b) the amount of the Total Commitment as so reduced.
Accrued and unpaid interest on the amount of the Loans so prepaid shall be due and payable at the
time of such prepayment. All amounts of principal, interest and fees relating to Loans not due and
payable before the Maturity Date are due and payable on that date. If, after giving effect to any
reduction of the Total Commitment, any Alternative Currency Sublimit shall exceed the amount of the
Total Commitment as so reduced, such Alternative Currency Sublimit shall be automatically reduced
by the amount of such excess.




          4.11. Increase of the Commitments.




               (a) Subject to the terms and conditions set forth herein and to the consent of the
Administrative Agent (which consent shall not be unreasonably withheld), and provided that
no Default or Event of Default then exists, the Borrower shall have the right to cause from time to
time an increase in the aggregate Commitments of the Lenders (together with an increase in the
Alternative Currency Sublimit, if the Borrower shall so request and if one or more Alternative
Currency Lenders are available to fund such Loans if the Lenders otherwise are unable to fund such
Loans) (each, a “Commitment Increase”) by adding to this Agreement one or more commercial
banks or other recognized financial institutions that are not already Lenders hereunder and that
are reasonably satisfactory to the Administrative Agent and the Issuing Banks (each, an
“Additional Lender”) or by allowing one or more existing Lenders to increase their
respective Commitments (each, an “Increasing Revolving Lender”); provided that (i)
no Default shall have occurred and be continuing as of the relevant Commitment Increase Effective
Date, (ii) no such Commitment Increase shall be less than $10,000,000, (iii) the aggregate
principal amount of all such Commitment Increases shall not exceed $100,000,000, (iv) no Lender’s
Commitment shall be increased without such Lender’s prior written consent (which consent may be
given or withheld in such Lender’s sole and absolute discretion), and (v) if, on the relevant
Commitment Increase Effective Date, any Revolving Loans have been funded, each Applicable Borrower
shall be obligated to pay any breakage fees or costs that are payable pursuant to Section
3.5 in connection with the reallocation of such outstanding Revolving Loans.



               (b) The Borrower shall provide the Administrative Agent with written notice in the form of
Exhibit H (a “Notice of Commitment Increase”) of its intention to increase the
Commitments pursuant to this Section 4.11. Each such Notice of Commitment Increase shall
specify (i) the Class with respect to which such Commitment Increase is proposed; (ii) the
proposed effective date of such Commitment Increase (each such date, a “Commitment
Increase Effective Date”), which shall be no earlier than ten (10) Business Days after receipt
by the Administrative Agent of such Notice of Commitment Increase, (iii) the amount of the
requested Commitment Increase (provided that after giving effect to such requested
Commitment Increase, the aggregate principal amount of all Commitment Increases does not exceed the
amount set forth in subsection (a)(iii) above), and (iv) the identity of, the amount of the
Commitment requested by, and notification information for, each proposed Additional Lender. The
Borrower shall give the existing Lenders the first opportunity to provide any increase in the
Commitment.



               (c) The Administrative Agent shall notify the Lenders and the Additional Lenders promptly
following its receipt of each Notice of Commitment Increase. Each Lender shall notify the
Administrative Agent within the time permitted in the Notice of Commitment Increase whether it
agrees to increase its Commitment and, if so, whether by an



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amount equal to, greater than, or less
than its Pro Rata Percentage or Applicable Participation Percentage, as the case may be, of the
requested increase. Each Additional Lender shall notify the Administrative Agent within such time
period of the amount, if any, it agrees to commit to such proposed Commitment Increase. Any Lender
or Additional Lender not responding within such time period shall be deemed to have declined to
increase its Commitment or commit to such Commitment Increase, as the case may be. If more than one
existing Lender offers to provide an increase in the Commitments, such increase shall be allocated
among the offering Lenders according to their Pro Rata Percentages or Applicable Participation
Percentages, as the case may be.




               (d) The Administrative Agent, in consultation with the Borrower, shall allocate the
Commitments among the Lenders and, if the Lenders do not subscribe to the entire amount of the
requested Commitment Increase, the Additional Lenders; provided, that no Lender or
Additional Lender shall be allocated a Commitment less than $5,000,000.00. The Administrative Agent
shall notify the Borrower, each Agent, each Issuing Bank, each Lender and each proposed Additional
Lender of the amount of the Commitment of each that has resulted. Such notice shall set forth the
effective date and amount of the Commitment Increase, the names of the Additional Lenders and their
respective Commitments and the names of the existing Lenders and their respective Commitments.
Notwithstanding anything to the contrary, no Commitment of an existing Lender shall be increased or
reduced until all consents under Section 13.17 have been received. To the extent one or
more Additional Lenders are required to achieve the full amount of the requested Commitment
Increase, each Additional Lender becoming a party hereto shall enter into a Joinder Agreement in
substantially the form of Exhibit L to this Agreement (each, a “Joinder
Agreement”) with the Borrower, the Issuing Banks and the Administrative Agent and assuming
thereby to the extent set forth therein all rights and obligations of a Lender hereunder.



               (e) As a condition precedent to such an increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party (in sufficient copies for each Lender and
each Additional Lender) signed by an authorized officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and
(ii) in the case of the Borrower, certifying that, before and after giving effect to such increase,
(A) the representations and warranties contained herein and the other Loan Documents are true and
correct in all material respects, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they were
true and correct in all material respects as of such earlier date, and (B) no Default or Event of
Default exists. On or about the date of such increase, all outstanding Loans shall be reallocated
among the Lenders (including any Additional Lenders) in accordance with the Lenders’ respective
revised Pro Rata Percentages of the Total Commitment.



               (f) On each Commitment Increase Effective Date, to the extent that there are Revolving Loans
outstanding as of such date, (i) each Additional Lender shall, by wire transfer of immediately
available funds, deliver to the Administrative Agent such Additional Lender’s New Funds Amount,
which amount, for each such Additional Lender, shall constitute Revolving Loans made by such
Additional Lender to the applicable Borrower pursuant to this Agreement on such Commitment Increase
Effective Date, (ii) each Increasing Revolving Lender shall, by wire transfer of immediately
available funds, deliver to the Administrative Agent such



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Increasing Revolving Lender’s New Funds
Amount, which amount, for each such Increasing Revolving Lender, shall constitute Revolving Loans
made by such Increasing Revolving Lender to the applicable Borrower pursuant to this Agreement on
such Commitment Increase Effective Date, (iii) the Administrative Agent shall, by wire transfer of
immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount,
which amount, for each such Reducing Percentage Lender, shall constitute a prepayment by the
applicable Borrower pursuant to Section 4.3, ratably in accordance with the respective
principal amounts thereof, of the principal amounts of all then outstanding Revolving Loans of such
Reducing Percentage Lender, provided that the applicable Borrower shall not be required to
ratably pay any Lenders other than Reducing Percentage Lenders and (iv) the applicable Borrower
shall be responsible to pay to each Lender any breakage fees or costs that are payable pursuant to
Section 3.5 in connection with the reallocation of any outstanding Revolving Loans.




               (g) For purposes of this Section 4.11 and Exhibit H, the following defined
terms shall have the following meanings: (i) “New Funds Amount” means the amount equal to
the product of (A) an Additional Lender’s Commitment or an Increasing Revolving Lender’s increased
Commitment, as applicable, represented as a percentage of the Total Commitment after giving effect
to any Commitment Increase, times (B) the aggregate principal amount of the outstanding Revolving
Loans immediately prior to giving effect to such Commitment Increase, if any, as of any Commitment
Increase Effective Date (without regard to any increase in the aggregate principal amount of
Revolving Loans as a result of borrowings made immediately after giving effect to such Commitment
Increase on such Commitment Increase Effective Date); (ii) “Reducing Percentage Lender”
means, immediately prior to giving effect to any Commitment Increase, each then existing Lender
that does not increase its Commitment as a result of such Commitment Increase and whose relative
percentage of the Commitments shall be reduced after giving effect to such Commitment Increase; and
(iii) “Reduction Amount” means the amount by which a Reducing Percentage Lender’s
outstanding Revolving Loans decrease as of any Commitment Increase Effective Date (without regard
to the effect of any borrowings made on such Commitment Increase Effective Date immediately after
giving effect to the Commitment Increase occurring on such Commitment Increase Effective Date).



               (h) Each Commitment Increase shall become effective on the corresponding Commitment Increase
Effective Date, and upon such effectiveness (i) the
Administrative Agent shall record in the Register each Additional Lender’s information as
provided in the applicable Notice of Commitment Increase and pursuant to an Administrative
Questionnaire that shall be executed and delivered by each Additional Lender to the Administrative
Agent on or before such Commitment Increase Effective Date, (ii) Schedule 2.1 shall be
amended and restated to set forth all Lenders (including any Additional Lenders) that will be
Lenders hereunder after giving effect to such Commitment Increase, and the Administrative Agent
shall distribute to each Lender (including each Additional Lender) a copy of such amended and
restated Schedule 2.1, and (iii) each Additional Lender identified on the Notice of
Commitment Increase for such Commitment Increase shall be a “Lender” for all purposes under
this Agreement.



               (i) Each Commitment Increase shall be deemed to constitute a representation and warranty by
the Borrower on the applicable Commitment Increase Effective



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Date that (i) the representations and
warranties of the Borrower and the other Loan Parties set forth in this Agreement and in the other
Loan Documents are true and correct in all material respects on and as of such Commitment Increase
Effective Date, except to the extent any such representations and warranties are expressly limited
to an earlier date, in which case, on and as of such Commitment Increase Effective Date, such
representations and warranties shall be true and correct in all material respects as of such
specified earlier date, and (ii) at the time of and immediately after giving effect to such
Commitment Increase, no Default or Event of Default shall have occurred and be continuing.




               (j) If any modification to this Agreement is required for such an increase, it shall be in
form and substance satisfactory to the Administrative Agent. So long as such modifications do not
decrease the interest rates or fees payable in connection with the Loans and LC Disbursements and
are for the purpose of allocating amounts ratably among the Lenders, changing the mechanics and
other necessary changes to this Agreement to make the increase effective, each Lender and each
Issuing Bank hereby irrevocably authorizes the Administrative Agent to enter into such amendments
to this Agreement and the other Loan Documents on its behalf as the Administrative Agent shall deem
appropriate; provided that the interest rates, commitment fees or Letter of Credit Fees
applicable to any Commitments of the Lenders prior to such modification shall not, in any event, be
decreased pursuant to such modification; and provided further that if any such Additional
Lender is entitled to interest rates, commitment fees or Letter of Credit Fees in excess of those
provided for the Commitments outstanding at the time of such modification, such higher interest and
fee rates shall be made to apply to the Commitment of each Lender thereafter.



ARTICLE V

FEES




          5.1. Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the account of
each Lender a commitment fee from the Closing Date to, but not including, the date on which the
Commitment of such Lender terminates, at the Applicable Margin for commitment fees from time to
time in effect, on the daily average amount of such Lender’s Unused Commitment, such commitment fee
to be payable in arrears and due sixty-one (61) days after the end of each Fiscal Quarter and on
the date on which the Commitments terminate, commencing on the first such date to occur after the
date hereof. For purposes of
calculating the commitment fee for any period during which Loans in both US Dollars and
Alternative Currencies were outstanding, the Administrative Agent shall use the US Dollar
Equivalent of such Alternative Currencies calculated on the basis of the Spot Exchange Rate for
such Alternative Currencies, on or as of the most recent Spot Currency Determination Date. All
commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).




          5.2. Arrangement Fee. The Borrower agrees to pay the arrangement fees in the amounts and at
the times separately agreed upon between the Borrower and the Arrangers.




          5.3. Administrative Agency Fees. The Borrower agrees to pay to the Administrative Agent, for
its own account, administrative agency fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.




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          5.4. Letter of Credit Fees.




               (a) Each Applicable Borrower agrees to pay to the Applicable Agent, for distribution to the
Lenders (based upon their respective Pro Rata Percentages in such Letter of Credit), a fee in
respect of each Letter of Credit issued for the account of such Applicable Borrower (the
“Letter of Credit Fee”), which shall accrue from and including the date of issuance of such
Letter of Credit (or, in the case of existing Letters of Credit, the Closing Date) to but excluding
the date on which such Lender ceases to have any LC Exposure with respect to such Letter of Credit
at a rate per annum equal to the Applicable Margin for Letter of Credit Fees on the US Dollar
Equivalent of the Stated Amount of each Letter of Credit.



               (b) Each Applicable Borrower agrees to pay to each Issuing Bank, for its own account, (i) a
fronting fee for each Letter of Credit issued by such Issuing Bank hereunder on behalf of such
Applicable Borrower, which shall accrue at a rate per annum equal to 0.125% during the period from
and including the date of issuance of such Letter of Credit (or, in the case of existing Letters of
Credit, the Closing Date) to but excluding the date on which there ceases to be any LC Exposure
with respect to such Letter of Credit, on the US Dollar Equivalent of such Issuing Bank’s LC
Exposure of the Stated Amount of such Letter of Credit and (ii) such Issuing Bank’s standard fees
with respect to the issuance, amendment, or renewal or extension of any such Letter of Credit or
processing of drawings thereunder.



               (c) Letter of Credit Fees and fronting fees due to the Applicable Agent and an Issuing Bank
pursuant to this Section 5.4 shall be computed on the basis of a year of 360 days and the
actual number of days elapsed, shall be paid in immediately available funds, and, (i) as to standby
Letters of Credit, shall be payable in arrears and due sixty-one (61) days after the end of each
Fiscal Quarter and on the date on which the Commitments terminate, commencing on the first such
date to occur after the date hereof and on the date each such Letter of Credit expires (with any
such fees accruing after the date on which the Commitments terminate to be due within ten (10) days
after demand) and (ii) as to commercial Letters of Credit, shall be paid at issuance.



          5.5. Fees Not Interest; Nonpayment. The fees described in this Agreement represent
compensation for services rendered and to be rendered separate and apart from the
lending of money or the provision of credit and do not constitute compensation for the use,
detention, or forbearance of money, and, subject to Section 13.10, the obligation of the
Borrower to pay each fee described herein shall be in addition to, and not in lieu of, the
obligations of the Borrowers to pay interest, other fees described in this Agreement and expenses
otherwise described in this Agreement. Fees shall be payable when due in US Dollars (except as
otherwise provided herein) and in immediately available funds. All fees payable hereunder,
including, without limitation, the commitment fee referred to in Section 5.1, shall, unless
otherwise agreed, be non-refundable.




ARTICLE VI

APPLICATION OF PROCEEDS




          The proceeds of the Loans and the Letters of Credit shall be used for general corporate
purposes of the Borrower and its Subsidiaries in the ordinary course of business.




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ARTICLE VII

REPRESENTATIONS AND WARRANTIES




          The Borrower makes the following representations and warranties:




          7.1. Organization and Qualification. Each of the Borrower and the Restricted Subsidiaries (a)
is duly organized, validly existing, and in good standing under the laws of its jurisdiction of
organization; (b) has the corporate or equivalent power and authority to own its properties and to
carry on its business as now conducted; and (c) is duly qualified to do business and is in good
standing in every jurisdiction where such qualification is necessary and where failure to be so
qualified would have a Material Adverse Effect.




          7.2. Financial Statements. The Borrower has furnished the Lenders with (a) its audited
consolidated financial statements for the Fiscal Years 2008 and 2009 and (b) its unaudited
consolidated financial statements for the first three Fiscal Quarters of 2010, certified by its
chief financial officer, including balance sheets, income statements and cash flow statements. The
financial statements described above have been prepared in conformity with GAAP, subject to
year-end audit adjustments and the absence of footnotes in the case of the financial statements
referred to in clause (b) above. The financial statements described above fairly present
the consolidated financial condition of the Borrower and its Subsidiaries and the results of their
operations and their cash flow as of the dates and for the periods indicated. As of the Closing
Date, there has been no event since January 30, 2010, which could reasonably be expected to have a
Material Adverse Effect. As of the Closing Date, there exist no material liabilities or
obligations, contingent or otherwise, unusual long-term commitments or unrealized losses of the
Borrower or any Subsidiary which are not fully disclosed in the financial statements described in
the first sentence above.




          7.3. Litigation. As of the Closing Date, there is no action, suit, investigation or proceeding
pending (or, to the best knowledge of the Borrower, threatened) against the Borrower or any
Subsidiary before any court, administrative agency or arbitrator (i) which, except for matters
disclosed in the Borrower’s current filings with the Securities and Exchange Commission
(as available pursuant to the last paragraph of Section 9.1), could reasonably be
expected to have a Material Adverse Effect or (ii) that involves any of the Loan Documents or the
Transactions.




          7.4. Title to Properties. The Borrower and each of the Restricted Subsidiaries has good and
indefeasible title to, or valid leasehold interests in, the material real and personal Properties
purported to be owned or leased by it, free of any Liens except those permitted in Section
10.1.




          7.5. Payment of Taxes. The Borrower and each of its Subsidiaries has filed or caused to be
filed all federal, state, provincial and non-U.S. income and other tax returns which are required
to be filed by or in respect of the Borrower and its Subsidiaries and their assets and has paid or
caused to be paid all taxes as shown on such returns or on any assessment received by it to the
extent that such taxes have become due, except for such taxes and assessments (i) as are not yet
delinquent, (ii) as are being contested in good faith and, if necessary for such contest, by
appropriate proceedings and reserved for in accordance with GAAP in the manner required by




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Section 9.9 or (iii) where failure to do so, individually or in the aggregate, has not and
could not reasonably be expected to result in a Material Adverse Effect.




          7.6. Conflicting Agreements or Restrictions. Neither the execution and delivery by the
Borrower or any Subsidiary of the Loan Documents to which it is a party, or the consummation by it
of the transactions contemplated thereby nor its fulfillment and compliance with the respective
terms, conditions and provisions thereof will (a) result in a breach of, or constitute a default
under, the provisions of (i) any order, writ, injunction or decree of any court which is applicable
to it or (ii) any material contract or agreement to which it is a party or by which it is bound,
(b) result in or require the creation or imposition of any Lien on any material portion of its
Property pursuant to the express provisions of any material agreement to which it is a party, or
(c) result in any violation by it of (i) its charter, bylaws or other organizational documents or
(ii) any Law or regulation of any Governmental Authority applicable to it.




          7.7. Authorization, Validity, Etc. Each of the Borrower and its Subsidiaries has the corporate
or equivalent power and authority to execute and deliver the Loan Documents to which it is a party,
consummate the transactions contemplated therein to be consummated by it and perform its
obligations thereunder, and all such action has been duly authorized by all necessary corporate or
equivalent proceedings on its part. The Loan Documents to which the Borrower or any of its
Subsidiaries is a party have been duly and validly executed and delivered by each of the Borrower
and its Subsidiaries party thereto and constitute valid and legally binding agreements of the
Borrower or such Subsidiary, as the case may be, enforceable in accordance with their respective
terms, except as limited by Debtor Relief Laws.




          7.8. Investment Company Act Not Applicable. Neither the Borrower nor any of its Subsidiaries
is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.




          7.9. Margin Stock. Neither the Borrower nor any of its Subsidiaries is engaged principally or
as one of its important activities in the business of extending credit for the purpose of
purchasing or carrying Margin Stock, and no proceeds of any Loan will be used (a) to purchase or
carry any Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock; (b) to reduce or retire any Debt which was originally incurred to
purchase or carry any such Margin Stock; (c) for any other purpose which might constitute this
transaction a “purpose credit” within the meaning of Regulation T, Regulation U or
Regulation X; or (d) to acquire any security of any Person who is subject to Sections 13 and 14 of
the Exchange Act. After applying the proceeds of each Loan, not more than twenty-five percent (25%)
of the value (as determined in accordance with Regulation U) of the Borrower’s assets is
represented by Margin Stock. Neither the Borrower nor any of its Subsidiaries, nor any Person
acting on behalf of the Borrower or any Subsidiary, has taken or will take any action which might
cause any Loan Document or the Transactions to violate Regulation T, Regulation U or Regulation X
or any other regulation of the Board, as now or hereafter in effect.




          7.10. ERISA; Foreign Benefit and Pension Plans.




               (a) No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably



91









 




expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Pension Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 35) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $25,000,000 the fair market value
of the assets of such Pension Plan.




               (b) All obligations of the Borrower and each of its Subsidiaries under each Canadian Pension
Plan and Canadian Benefit Plan have been performed in accordance with the terms thereof and any
requirement of applicable Law (including, without limitation, the Income Tax Act (Canada) and the
Supplemental Pension Plan Act (Quebec)), except where the failure to so perform would not
reasonably be expected to result in a Material Adverse Effect. No Canadian Pension Plan has any
unfunded liabilities on an actuarial basis which would reasonably be expected to have a Material
Adverse Effect.



               (c) Each Foreign Pension Plan has been maintained in substantial compliance with its terms and
in substantial compliance with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing with applicable
regulatory authorities. All contributions required to be made with respect to a Foreign Pension
Plan have been timely made. Neither the Borrower nor any of its Subsidiaries has incurred any
material obligation in connection with the termination of or withdrawal from any Foreign Pension
Plan. The present value of the accrued benefit liabilities (whether or not vested) under each
Foreign Pension Plan determined as of the end of the most recently ended Fiscal Year prior to the
Closing Date on the basis of actuarial assumptions, each of which is reasonable, did not exceed by
more than the Alternative Currency Equivalents of $25,000,000 the current value of the assets of
such Foreign Pension Plan allocable to such benefit liabilities.



          7.11. Full Disclosure. All information heretofore or contemporaneously furnished by or on
behalf of any Borrower or any Subsidiary in writing to any Agent, any Lender or any Issuing Bank
for purposes of or in connection with this Agreement or any transaction contemplated hereby
(including, without limitation, the Information Memorandum) is, and all other such information
hereafter furnished by or on behalf of the Borrower or any Subsidiary in
writing to the Administrative Agent or any Lender will be, (a) true and accurate in all
material respects on the date as of which such information is dated or certified and (b) when taken
as a whole with all such written information provided to the Administrative Agent and the Lenders,
not incomplete by omitting to state any material fact necessary to make such information not
misleading in light of the circumstances under which such information was provided;
provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time. There is no fact known to any Borrower or any Subsidiary that is reasonably
likely to have a Material Adverse Effect, which has not been disclosed herein or in such other
written documents, information or certificates furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby.




          7.12. Permits and Licenses. All material permits, licenses and other Governmental Approvals
necessary for the Borrower and the Restricted Subsidiaries to carry on their respective businesses
have been obtained and are in full force and effect, and neither the




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Borrower nor any Restricted
Subsidiary is in material breach of the foregoing. Each of the Borrower and the Restricted
Subsidiaries owns, or possesses adequate licenses or other valid rights to use, all trademarks,
trade names, trade dress, trade secrets, domain names, service marks, copyrights, patents and
applications therefor necessary and material for the conduct of its business as currently
conducted.




          7.13. Capital Structure. As of the Closing Date, the Borrower owns the percentage of all
classes of Equity Interests of each Subsidiary, and the owner of record of each Subsidiary as of
the date hereof is as set forth in Section 7.13 of the Disclosure Letter. Except for the
Subsidiaries described in Section 7.13 of the Disclosure Letter or as otherwise notified to the
Administrative Agent in writing pursuant to Section 9.1(m), the Borrower has no other
Subsidiaries as of the Closing Date. As of the Closing Date, the Borrower has no partnership, joint
venture or other Equity Interests in any other Person except as set forth in Section 7.13 of the
Disclosure Letter. As of the Closing Date, all of the issued and outstanding shares of Equity
Interest of each of the Borrower’s Subsidiaries are fully paid and nonassessable, are owned of
record by the Person designated for such entity in Section 7.13 of the Disclosure Letter, and,
except for Liens created by the Pledge Agreement, all of the issued and outstanding shares of
Equity Interest of each Subsidiary are free and clear of any Lien. As of the Closing Date, (i) each
Material Restricted Subsidiary is identified as such in Section 7.13 of the Disclosure Letter and
(ii) each Guarantor and each Non-Guaranteeing Restricted Subsidiary is identified as such in
Section 7.13 of the Disclosure Letter. Except as set forth in Section 7.13 of the Disclosure
Letter, there are no preemptive rights, offers, options, rights, agreements or commitments of any
kind (contingent or otherwise) relating to the issuance, conversion, registration, voting, sale, or
transfer of any Equity Interests or other securities of any Material Domestic Subsidiary or any
First-Tier Foreign Subsidiary or obligating any Material Domestic Subsidiary or any First-Tier
Foreign Subsidiary to purchase or redeem any such Equity Interests or other securities pursuant to
the organizational documents of any such Person or any agreement or other instrument to which such
Person is a party or by which it is bound.




          7.14. Insurance. The Borrower and its Restricted Subsidiaries maintain insurance of such types
as is usually carried by corporations of established reputation engaged in the same or similar
business and which are similarly situated (“Similar Businesses”) with
financially sound and reputable insurance companies and associations (or as to workers’
compensation or similar insurance, in an insurance fund or by self-insurance authorized by the
jurisdiction in which its operations are carried on), and in such amounts as such insurance is
usually carried by Similar Businesses; provided that nothing in this Section 7.14
shall preclude the Borrower or any Restricted Subsidiary from being self-insured (to the extent
customary with Similar Businesses). Section 7.14 of the Disclosure Letter sets forth a description
of all insurance maintained by or on behalf of the Borrower and its Restricted Subsidiaries as of
the Closing Date. As of the Closing Date, all premiums in respect of such insurance which are then
due and payable have been paid except for such premiums as are subject to good faith dispute and
the coverage of which remains in force, except as to trivial and insignificant coverage scope.




          7.15. Compliance with Laws. The business and operations of the Borrower and each Restricted
Subsidiary as conducted at all times have been and are in compliance in all respects with all
applicable Laws, except where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.




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          7.16. Environmental Matters. Except for matters that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Restricted Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, or (iii) has received notice of any claim
with respect to any Environmental Liability.




          7.17. No Consent. Except to the extent the same has already been obtained and is in full force
and effect, no authorization or approval or other action by, and no notice to or filing with, any
Person or any Governmental Authority is required to be made or obtained by, or on behalf of, the
Borrower or any Restricted Subsidiary for the due execution, delivery and performance by the
Borrower or such Restricted Subsidiary of this Agreement or any other Loan Document to which it is
a party, the borrowings hereunder or issuance of Letters of Credit, in each case as contemplated
herein, or the effectuation of the transactions contemplated under any Loan Document to which it is
a party.




          7.18. Anti-Terrorism and Anti-Money Laundering. Neither the Borrower nor any of its
Subsidiaries, nor any of their respective officers, directors or controlling owners: (i) is acting,
directly or indirectly, for or on behalf of any person, group, entity, or nation named by any
Presidential Executive Order, or the United States Department of the Treasury Office of Foreign
Assets Control as a terrorist, “Specially Designated National or Blocked Person,” (SDN)
currently available at http://www.ustreas.gov/offices/enforcement/ofac/sdn/, as amended from time
to time, or any other list or pronouncement issued by OFAC, including, but not limited to, OFAC’s
Specially Designated Nationals and Blocked Persons List, as amended from time to time; (ii) is the
subject of an OFAC sanctions program or is otherwise a banned, prohibited, or blocked person,
entity, or nation pursuant to any law, statute, order, rule or regulation that is promulgated,
enforced and/or administered by OFAC (collectively, “Prohibited Persons”); (iii) is
engaging in or facilitating the transaction contemplated herein, directly or indirectly, for or on
behalf of, any Prohibited Person; or (iv) is in violation of any Presidential Executive Order
(including Presidential Executive Order 13224), the USA PATRIOT Act, the Bank Secrecy Act, or the
Money Laundering Control Act of 1986, or any Canadian AML Legislation, all as
amended from time to time, or any law, statute, order, rule or regulation promulgated pursuant
thereto.




ARTICLE VIII

CONDITIONS




          8.1. Closing Date. The obligations of the Lenders to make Loans and of the Issuing Banks to
issue Letters of Credit hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 13.17):




               (a) Approvals. The Borrower and each other Loan Party shall have obtained all
governmental and third party approvals necessary or, in the reasonable judgment of the
Administrative Agent, advisable to be obtained by it in connection with its performance of the
Transactions performed or to be performed by it and the continuing operations of the Borrower and
its Subsidiaries, taken as a whole, and all such approvals shall be in full force and



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effect (in
the case of the same to the extent advisable in connection with the continuing operations of the
Borrower and its Restricted Subsidiaries, in all material respects).




               (b) Compliance with Law. The business and operations of the Borrower and each of its
Restricted Subsidiaries as conducted at all times relevant to the transactions contemplated by this
Agreement to and including the close of business on the Closing Date shall have been and shall be
in compliance (other than any failure to be in compliance that could not reasonably be expected to
result in a Material Adverse Effect) with all applicable Laws. No Law shall prohibit the
transactions contemplated by the Loan Documents. No order, judgment or decree of any Governmental
Authority, and no action, suit, investigation or proceeding pending or, to the knowledge of the
Borrower, threatened in any court or before any arbitrator or Governmental Authority that purports
to affect the Borrower or any Restricted Subsidiary, shall exist that could reasonably be expected
to have a Material Adverse Effect.



               (c) Officer’s Certificate. On the Closing Date, the Administrative Agent shall have
received a certificate dated the Closing Date of a Responsible Officer of the Borrower certifying
that, to the best of such Responsible Officer’s knowledge, (i) since January 30, 2010, there has
not occurred a material adverse change in the business, property, operation or condition (financial
or otherwise) of the Borrower and its Subsidiaries, taken as a whole, (ii) the Borrower and the
Restricted Subsidiaries are, in all material respects, in compliance with all existing financial
obligations, (iii) no Default or Event of Default has occurred and is continuing, and (iv) the
representations and warranties of the Borrower and each other Loan Party contained in the Loan
Documents (other than those representations and warranties limited by their terms to a specific
date, in which case they shall have been true and correct as of such date) are true and correct on
and as of the Closing Date.



               (d) Insurance. On the Closing Date, the Administrative Agent shall have received all
such information as the Administrative Agent shall reasonably request concerning the insurance
maintained by the Borrower and each of its Restricted Subsidiaries.



               (e) Termination of Existing Credit Agreement. Prior to or substantially
contemporaneously with the initial funding of Loans on the Closing Date, all principal, interest,
fees and other amounts due or outstanding under the Existing Credit Agreement (other than any
letters of credit issued thereunder which are outstanding on the Closing Date and continued as
Letters of Credit hereunder) shall have been or shall be paid in full, the commitments thereunder
shall have been or shall be terminated and all guarantees existing in connection therewith shall
have been or shall be discharged and released, and the Administrative Agent shall have received
evidence thereof satisfactory to it.



               (f) Payment of Fees and Expenses. The Administrative Agent shall have received payment
of (i) all fees that are due and payable on or prior to the Closing Date and (ii) to the extent
invoiced and presented in reasonable detail, all other fees and expenses required to be paid by the
Borrower under any commitment letter executed in connection with the credit facilities provided by
this Agreement, any fee letter referred to therein, or hereunder, including the reasonable fees and
expenses of counsel for the Administrative Agent in connection with the preparation, negotiation,
execution and delivery of this Agreement and the other Loan Documents and the closing of the
Transactions.



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               (g) Required Documents and Certificates. The Administrative Agent shall have received
the following, in each case in form, scope and substance satisfactory to the Administrative Agent:




          (i) from the Borrowers, executed counterparts of this Agreement and from each
Lender either (i) an executed counterpart hereof or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy or electronic
transmission of a signed signature page of this Agreement) that such Lender party
has signed a counterpart of this Agreement.




          (ii) the Parent Guaranty Agreement, executed and delivered on behalf of the
Borrower;




          (iii) the Subsidiary Guaranty Agreement, executed and delivered on behalf of
each Material Domestic Subsidiary;




          (iv) the Pledge Agreement, executed and delivered on behalf of the Borrower and
each Restricted Subsidiary that is a Domestic Subsidiary which owns any Equity
Interest in or Debt of any Material Domestic Subsidiary or any Equity Interest in or
Debt of in Moores Retail Group Inc., covering the Pledged Collateral existing as of
the Closing Date, any and all certificates representing the Equity Interests pledged
pursuant to the Pledge Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor thereof,
and any instruments evidencing Debt pledged pursuant to the Pledge Agreement and
endorsed in blank (or accompanied by an executed transfer form in blank) by the
pledgor thereof; (provided that to the extent that such certificates are in
the possession of the Existing Agent, this condition shall be satisfied by receipt
by the Administrative Agent of evidence that the Borrower has irrevocably directed
the Existing Agent to deliver, immediately upon termination of commitments and
repayment of
amounts due under the Existing Credit Agreement, all such certificates to the
Administrative Agent);




          (v) a duly executed promissory note of each Borrower in the form of Exhibit
D-1, D-2, D-3 or D-4, as the case may be, payable to the order of each
Lender that requested a promissory note pursuant to Section 4.1(e) at least
three (3) Business Days before the Closing Date in the amount of such Lender’s
Commitment;




          (vi) a certificate of each Loan Party, dated as of the Closing Date and
executed by its Secretary or Assistant Secretary or Director, as the case may be,
certifying, inter alia, (A) the Articles of Incorporation and Bylaws (or equivalent
organizational documents), as amended and in effect, of such Loan Party; (B) the
resolutions duly adopted by the Board of Directors, members, managers or other
similar authority of such Loan Party authorizing the transactions contemplated by
the Loan Documents to which it is a party; and



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(C) the incumbency and specimen
signatures of the officers or directors, as the case may be, of such Loan Party
executing documents on its behalf;




          (vii) a certificate from the appropriate public official(s) of each
jurisdiction in which a Loan Party is formed or organized as to the continued
existence and good standing of such Loan Party (or, in the case of the UK Borrower,
a certificate of the Registrar at Companies House that the UK Borrower was
incorporated on a certain date and has been in continuous existence since that date
and certain other customary information contained in the UK Borrower’s register);




          (viii) a certificate from the appropriate public official(s) of each
jurisdiction in which a Loan Party (other than the UK Borrower) is authorized and
qualified to do business as to the due qualification and good standing of such Loan
Party, where failure to be so qualified or certified is reasonably likely to have a
Material Adverse Effect;




          (ix) legal opinions, in form, substance and scope satisfactory to the
Administrative Agent, from U.S. and Canadian counsel for, and issued upon the
express instructions of, the Borrower (and, in the case of Canadian counsel, Moores
The Suit People Inc. and Moores Retail Group Inc.);




          (x) a legal opinion, in form, substance and scope satisfactory to the
Administrative Agent, of English counsel for the Administrative Agent;




          (xi) recent lien searches of the records of the central filing authority in the
States of Delaware, Texas and California, the Province of New Brunswick, Canada, and
the appropriate office in the UK, with respect to each Borrower, each Pledgor, each
entity the Equity Interest in which is being pledged, Moores The Suit People Inc.
and Golden Brand Clothing (Canada) Ltd. and performed in each such Person’s
jurisdiction of organization or formation, as the
case may be, which searches shall reveal no liens on any of the assets of the
Loan Parties except for Liens permitted by Section 10.1 or Liens that are
discharged on or prior to the Closing Date pursuant to documentation satisfactory to
the Administrative Agent ;




          (xii) such UCC financing statements, notices of personal property security
interests and other similar documents as shall be necessary to perfect the security
interests of the Administrative Agent in the Pledged Collateral;




          (xiii) the financial statements referred to in Section 7.2 (it being
understood that the financial statements referred to in clauses (a) and
(b) of Section 7.2 shall be deemed to have been received by the
Administrative Agent in form, scope and substance satisfactory to it as a result of
the availability of the Borrower’s filed Annual Reports on Form 10-K for the Fiscal
Years 2008 and 2009 and Quarterly Reports on Form 10-Q for the first three Fiscal
Quarters of



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2010, as the case may be, on the website of the Securities and Exchange
Commission); and




          (xiv) any other documents reasonably requested by the Administrative Agent
prior to the Closing Date.



               (h) Each Lender shall have received all documentation and other information required to be
obtained by such Lender under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA Patriot Act and Canadian AML Legislation, and requested by such
Lender.



          In addition, as of the Closing Date, all legal matters incident to the transactions herein
contemplated shall be satisfactory to the Administrative Agent and the Lenders.




          The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and
such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 13.17) at or prior to 3:00 p.m., Houston Time, on January 31, 2011 (and, in the
event all such conditions are not so satisfied or waived, the Commitments shall terminate at such
time).




          8.2. Effect of Amendment and Restatement. On the Closing Date, all commitments under the
Existing Credit Agreement will be terminated, all loans thereunder will be repaid in full, together
with interest thereon, all letters of credit, if any, issued thereunder will be terminated (or
shall constitute Letters of Credit hereunder), all fees and all other amounts owing pursuant to the
Existing Credit Agreement (including Section 3.5 thereof) and all agreements related
thereto will be repaid in full, and the Borrower shall irrevocably direct the Administrative Agent
to disburse to the Existing Agent out of the proceeds of Loans being made on the Closing Date an
amount sufficient to effect such repayment in full. Thereupon the Existing Credit Agreement shall
be automatically amended and restated in its entirety to read as
set forth in this Agreement, and the Commitment of each Lender party to this Agreement shall
be as set forth on Schedule 2.1. On and after the Closing Date, the rights and obligations
of the parties hereto shall be governed by this Agreement; provided that the rights and
obligations of the parties hereto with respect to the period prior to the Closing Date shall
continue to be governed by the provisions of the Existing Credit Agreement.




          8.3. Conditions to each Loan and Letter of Credit. The obligation of each Lender to make any
Loan and of each Issuing Bank to issue, renew or extend any Letter of Credit (or amend any Letter
of Credit to increase the Stated Amount thereof), is subject to the receipt of the request therefor
and to the following conditions:




               (a) Representations True and No Defaults. (i) Each of the representations and
warranties of the Borrower and the other Loan Parties contained in the Loan Documents (other than
those representations and warranties limited by their terms to a specific date, in which case they
shall have been true and correct as of such date) shall be true and correct on and as of the
particular Borrowing Date or on the date of issuance, renewal, extension or



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amendment of any Letter
of Credit, as the case may be, as though made on and as of such date; and (ii) at the time of and
immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default shall have occurred and be continuing.




               (b) Borrowing Documents. On each Borrowing Date, the Administrative Agent shall have
received a Notice of Borrowing or notice required pursuant to Section 2.4(c) or
2.6(b), as the case may be, in respect of the respective Loans to be made on such Borrowing
Date, delivered in accordance with Section 2.3, 2.4(c) or 2.6(b), as the
case may be.



               (c) Guarantees and Collateral. To the extent required to be delivered on or prior to
such Borrowing Date, the Administrative Agent shall have received all documents required by
Section 9.8.



               (d) Conversion/Continuation Documents. On the date of each conversion or continuation
of a Loan as provided in Section 3.1(b), the Administrative Agent shall have received a
Notice of Rate Change/Continuation, delivered in accordance with Section 3.1.



               (e) Letter of Credit Documents. On the date of the issuance, renewal or extension of
any Letter of Credit (or any amendment which increases the Stated Amount thereof), the
Administrative Agent shall have received a Letter of Credit Request, delivered in accordance with
Section 2.7.



          The request for, and acceptance of, each Loan and each Letter of Credit (or each issuance,
amendment, renewal or extension thereof) by the Applicable Borrower shall constitute a
representation and warranty by the Borrower that the conditions specified in Section 8.3(a)
and (c) have been satisfied.




ARTICLE IX

AFFIRMATIVE COVENANTS




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan shall have been paid in full and all Letters of Credit shall have expired or been
terminated and all LC Disbursements and all interest thereon shall have been reimbursed by the
Borrowers, the Borrower covenants and agrees that it will:




          9.1. Reporting and Notice Requirements. Furnish to the Administrative Agent (with a copy for
each Lender) for delivery to the Lenders:




               (a) Quarterly Financial Statements. As soon as available and in any event within
forty-five (45) days after the end of each Fiscal Quarter (excluding the fourth quarter), a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal
Quarter, consolidated statements of earnings, shareholders’ equity and comprehensive income and
cash flows of the Borrower and its Subsidiaries (i) for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter and (ii) the period commencing
at the end of the previous Fiscal Quarter and ending with the end of such currently



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reported Fiscal
Quarter, setting forth in each case in comparative form corresponding consolidated figures for the
corresponding period in the immediately preceding Fiscal Year, all in reasonable detail and
certified by a Responsible Officer as presenting fairly the consolidated financial position of the
Borrower and its Subsidiaries as of the date indicated and the results of their operations and cash
flows for the period indicated in conformity with GAAP, consistently applied, subject to changes
resulting from year-end audit adjustments, it being understood that footnotes may be omitted and it
being further understood that each Quarterly Report on Form 10-Q of the Borrower filed with the
Securities and Exchange Commission shall satisfy the foregoing requirements.




               (b) Annual Financial Statements. As soon as available and in any event within ninety
(90) days after the end of each Fiscal Year, audited consolidated statements of earnings,
shareholders’ equity and comprehensive income and cash flows of the Borrower and its Subsidiaries
for such Fiscal Year, and an audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such Fiscal Year, setting forth in each case in comparative form
corresponding consolidated figures for the immediately preceding Fiscal Year, all in reasonable
detail and satisfactory in form, substance and scope to the Administrative Agent, together with the
unqualified opinion (that does not express any doubt or concern as to the ability of the Borrower
to continue as a going concern) of Deloitte & Touche LLP or other independent certified public
accountants of recognized national standing selected by the Borrower stating that such financial
statements fairly present in all material respects the consolidated financial position of the
Borrower and its Subsidiaries as of the date indicated and the consolidated results of their
operations and cash flows for the period indicated in conformity with GAAP, consistently applied
(except for such inconsistencies which may be disclosed in such report), and that the audit by such
accountants in connection with such consolidated financial statements has been made in accordance
with generally accepted auditing standards (it being understood that each Annual Report on Form
10-K of the Borrower filed with the Securities and Exchange Commission, to the extent it contains
the information described above, shall satisfy the foregoing requirements).



               (c) Consolidated Statements. In the event that the Borrower or any of its Restricted
Subsidiaries has made an Investment in an Unrestricted Subsidiary and such Investment continues to
be outstanding at the end of any Fiscal Quarter or Fiscal Year, consolidated financial statements
(a balance sheet, statement of earnings, statement of shareholders’ equity and comprehensive income
and statement of cash flows, with the statements of earnings, shareholder’s equity and
comprehensive income and cash flows covering the four Fiscal Quarters then ending) of the Borrower
and Restricted Subsidiaries. The consolidated financial statements referred to in this Section
9.1(c) will be provided within sixty (60) days after the end of each Fiscal Quarter (excluding
the fourth Fiscal Quarter) and within one hundred five (105) days after the end of each Fiscal
Year, as appropriate, but will not be subject to audit and will not include customary footnotes.



               (d) Compliance Certificate. Together with or promptly following the delivery of any
information required by subsections (a) and (b) of this Section 9.1, a
certificate in the form of Exhibit I signed by a Responsible Officer, (i) stating that
there exists no Event of Default or Default, or if any Event of Default or Default exists,
specifying the nature thereof, the period of existence thereof, and what action the Borrower has
taken or proposes to take with



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respect thereto; (ii) setting forth such schedules, computations and
other information as may be required to demonstrate that the Borrower is in compliance with the
covenants set forth in Sections 10.2, 10.3 and 10.10; (iii) setting forth as of
such date the identity of each Material Domestic Subsidiary as of such date; and (iv) stating
whether, during the four Fiscal Quarters ending with the Fiscal Quarter or Fiscal Year, as the case
may be, for which the relevant financial statements were delivered pursuant to subsection
(a) or (b) of this Section 9.1, any change in GAAP or in the application
thereof has occurred that has had a material effect thereon and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such certificate
(including a reconciliation between such financial statements and the information presented in
accordance with Section 9.1(d)(ii)) (it being understood that each Quarterly Report on Form
10-K filed with the Securities and Exchange Commission and each Annual Report on Form 10-K of the
Borrower filed with the Securities and Exchange Commission, to the extent it contains the
information described above, shall satisfy the foregoing requirements).




               (e) Notice of Default. Promptly after any Responsible Officer or the Corporate
Controller of the Borrower knows or has reason to know that any Default or Event of Default has
occurred, a written statement of a Responsible Officer setting forth with respect to the event or
circumstance requiring such notice the nature thereof, the period of existence thereof, and what
action the Borrower has taken or proposes to take with respect thereto.



               (f) Notice of Litigation. Promptly after any Responsible Officer or the Corporate
Controller of the Borrower obtains knowledge of the commencement thereof, notice of any litigation,
legal, administrative or arbitral proceeding, investigation or other action of any nature that
could reasonably be expected to have a Material Adverse Effect (to the extent such notice does not
require a waiver of the attorney-client privilege in respect of such litigation, proceeding or
investigation) and, upon request by the Administrative Agent or any Lender, details regarding such
litigation, proceeding or investigation which are satisfactory to the Administrative Agent or such
Lender.



               (g) Securities Filings. Promptly after the sending or filing thereof, and in any event
within fifteen (15) days after the sending or filing thereof, (i) copies of all reports which the
Borrower sends to any of its security holders; and (ii) copies of all reports (including each
regular and periodic report (excluding registration statements on Form S-8)) and each registration
statement or prospectus which the Borrower or any Subsidiary files with the U.S. Securities and
Exchange Commission or any national domestic or foreign securities exchange, or any other domestic
or foreign Governmental Authority succeeding to any of the functions of the foregoing.



               (h) ERISA Notices, Information and Compliance. Prompt written notice of the occurrence
of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $25,000,000, accompanied by a certificate of a Financial Officer setting forth the
details as to such occurrence and the action, if any, which the Borrower is required or proposes to
take with respect thereto.



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               (i) Notice of Canadian Benefit and Pension Plans. Deliver to the Administrative Agent,
as soon as possible and in any event within ten (10) days after the occurrence of any of the
following, a certificate of the chief financial officer of the Borrower or such Subsidiary, as
applicable, setting forth the details of such occurrence and the action, if any, the Borrower or
such Subsidiary, as applicable, is required or proposes to take:




          (i) the establishment or adoption of any Canadian Pension Plan or Canadian
Benefit Plan by the Borrower or any of its Subsidiaries on or after the Closing
Date;




          (ii) the failure to pay when due any or all amounts that are required to be
paid under the terms of any Canadian Pension Plan; or




          (iii) the institution of any proceeding or notice of any proposal to make an
order in respect of any Canadian Pension Plan by any Governmental Authority.



               (j) Notice of New Subsidiaries. Within forty-five (45) days after the end of each
Fiscal Quarter, a certificate of a Responsible Officer notifying the Administrative Agent of the
formation or acquisition of any Restricted Subsidiaries during such Fiscal Quarter.



               (k) Notice of Material Adverse Effect. Promptly after any Responsible Officer or the
Corporate Controller of the Borrower knows or has reason to know of the occurrence of any event or
circumstance or the failure to occur of any event or circumstance which has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect, a written statement of a
Responsible Officer setting forth the details of such event or circumstance and the action which
the Borrower has taken or proposes to take with respect thereto.



               (l) Applicable Margin Certificate. Together with or promptly following the delivery of
the financial statements required by subsections (a) and (b) of this Section
9.1, a certificate in the form of Exhibit J (an “Applicable Margin
Certificate”) signed by a Responsible Officer of the Borrower setting forth the Leverage Ratio
as of the last day of the
Fiscal Quarter or Fiscal Year, as applicable, covered by such financial statements and the
resultant Applicable Margin.



               (m) Other Information. Such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any Subsidiary as any Lender through the Administrative
Agent may from time to time reasonably request.



          Information required to be delivered pursuant to subsection (a), (b), (c), (g) or
(m) of this Section 9.1 shall be deemed to have been delivered to the extent such
information, or one or more annual or quarterly reports containing such information, shall be
available on the website of the U. S. Securities and Exchange Commission at http://www.sec.gov or
the website of the Borrower at http://www.menswearhouse.com and a confirming notice of such
availability shall have been delivered or caused to be delivered to the Administrative Agent;
provided that such notice may be included in a certificate delivered pursuant to
subsection (d) of this Section 9.1. Information required to be delivered pursuant
to this Section 9.1 may also be




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delivered by electronic communications pursuant to
procedures approved by the Administrative Agent.




          9.2. Corporate Existence. Except as otherwise permitted by Section 10.4, remain, and
cause each Borrower and each Restricted Subsidiary to remain, (i) duly organized, validly existing,
and in good standing under the laws of its jurisdiction of organization, with the power to own its
properties and to carry on its business; and (ii) duly qualified to do business and in good
standing in every jurisdiction where such qualification is necessary and where failure to be so
qualified would have a Material Adverse Effect; provided that the foregoing shall not
prohibit any transaction permitted under Section 10.4 or any merger, consolidation,
amalgamation, liquidation, dissolution or termination of any Subsidiary which is not otherwise
prohibited by the terms of this Agreement; provided further that the Borrower shall not be
required to preserve the legal existence of any Restricted Subsidiary if the Board of Directors of
the Borrower shall determine that the preservation thereof is no longer necessary or desirable in
the conduct of the business of the Borrower and its Subsidiaries, taken as a whole, and that the
loss thereof could not reasonably be expected to result in a Material Adverse Effect (without
regard to clause (b), (c) or (d) of the definition of the term “Material
Adverse Effect,” to the extent that the documents, obligations or Liens referred to in any such
clause relate to such Subsidiary).




          9.3. Books and Records. Maintain, and cause each Restricted Subsidiary to maintain, complete
and accurate books of record and account in accordance with sound accounting practices in which
true, full and correct entries will be made of all its dealings and business affairs.




          9.4. Insurance. Maintain, and cause each Restricted Subsidiary to maintain, insurance of such
types as Similar Businesses maintain, with financially sound and reputable insurance companies and
associations (or as to workers’ compensation or similar insurance, in an insurance fund or by
self-insurance authorized by the jurisdiction in which its operations are carried on), including
public liability insurance, casualty insurance against loss or damage to its Properties, assets and
businesses now owned or hereafter acquired, and business interruption insurance, and in such
amounts as such insurance is usually carried by Similar Businesses.




          9.5. Right of Inspection. In each case subject to the last sentence of this Section
9.5, from time to time during regular business hours upon reasonable notice to the Borrower and
at no cost to the Borrower (unless a Default or Event of Default shall have occurred and be
continuing at such time), permit, and cause each Restricted Subsidiary to permit, any officer, or
employee of, or agent designated by, the Administrative Agent or any Lender to visit and inspect
any of the Properties of the Borrower or any Restricted Subsidiary, examine the Borrower’s or such
Restricted Subsidiary’s books or financial records, take copies and extracts therefrom and discuss
the affairs, business, finances and accounts of the Borrower or such Restricted Subsidiary with the
Borrower’s or such Restricted Subsidiary’s officers or certified public accountants (subject to the
agreement of such accountants), all as often as the Administrative Agent or any Lender may
reasonably request. At the request of the Administrative Agent, the Borrower will use its
commercially reasonable best efforts to assure that its certified public accountants agree to meet
with the Lenders to discuss such matters related to the affairs, finances and accounts of the
Borrower or any of its Restricted Subsidiaries




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as they may request; provided that a
representative of the Borrower shall be present during any such discussions with such certified
public accountants. Each of the foregoing inspections shall be made subject to compliance with
applicable safety standards and the same conditions applicable to the Borrower or any Restricted
Subsidiary in respect of property of the Borrower or such Restricted Subsidiary on the premises of
Persons other than the Borrower or such Restricted Subsidiary, and all information, books and
records furnished or requested to be furnished, or of which copies, photocopies or photographs are
made or requested to be made, all information to be investigated or verified and all discussions
conducted with any officer, employee or representative of the Borrower or any Restricted Subsidiary
shall be subject to (i) any applicable attorney-client privilege exceptions which the Borrower or
such Restricted Subsidiary determines is reasonably necessary and (ii) compliance with conditions
to disclosures under non-disclosure agreements between the Borrower or any Restricted Subsidiary
and Persons other than the Borrower or any Subsidiary and the express undertaking of each Person
acting at the direction of or on behalf of any Lender or the Administrative Agent to be bound by
the confidentiality provisions contained in Section 13.19.




          9.6. Maintenance of Property. At all times maintain, preserve, protect and keep, and cause
each Restricted Subsidiary to at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its Property in good repair, working order and condition
(ordinary wear and tear excepted) and, from time to time, make, or cause to be made, all repairs,
renewals, replacements, extensions, additions, betterments and improvements to its Property as are
appropriate, so that (a) the Borrower and the Restricted Subsidiaries, taken as a whole, maintain
their business as a Permitted Business and (b) the business carried on in connection therewith may
be conducted properly and efficiently in all material respects at all times.




          9.7. Guarantees of Certain Restricted Subsidiaries; Pledge Agreements.




               (a) Immediately upon the designation or deemed designation of any Material Restricted
Subsidiary pursuant to the definition thereof (and until designated an Unrestricted Subsidiary in
accordance with the terms hereof), cause such Material Restricted Subsidiary to become a party to
the Subsidiary Guaranty Agreement by executing and delivering to the Administrative Agent a
supplement thereto (a form of which is set forth as Exhibit A to the
Subsidiary Guaranty Agreement) (a “Guaranty Agreement Supplement”), whereupon such
Material Restricted Subsidiary shall become a “Guarantor” as defined in the Subsidiary
Guaranty Agreement, together with (i) written evidence reasonably satisfactory to the
Administrative Agent that such Material Restricted Subsidiary has taken all organizational and
other action and obtained all consents necessary to duly approve and authorize its execution and
delivery of a Guaranty Agreement Supplement and the performance of its obligations under the
Subsidiary Guaranty Agreement, (ii) any other documents that it is required hereunder or under any
other Loan Document to execute and (iii) if requested by the Administrative Agent, an opinion of
counsel to such Material Restricted Subsidiary in form, scope and substance reasonably acceptable
to the Administrative Agent; provided that, any Material Restricted Subsidiary that is a
Foreign Subsidiary shall not be required to execute and deliver a Guaranty Agreement Supplement
(any such Material Restricted Subsidiary herein referred to as a “Non-Guaranteeing Restricted
Subsidiary”).



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               (b) Immediately upon the designation or deemed designation of any Material Restricted
Subsidiary pursuant to the definition thereof (and until designated an Unrestricted Subsidiary in
accordance with the terms hereof), the Borrower and any Restricted Subsidiary that is a Domestic
Subsidiary which owns any Equity Interest in or Debt of such Material Restricted Subsidiary shall,
to the extent not already a party thereto, become a party to the Pledge Agreement by executing and
delivering to the Administrative Agent a supplement thereto (a form of which is set forth as Annex
1 to the Pledge Agreement) (a “Pledge Agreement Supplement”), whereupon the Borrower or
such Restricted Subsidiary shall become a “Pledgor” as defined in the Pledge Agreement.
Pursuant to such Pledge Agreement Supplement, such Equity Interest and Debt shall be pledged as a
lien to secure the Obligations, which shall constitute a first priority lien (except that if such
Material Restricted Subsidiary is a Foreign Subsidiary, such Equity Interest of such Material
Restricted Subsidiary shall only be pledged if such Material Restricted Subsidiary is a First-Tier
Foreign Subsidiary, and in such case, such Equity Interest to be pledged shall be limited to 65% of
the outstanding Equity Interest of such Material Restricted Subsidiary). Together with the
foregoing, each such Restricted Subsidiary shall deliver to the Administrative Agent (i) written
evidence reasonably satisfactory to the Administrative Agent that such Restricted Subsidiary has
taken all corporate or equivalent action and obtained all consents necessary to duly approve and
authorize its execution and delivery of a Pledge Agreement Supplement and the performance of its
obligations under the Pledge Agreement, (ii) if such Equity Interests are evidenced by a
certificate, all such certificates accompanied by stock or unit (or other similar) powers executed
in blank, (iii) any other documents which it is required hereunder or under any other Loan Document
to execute and (iv) if requested by the Administrative Agent, an opinion of counsel to such
Subsidiary in form, scope and substance reasonably acceptable to the Administrative Agent.



               (c) Notwithstanding the foregoing, (i) no Lien shall be taken pursuant to Section
9.7(b) in any assets as to which the Administrative Agent shall determine in its reasonable
discretion that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or
other tax, or similar item) is excessive in relation to the benefit of it to the Lenders of the
security afforded thereby.



               (d) It is agreed and understood that the agreement of the Borrower under this Section
9.7 to cause any such Material Restricted Subsidiary to become a party to the
Guaranty Agreement and to cause the Equity Interest and Debt of such Material Restricted
Subsidiary to be pledged as security for the Obligations is a condition precedent to the making of
the Loans and the issuance of Letters of Credit pursuant to this Agreement, and that the entry into
this Agreement by the Lenders constitutes good and adequate consideration therefor.



          9.8. Patents, Trademarks and Licenses. Maintain, and cause each Restricted Subsidiary to
maintain, all franchises, licenses, permits, patents, copyrights, trademarks, service marks, trade
names, trade dress, domain names, trade secrets, and other general intangibles and intellectual
property owned or licensed by any of them, and all other Governmental Approvals necessary to
conduct its business, except where the failure to so maintain is not reasonably likely to have a
Material Adverse Effect.




          9.9. Taxes; Obligations. Pay, and cause each Subsidiary to pay, before the same shall become
delinquent or in default, its obligations, including tax liabilities, that, if not




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paid, could
result in a Material Adverse Effect, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings and (b) the Borrower or such Subsidiary has set
aside on its books adequate reserves with respect thereto (including any potential penalties and
interest) in accordance with GAAP.




          9.10. Compliance with Federal Reserve Regulations. No proceeds of the Loans and no Letter of
Credit shall be used, in whole or in part, by any Borrower or any other Loan Party, directly or
indirectly, to purchase or carry, or to reduce or retire or refinance any credit incurred to
purchase or carry, any “margin security” or “margin stock,” or to extend credit to
others for the purpose of purchasing or carrying any “margin security” or “margin
stock.” No Borrower shall, directly or indirectly, otherwise take or permit to be taken any
action which would result in the Loans, the Letters of Credit or the carrying out of any of the
other transactions contemplated by this Agreement being violative of Regulation T, U or X of the
Board or any other regulation of the Board. If requested by the Administrative Agent, the Borrower
shall complete and sign Part I of a copy of the Federal Reserve Form U-1 referred to in Regulation
U of the Board and deliver such copy to each Lender.




          9.11. Pensions. The Borrower shall furnish prompt written notice to the Administrative Agent
of its receipt of a Financial Support Direction or a Contribution Notice from the Pensions
Regulator which could reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding the US Dollar Equivalent of $25,000,000.




ARTICLE X

NEGATIVE COVENANTS




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan shall have been paid in full and all Letters of Credit shall have expired or been
terminated and all LC Disbursements and all interest thereon shall have been reimbursed by the
Borrowers, the Borrower covenants and agrees that:




          10.1. Liens. The Borrower shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or permit to exist any Lien (including
the charge upon assets purchased under a conditional sales agreement, purchase money mortgage,
security agreement or title retention agreement, other than a customary reservation or retention of
title under a supply agreement entered into in the ordinary course of business) upon any of its
Properties, whether now owned or hereafter acquired, or assign or otherwise convey any right to
receive income, other than:




               (a) Permitted Liens;



               (b) Liens existing on the Closing Date and described in Section 10.1 of the Disclosure
Letter and Liens extending the duration of any such existing Lien; provided that the
principal amount secured by such Lien is not increased and the extended Lien does not cover any
Property of the Borrower or any Restricted Subsidiary which is not covered by the provisions of the
instruments, as in effect on the Closing Date, providing for the existing Lien extended thereby;



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               (c) Liens on the related leased assets securing only the Debt permitted by clause (i)
of Section 10.2(c) which is Permitted Lien Debt, provided that such Lien shall not
apply to any other property or asset of the Borrower or any Restricted Subsidiary;



               (d) Liens created by the Pledge Agreement;



               (e) any Lien existing on any Property prior to the acquisition thereof by the Borrower or any
Restricted Subsidiary or existing on any Property of any Person that becomes a Restricted
Subsidiary after the date hereof prior to the time such Person becomes a Restricted Subsidiary
(provided that (i) such Lien secures only Debt permitted by clause (iii) of
Section 10.2(c) which is Permitted Lien Debt, (ii) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming a Restricted
Subsidiary, as the case may be, (iii) such Lien shall not apply to any other Property or asset of
the Borrower or any Restricted Subsidiary, (iv) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary,
as the case may be, and (v) no Default or Event of Default exists or would result therefrom) and
Liens extending the duration of any such existing Lien; provided that the principal amount
secured by such Lien is not increased and the extended Lien does not cover any Property of the
Borrower or any Restricted Subsidiary which is not covered by the provisions of the instruments, as
in effect on the date of acquisition of such Property or the date on which the owner of such
Property becomes a Restricted Subsidiary, providing for the existing Lien extended thereby;



               (f) Liens on fixed or capital assets acquired, constructed, developed or improved by the
Borrower or any Restricted Subsidiary (provided that (i) such Liens secure only Debt
permitted by clause (ii) of Section 10.2(c) which is Permitted Lien Debt, (ii) such
Liens and the Debt secured thereby are incurred prior to or within 180 days after such acquisition
or the commercial operations following completion of such construction, development or improvement,
whichever occurs latest, (iii) the Debt secured thereby does not exceed the cost of acquiring,
constructing, developing or improving such fixed or capital assets and (iv) such Liens shall not
apply to any other Property or asset of the Borrower or any Restricted Subsidiary) and Liens
extending the duration of any such existing Lien; provided that the principal amount
secured by such Lien is not increased above that existing at the time of such extension and the
extended
Lien does not cover any Property of the Borrower or any Restricted Subsidiary which is not
covered by the provisions of the instruments, as in effect on the date of acquisition or the
commercial operations following completion of such construction, development or improvement,
whichever occurs latest, providing for the existing Lien extended thereby;



               (g) Liens on the Houston Distribution Center; provided that such Liens secure only
Debt permitted by Section 10.2(d); and



               (h) Liens securing Debt permitted by Section 10.2(e).



          10.2. Debt. The Borrower will not create, incur, assume or suffer to exist, and will not
permit any Restricted Subsidiary to create, incur, assume or suffer to exist, any Debt, except as
set forth below:




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               (a) Debt of the Borrower and the other Loan Parties to the Lenders, the Administrative Agent
and the Issuing Banks evidenced by or arising under any Loan Document;



               (b) unsecured Debt of the Borrower or any Restricted Subsidiary other than obligations under
Hedge Agreements;



               (c) (i) Capitalized Lease Obligations of the Borrower or any Restricted Subsidiary, (ii) Debt
of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction,
development or improvement of any fixed or capital assets (excluding Capital Lease Obligations and
Debt of the type permitted by clause (iii) of this Section 10.2(c)) or incurred to
extend, refinance, renew, replace, defease or refund any such assumed Debt, and extensions,
renewals and replacements of any such Debt that do not increase the outstanding principal amount
thereof, and (iii) Debt assumed (including by operation of law) in connection with an acquisition
of a Person or Property, or both, by any means, which is not prohibited by Section 10.9 or
incurred to extend, refinance, renew, replace, defease or refund any such assumed Debt, and
extensions, renewals and replacements of any such Debt that do not increase the outstanding
principal amount thereof (provided that such Debt existed prior to such acquisition and is
not created in contemplation of or in connection with such acquisition);



               (d) Debt of the Borrower or any Restricted Subsidiary secured by Liens on the Houston
Distribution Center; provided that the aggregate principal amount of Debt permitted by this
subsection (d) shall not exceed $45,000,000 at any time outstanding;



               (e) Debt not otherwise permitted under this Section 10.2 of the Borrower or any
Restricted Subsidiary; provided that the aggregate principal amount of Debt permitted by
this subsection (e) shall not exceed the US Dollar Equivalent of $10,000,000 at any time
outstanding; and



               (f) obligations under Hedge Agreements of the Borrower or any Restricted Subsidiary that are
incurred for the purpose of fixing or hedging interest rate or currency risk with respect to any
fixed or floating rate Debt that is permitted by this Agreement to be outstanding or any receivable
or liability the payment of which is determined by reference to a foreign currency;
provided that the notional principal amount of any such obligation does
not exceed the principal amount of the Debt or any receivable or liability to which such
obligation relates; provided further that such obligations are entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary is
exposed in the conduct of its business or the management of its liabilities;


provided that, prior to and immediately after incurring any of the foregoing Debt, no
Default or Event of Default shall have occurred and be continuing or would exist.




          For purposes of this Section 10.2, any Debt (1) which is extended, renewed or replaced
shall be deemed to have been incurred when extended, renewed or replaced, (2) of a Person (other
than the Borrower or a Restricted Subsidiary) when it becomes, or is merged into, or is
consolidated with, a Restricted Subsidiary or the Borrower shall be deemed to have been incurred at
such time, and (3) which is Debt of the Borrower or a Restricted Subsidiary




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consisting of a
reimbursement obligation in respect of a letter of credit or similar instrument shall be deemed to
be incurred when such letter of credit or similar instrument is issued.




          10.3. Restricted Payments. The Borrower will not, directly or indirectly, and will not permit
any Restricted Subsidiary to, directly or indirectly, declare, pay or make any dividend or other
distribution of Property, cash, rights, obligations or securities, or make any sinking fund
payment, on account of any class of Equity Interest in the Borrower or any Restricted Subsidiary,
or purchase, redeem, retire or otherwise acquire for value (or permit any Restricted Subsidiary to
do so) any shares (or units) of any class of Equity Interest of the Borrower or any Restricted
Subsidiary, now or hereafter issued, outstanding or created (all of the foregoing being herein
collectively referred to as “Restricted Payments”); provided that the Borrower and
any Restricted Subsidiary may make any Restricted Payment if, immediately before and immediately
after giving effect to such Restricted Payment, (a) no Default or Event of Default shall exist; and
(b) the sum of (i) the Cash Equivalents of the Borrower and the Restricted Subsidiaries and (ii)
the Unused Commitments is at least $100,000,000.




          10.4. Mergers; Consolidations; Sale or Other Dispositions of All or Substantially All Assets.
The Borrower will not, and, so long as a Subsidiary Borrower has any unpaid Loan or reimbursement
obligation (contingent or otherwise) under a Letter of Credit issued for its account, or any right
to borrow Borrowings or obtain the issuance of Letters of Credit hereunder, such Subsidiary
Borrower will not, merge, amalgamate or consolidate with or into any other Person, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a series of related
transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to
any other Person; provided that any Borrower may merge, amalgamate or consolidate with or
into any Person if (i) such Borrower shall be the surviving entity and (ii) immediately prior to
and immediately after giving effect thereto, no Default or Event of Default has occurred or would
exist; provided further, upon compliance with the foregoing, the non-surviving entity may
be dissolved or liquidated, as applicable.




          10.5. Investments, Loans and Advances. The Borrower will not, and will not permit any
Restricted Subsidiary to, (a) (i) make, incur, or permit to remain outstanding any Investment in,
(ii) endorse, or otherwise be or become contingently liable, directly or indirectly, for the
payment of money or the obligations, stock or dividends of, (iii) own, purchase or acquire any
Equity Interest in, or obligations or evidences of indebtedness of (including any option,
warrant or other right to acquire any of the foregoing), or (iv) make or permit to remain
outstanding any capital contribution to, any Unrestricted Subsidiary, or (b) otherwise make, incur,
create, assume or permit to remain outstanding any Investment in any Unrestricted Subsidiary,
excluding, in any event, the contingent liability of a general partner for the obligations of its
partnership arising under law due to the nature of its general partnership interest (collectively,
“Restricted Investments”), except that:




               (a) the Borrower and the Restricted Subsidiaries may make or permit to remain outstanding
Restricted Investments to the extent within the restrictions of, and permitted by, Section
10.4; and



               (b) the Borrower and the Restricted Subsidiaries may make or permit to remain outstanding
Restricted Investments in Unrestricted Subsidiaries; provided that all such



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Restricted
Investments of the Borrower and the Restricted Subsidiaries made after the Closing Date shall not
exceed the US Dollar Equivalent of $100,000,000 in the aggregate; provided further that,
immediately prior to and immediately after making any such Restricted Investment, no Default or
Event of Default has occurred and is continuing or would exist.




          10.6. Use of Proceeds. No Borrower will use, or permit the use of, all or any portion of any
Loan for any purpose prohibited by Section 7.9 or for any other purpose not described in
Article VI.




          10.7. Transactions with Affiliates. The Borrower will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, engage in any transaction with any Affiliate or any
shareholder, officer, director, member or manager of the Borrower or of any Affiliate, including
the purchase, sale or exchange of assets or the rendering of any service, except in the ordinary
course of business and pursuant to the reasonable requirements of the business of the Borrower or
such Restricted Subsidiary, as the case may be, and upon fair and reasonable terms that are
substantially as favorable to the Borrower or such Restricted Subsidiary, as the case may be, as
those which might be obtained in an arm’s-length transaction at the time from wholly independent
and unrelated sources; provided that the foregoing shall not apply to (i) payment by the
Borrower of premiums on life insurance policies naming David Edwab as the insured, (ii) that
certain License Agreement dated as of November 5, 2010, by and between the George Zimmer 1988
Living Trust and the Borrower, or (iii) transactions exclusively among the Borrower and Restricted
Subsidiaries.




          10.8. Nature of Business. The Borrower will not, and will not permit any Restricted Subsidiary
to, make any material change in its Permitted Business, taken as a whole.




          10.9. Acquisitions. The Borrower will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, acquire by purchase or merger or amalgamation (in one transaction or a
series of transactions) (a) 90% or more of the Equity Interest of or in any other Person or (b) the
Properties of any Person that constitute all or substantially all of the assets of such Person or
of any division or other business unit of such Person (the events described in subsections
(a) and (b) of this Section 10.9 herein referred to as “Acquisitions”),
except that the Borrower or any Restricted Subsidiary may make any such Acquisition if:





          (i) immediately prior to and immediately after making such Acquisition, no
Default or Event of Default has occurred and is continuing or would exist, and, if
requested by the Administrative Agent, the Borrower shall deliver to the
Administrative Agent an Officer’s Certificate setting forth calculations evidencing
pro forma compliance with Section 10.10;




          (ii) in the case of the purchase of the Equity Interest of or in any other
Person, such Person shall be initially designated a Restricted Subsidiary upon
consummation of such purchase;




          (iii) to the extent applicable, the Borrower shall, and shall cause each
Restricted Subsidiary to, comply with Section 9.7 in relation thereto;




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          (iv) the assets and/or business of such Person so acquired, as the case
may be, shall be substantially related to the manufacturing, retailing, wholesaling,
renting, processing, servicing, maintaining, merchandising, cleaning or distributing
of clothing, apparel and accessories and related goods and services (each, a
“Permitted Business”); and




          (v) the Acquisition complies in all material respects with applicable Laws.



          10.10. Financial Covenants.




               (a) Leverage Ratio. The Borrower shall not permit the Leverage Ratio as of the last
day of any Fiscal Quarter to exceed 3.50 to 1.00.



               (b) Fixed Charge Coverage Ratio. The Borrower shall not permit its Fixed Charge
Coverage Ratio as of the last day of any Fiscal Quarter through and including the end of Fiscal
Year 2012 to be less than 1.65 to 1.00, and shall not permit its Fixed Charge Coverage Ratio as of
the last day of any Fiscal Quarter thereafter to be less than 1.75 to 1.00.



               (c) Capital Expenditures. The Borrower will not permit the consolidated Capital
Expenditures of the Borrower and the Restricted Subsidiaries in any Fiscal Year to exceed (a) for
Fiscal Year 2011, the sum of (i) 50% of EBITDA for the Fiscal Year 2010 plus (ii) $38,000,000, and
(b) for each subsequent Fiscal Year, the sum of (i) 50% of EBITDA for the previous Fiscal Year plus
(ii) an amount equal to any consolidated Capital Expenditures permitted but not made in the
previous Fiscal Year. No amounts permitted by clause (ii) may be carried over beyond the
Fiscal Year next following the Fiscal Year in which they were originally permitted.



               (d) Consolidated Net Worth Attributable to Foreign Assets. The Borrower will not
permit the percentage of its Consolidated Net Worth attributable to operating assets (exclusive of
Inventory in the process of, or held for, manufacture) located outside the United States, Canada
and the UK to be greater than ten percent (10%) of its Consolidated Net Worth as of the last day of
any Fiscal Quarter.



          10.11. Regulations T, U and X. The Borrower will not take or permit, and will not permit any
Subsidiary to take or permit, any action which would involve the Administrative Agent, any Issuing
Bank or any Lender in a violation of Regulation T, Regulation U, Regulation X or any other
regulation of the Board of Governors of the Federal Reserve System or a violation of the Exchange
Act, in each case as now or hereafter in effect.




          10.12. Status. The Borrower will not, and will not permit any Subsidiary to, be or become an
“investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.




          10.13. Compliance with Laws. The Borrower will not fail to comply, nor permit any other Loan
Party or any Restricted Subsidiary to fail to comply, with any and all Laws applicable to it or its
Properties or the conduct of their respective businesses, except where the






111









 







failure so to comply, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.




          10.14. Unrestricted Subsidiaries.




               (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create or
otherwise designate any Subsidiary as an Unrestricted Subsidiary or as a Restricted Subsidiary
unless the requirements set forth in the definition of Unrestricted Subsidiary or Restricted
Subsidiary, as the case may be, are complied with respect to such Subsidiary.



               (b) The Borrower will not, and will not permit any Restricted Subsidiary to, permit any
Unrestricted Subsidiary to fail to comply at any time with the requirements set forth in the
definition of “Unrestricted Subsidiary”.



          10.15. Restrictive Agreements. Except as otherwise permitted by this Agreement or any other
Loan Document, the Borrower will not, and will not permit any Subsidiary to, enter into, create,
assume or otherwise allow to exist any agreement or restriction that (a) prohibits or restricts the
creation or assumption of any Lien upon any Property of the Borrower or any Restricted Subsidiary
to secure the Obligations or any part thereof, (b) prohibits or restricts the Borrower or any
Restricted Subsidiary from complying with Section 9.8, (c) requires any obligation of the
Borrower or any Restricted Subsidiary in favor of any other Person, including any Lender, to be
secured by any Property of the Borrower or any Restricted Subsidiary if any obligation of the
Borrower or such Restricted Subsidiary to the Lenders is secured, (d) prohibits or restricts the
Borrower or any Restricted Subsidiary from amending the Loan Documents, or (e) prohibits or
restricts the ability of (i) any Restricted Subsidiary (A) to pay dividends or make other
distributions or contributions or advances to the Borrower or any other Restricted Subsidiary, (B)
to repay loans and other indebtedness owing by it to the Borrower or any other Restricted
Subsidiary, or (C) to transfer any of its assets to the Borrower or any other Restricted
Subsidiary, or (ii) the Borrower or any Restricted Subsidiary to make any payments required by the
Loan Documents or otherwise comply with any Loan Document; provided that the foregoing
restrictions shall not apply to:





          (1) limitations or restrictions imposed by law,




          (2) limitations or restrictions existing under or by reason of any agreement for the
sale or other disposition of all or substantially all of the Equity Interests in or all or
substantially all of the assets of a Subsidiary, which agreement restricts distributions or
dividends by such Subsidiary pending such sale or other disposition,




          (3) limitations or restrictions existing under or by reason of contracts and agreements
outstanding on the date hereof,




          (4) limitations or restrictions existing under or by reason of any agreement or
instrument governing Equity Interests in or Debt of a Person acquired by the Borrower or any
of its consolidated Subsidiaries as in effect at the time of such acquisition, which
restriction or limitation (x) is not applicable to any Person, or the properties or assets
of any Person, other than the Person, or the properties or assets of



112









 






such Person, so acquired and (y) is not incurred in connection with, or in
contemplation of, such acquisition (it being understood that any such limitation or
restriction may be continued, but not made more restrictive, in any agreement refinancing or
replacing the agreement containing such original limitation or restriction),




          (5) limitations or restrictions existing under or by reason of agreements governing
Debt of any Non-Guaranteeing Restricted Subsidiary permitted by Section 10.2 (other
than intercompany Debt), which limitations or restrictions are not applicable to any Person,
or the properties or assets of any Person, other than any such Non-Guaranteeing Restricted
Subsidiary and its subsidiaries,




          (6) limitations or restrictions existing under or by reason of provisions with respect
to the disposition or distribution of assets or property in joint venture agreements and
other similar agreements entered into in the ordinary course of business, so long as such
limitations or restrictions are not applicable to any Person (or its property or assets)
other than such joint venture or a subsidiary thereof, and




          (7) limitations or restrictions existing under or by reason of (x) a lease, license or
similar contract which restricts in a customary manner the subletting, assignment
encumbrance or transfer of any property or asset that is subject thereto or the assignment,
encumbrance or transfer of any such lease, license or similar contract, (y) mortgages, deeds
of trust, pledges or other security instruments creating Liens permitted under this
Agreement to secure Debt permitted under this Agreement which restrict the transfer of the
property subject to such mortgages, deeds of trust, pledges or other security instruments or
(z) customary provisions restricting disposition of, or encumbrances on, real property
interests set forth in any reciprocal easements.



          10.16. Canadian Benefit and Pension Plans. Neither the Borrower nor any Subsidiary shall (a)
fail to perform any material obligations required to be performed in connection with any Canadian
Pension Plan or Canadian Benefit Plan in accordance with the terms of such plan and any requirement
of applicable Law, or (b) fail to use its best efforts to ensure that each Canadian Pension Plan is
registered and retains its registered status (if required under any requirement of applicable Law)
under, and is administered in a timely manner in all material respects in accordance with, the
applicable pension plan text, funding agreement, the Income Tax Act (Canada) and any other
requirement of applicable Law.




          10.17. OFAC. Neither the Borrower nor any Subsidiary shall (1) be or become subject at any
time to any law, regulation, or publicly available list of any government agency (including any
OFAC list) that prohibits or materially limits any Agent, any Issuing Bank or any Lender from
making any advance or extension of credit to such Person or from otherwise conducting business with
such Person, or (2) fail to provide documentary and other evidence of such Person’s identity, in
each case, as may be requested by any Agent at any time to enable such Agent to comply with any
applicable law or regulation related to such verification of identity of customers of financial
institutions and applicable to an Agent, an Issuing Bank or a Lender, as the case may be,
including, if applicable, § 326 of the USA Patriot Act of 2001, 31 U.S.C. § 5318.







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          10.18. Environmental Matters. The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to,




               (a) cause a Release of any Hazardous Material in violation of any Environmental Law or so as
to create a risk of harm to public or occupant health or safety or the environment; or



               (b) permit to exist any Release of any Hazardous Material on any real property owned or leased
by the Borrower or any of its Restricted Subsidiaries in violation of any Environmental Law or so
as to create a risk of harm to public or occupant health or safety or to the environment; or



               (c) take any other action (or fail to take any action) in violation of any Environmental Law
or take any action (or fail to take any action) so as to create a material risk of harm to public
or occupant safety or health or to the environment,


in each case if to do so or fail to do so could reasonably be expected to have a Material Adverse
Effect.




ARTICLE XI

EVENTS OF DEFAULT; REMEDIES




          11.1. Events of Default. If any of the following events shall occur and be continuing, the
Administrative Agent shall at the request of, or may with the consent of, the Majority Lenders, (i)
by notice to the Borrower, declare the Commitment of each Lender and the several obligations of the
Lenders to make Loans hereunder and participate in Letters of Credit (and of the Issuing Banks to
issue Letters of Credit) to be terminated, whereupon the same shall forthwith terminate, (ii)
declare the entire unpaid principal balance or any portion of the principal balance of all or any
of the Loans and all interest accrued and unpaid thereon, any and all accrued and unpaid fees, and
all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the Loans, all such interest and all such other amounts shall become and be
forthwith due and payable without presentment, demand, protest or further notice of any kind
(including, without limitation, notice of default, notice of intent to accelerate and notice of
acceleration), all of which are hereby expressly waived by each Borrower and each other Loan Party
party to this Agreement, (iii) terminate any Letter of Credit providing for such termination by
sending a notice of termination as provided therein and (iv) direct the Borrower to take any action
required by Section 11.2; provided that, upon the occurrence of any Event of
Default described in subsection (f) or (g) of Section 11.1, (A) the
Commitment of each Lender and the several obligations of the Lenders to make Loans hereunder and
participate in Letters of Credit (and of the Issuing Banks to issue Letters of Credit) shall
automatically be terminated and (B) the entire unpaid principal amount of the Loans, all interest
accrued and unpaid thereon, any and all unpaid fees, and all such other amounts payable under this
Agreement or any other Loan Document shall automatically become immediately due and payable,
without presentment, demand, protest or any notice of any kind (including, without limitation,
notice of default, notice of intent to accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrowers:







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               (a) Failure to Pay Principal or Reimbursement Obligations. Any Borrower shall fail to
pay any principal of any Loan made to it or any reimbursement obligation in respect of any LC
Disbursement for any Letter of Credit issued for its account, in each case as and when the same
becomes due and payable, whether at the due date thereof or at a date fixed for prepayment thereof
or otherwise, in each case, pursuant to the terms of this Agreement; or



               (b) Failure to Pay Other Amounts. Any Borrower shall fail to pay interest on any Loan
made to it or on any reimbursement obligation in respect of any LC Disbursement for any Letter of
Credit issued for its account or any fee or other amount owed by it and due under this Agreement or
any other Loan Document (other than principal of the Loans and reimbursement obligations in respect
of any Letter of Credit), in each case as and when the same becomes due and payable, and such
failure shall remain unremedied for three (3) Business Days; or



               (c) Default under Other Debt. Any Borrower or any Restricted Subsidiary shall fail to
make any payment (regardless of amount) of principal of, or interest or premium on, any Material
Debt (other than obligations which are covered in Section 11.1(a) or 11.1(b)) when
the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Material Debt; or any other event
constituting a default (however defined) shall occur or condition shall exist under any agreement
or instrument relating to any such Material Debt and shall continue after the applicable grace
period, if any, specified in such agreement or instrument if, during the continuance thereof, the
effect of such event or condition results in such Material Debt becoming due prior to its scheduled
maturity or enables or permits the holder or holders of such Material Debt or any trustee or agent
on its or their behalf to cause such Material Debt to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity (or in the case of
any Hedge Agreement that constitutes a Material Debt, results in such Hedge Agreement being
terminated); or



               (d) Misrepresentation or Breach of Warranty. Any representation or warranty made by
any Borrower or any Subsidiary herein or in any other Loan Document or in any certificate, document
or instrument otherwise furnished to the Administrative Agent, any Lender or any Issuing Bank in
connection with this Agreement or any other Loan Document shall be incorrect, false or misleading
in any material respect when made or when deemed made; or



               (e) Violation of Covenants.




          (i) The Borrower shall default in the due performance or observance of any
covenant, agreement or condition contained in Section 9.1(d), (e) or
(f), 9.2, 9.7 or in Article X; or




          (ii) Any Borrower or any other Loan Party shall default in the due performance
or observance of any other, covenant, agreement or condition contained herein or in
any other Loan Document to which it is a party and such default shall continue
unremedied for thirty (30) days after the earlier to occur of



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(A) a Responsible Officer of the Borrower or any other Loan Party such obtains
actual knowledge of such default and (B) the Administrative Agent’s notifying the
Borrower of such default; or



               (f) Insolvency.




          (i) Any of (A) the Borrower, (B) a Subsidiary Borrower, (C) a Material
Restricted Subsidiary or (D) any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Material Restricted Subsidiary (or any combination
thereof) shall commence a voluntary case, petition, proposal, notice of intention to
file a proposal or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any Debtor Relief Law of any
jurisdiction applicable to it now or hereafter in effect or seeking the appointment
of a trustee, receiver, interim receiver, receiver and manager, liquidator,
custodian or other similar official of it or any substantial part of its property,
or shall consent to (or fail to contest) any such relief or the institution of any
such proceeding or petition or the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall admit in writing its inability to pay its
debts generally, or shall take any corporate action to authorize any of the
foregoing; or




          (ii) An involuntary case, petition, proposal, notice of intention to file a
proposal or other proceeding shall be commenced against (A) the Borrower, (B) a
Subsidiary Borrower, (C) any Material Restricted Subsidiary or (D) any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Material
Restricted Subsidiary (or any combination thereof) seeking liquidation,
reorganization or other relief with respect to it or its debts under any Debtor
Relief Law of any jurisdiction or seeking the appointment of a trustee, receiver,
interim receiver, receiver and manager, liquidator, custodian or other similar
official of it or any substantial part of its property, and such involuntary case,
petition, proposal, notice or other proceeding shall remain undismissed and unstayed
for a period of sixty (60) days; or an order for relief under such any such Debt
Relief Law shall be entered against (A) the Borrower, (B) a Subsidiary Borrower, (C)
any Material Restricted Subsidiary or (D) any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Material Restricted Subsidiary; or



               (g) Dissolution or Termination. (i) the Borrower or any Subsidiary Borrower shall
commence any dissolution, termination, liquidation, winding-up, split-up, or members’ voluntary
dissolution or liquidation, or (ii) a creditors’ voluntary dissolution or liquidation shall be
commenced against any such Person (or any combination thereof), or (iii) any order shall be entered
in any legal proceeding against (A) the Borrower, (B) any Subsidiary Borrower, (C) any Material
Restricted Subsidiary or (D) any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Material Restricted Subsidiary (or any combination thereof) decreeing the dissolution,
termination, liquidation, winding-up or split-up of the



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Borrower, any Subsidiary Borrower, any Material Restricted Subsidiary or any such group of
Restricted Subsidiaries; or




               (h) Judgment. One or more judgments or orders for the payment of money which,
individually or in the aggregate, shall be in excess of 5% of the Consolidated Net Worth as of the
date of determination shall be rendered against (A) the Borrower, (B) any Subsidiary Borrower, (C)
any Material Restricted Subsidiary or (D) any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Material Restricted Subsidiary (or any combination thereof) and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order
or (ii) there shall be any period of thirty (30) consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or



               (i) Nullity of Loan Documents. Any Loan Document shall, at any time after its
execution and delivery and for any reason, cease to be in full force and effect, or be declared to
be null and void, or the validity or enforceability thereof shall be contested by any Loan Party,
or any Loan Party shall deny that it has any or any further liability or obligations under any Loan
Document to which it is a party, or the Pledge Agreement or any Pledge Agreement Supplement shall
for any reason not grant the Administrative Agent a first priority Lien on any material portion of
the Collateral purported to be subject thereto; or



               (j) Change of Control. A Change of Control shall occur; or



               (k) ERISA. An ERISA Event shall have occurred that, when taken together with all other
ERISA Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding (i) $25,000,000 in any year or (ii)
$50,000,000 for all periods; or



               (l) Canadian Pension Plan. (i) Any Borrower or any of its Subsidiaries shall, directly
or indirectly, terminate or cause to terminate, in whole or in part, or initiate the termination
of, in whole or in part, any Canadian Pension Plan so as to result in liability of the Borrower and
its Subsidiaries in an aggregate amount exceeding (A) $25,000,000 in any year or (B) $50,000,000
for all periods; or (ii) any event or condition exists in respect of any Canadian Pension Plan
which presents the risk of liability of such Borrower or any of its Subsidiaries which could
reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding (A) $25,000,000 in any year or (B) $50,000,000 for all periods.



          In addition to and cumulative of any rights or remedies expressly provided for in this
Article XI, if any one or more Events of Default shall have occurred and be continuing, the
Administrative Agent shall at the request, and may with the consent, of the Majority Lenders
proceed to protect and enforce the rights of the Lenders and of the Issuing Banks under the Loan
Documents in any manner or order the Administrative Agent deems appropriate, without regard to any
equitable principles of marshalling or otherwise.




          In addition to all other rights hereunder or under applicable Law, if any one or more Events
of Default shall have occurred and be continuing, the Administrative Agent shall at the request,
and may with the consent, of the Majority Lenders institute proceedings in equity or






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other appropriate proceedings for the specific performance of any covenant or agreement made
in any of the Loan Documents or for an injunction against the violation of any of the terms of any
of the Loan Documents or in aid of the exercise of any power granted in any of the Loan Documents
or by Law or otherwise. Further, to the extent permitted under Law, the Administrative Agent shall
be entitled to the appointment of a trustee or receiver for all or any part of the businesses of
the Borrower or any of its Subsidiaries, which trustee or receiver shall have such powers as may be
conferred by the appointing authority.




          11.2. Collateral Account. The Borrower hereby agrees that (i) upon the payment in full of the
Loans and the termination of the Commitments, or (ii) if any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or
the Majority Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC
Exposures representing not less than 51% of the total LC Exposure) demanding the deposit of cash
collateral, the Borrower shall deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Secured Parties, an amount in cash equal to the
total LC Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default described in subsection (f) or (g) of
Section 11.1. The Borrower also shall deposit cash collateral pursuant to this paragraph as
and to the extent required by Section 2.7, 4.2 or 4.7. Each such deposit
shall be held by the Administrative Agent as collateral for the payment of the Obligations. Until
the occurrence of a Return Event (as defined below), the Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal for the purposes expressly
provided in this Section 11.2, over such account. Other than any interest earned on the
investment of such deposits, such investments shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Banks for LC Disbursements and fees for which
they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Borrowers for the total LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposures
representing not less than 51% of the total LC Exposure), be applied to satisfy the payment of
other matured Obligations. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all
Events of Default have been cured or waived, free of any Lien or other interest in favor of any
Applicable Agent, any Lender or any Issuing Bank (such return, a “Cure Return”). If the
Borrower is required to provide an amount of cash collateral hereunder pursuant to Section
4.2, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower as
and to the extent that, after giving effect to such return, the Borrower would remain in compliance
with Section 4.2 and no Default shall have occurred and be continuing, free and clear of
any Lien or other interest in favor of any Applicable Agent, any Lender or any Issuing Bank (such
return and a Cure Return, each, a “Return Event”). The rights of the Agents, the Lenders
and the Issuing Banks under this Section 11.2 may be exercised from time to time and at all
such times as the conditions precedent thereto may exist.







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          11.3. Remedies Cumulative. All rights and remedies given by this Agreement and the other Loan
Documents are cumulative and not exclusive of any of such rights or remedies or of any other rights
or remedies available to any Agent, any Issuing Bank or any Lender, and no course of dealing
between any Borrower or any other Loan Party, on one hand, and any Agent, any Issuing Bank or any
Lender, on the other hand, and no delay or omission in exercising any right or remedy, shall
operate as a waiver of any right or remedy, and every right and remedy may be exercised from time
to time and as often as shall be deemed appropriate by any Agent, any Issuing Bank or any Lender.




ARTICLE XII

THE AGENTS




          12.1. Authorization and Action. Each of the Lenders and the Issuing Banks hereby irrevocably
appoints and authorizes the entities named as the Administrative Agent, the European Agent and the
Canadian Agent to serve as the Administrative Agent, the European Agent or the Canadian Agent, as
the case may be, under the Loan Documents and to take such action in such capacity on such Lender’s
and Issuing Bank’s behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agents, by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly provided for by this
Agreement or any other Loan Document (including the enforcement or collection of amounts owing
under this Agreement or any other Loan Document), no Agent shall be required to exercise any
discretion or take any action but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of the Majority
Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 13.17), and such instructions shall be binding upon
all Lenders; provided, however, that no Agent shall be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary to the Loan Documents
or applicable law. The Agents are hereby expressly authorized:




               (a) to receive on behalf of each of the Lenders and Issuing Banks any payment of principal of
or interest on the Loans or LC Disbursements outstanding hereunder and all other amounts accrued
hereunder paid to such Agent, and promptly to distribute to each Lender and each Issuing Bank
(other than Defaulting Lenders as set forth herein) its proper share of all payments so received;



               (b) to give notice within a reasonable time on behalf of each Lender or Issuing Bank to the
Borrower of any Default of which such Agent has actual knowledge as provided in Section
12.8;



               (c) to distribute to the Lenders and Issuing Banks copies of all notices, agreements and other
materials as provided for in this Agreement as received by the Administrative Agent; and



               (d) to distribute to the Borrowers and the other Loan Parties, as appropriate, any and all
requests, demands and approvals received by the Administrative Agent from any Lender or Issuing
Bank. Nothing herein contained shall be construed to constitute any



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Agent as a trustee for any Lender, Issuing Bank or Participant, nor to impose on any Agent any
duties or obligations other than those expressly provided for in this Agreement and the other Loan
Documents.




          12.2. Reliance by Agents. The Agents and their respective directors, officers, agents or
employees shall not be liable for any action taken or omitted to be taken by it or them under or in
connection with the Loan Documents, except for such acts or omissions of such Person constituting
gross negligence, willful misconduct or unlawful acts on the part of such Person. IT IS THE EXPRESS
INTENTION OF THE PARTIES THAT THE AGENTS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS SHALL HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS HEREUNDER RESULTING THAT CONSTITUTE
ORDINARY NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY). Without limitation of the generality of the
foregoing, the Administrative Agent (a) may treat the payee of any Note as the holder thereof until
the Administrative Agent receives and accepts an Assignment and Assumption entered into by the
Lender which is the payee of such promissory note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 13.9; (b) may consult with legal counsel (including
counsel for any Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts; (c) makes no warranty or representation to
any Lender or any Issuing Bank and shall not be responsible to any Lender or any Issuing Bank for
any statements, warranties or representations (whether written or oral) made in or in connection
with this Agreement or the other Loan Documents; (d) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Loan Documents on the part of any Loan Party or to inspect the property
(including the books and records) of the Borrower or any other Loan Party; (e) shall not be
responsible to any Lender or any Issuing Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document, any collateral provided for
therein, or any other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of this Agreement or any other Loan Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by facsimile or other
form of electronic transmission permitted by this Agreement) believed in good faith by it to be
genuine and signed or sent by the proper party or parties. The Agents and their respective
directors, officers, employees or agents shall not have any responsibility to any Borrower or any
other Loan Party on account of the failure or delay in performance or breach by any Lender or
Issuing Bank of any of such Lender’s or such Issuing Bank’s obligations hereunder (except to the
extent caused by such Agent’s gross negligence, willful misconduct or unlawful acts) or to any
Lender or Issuing Bank on account of the failure of or delay in performance or breach by any other
Lender or Issuing Bank or any Loan Party of any of their respective obligations hereunder or in
connection herewith, and except as expressly set forth herein, no Agent shall have any duty to
disclose, or shall be liable for the failure to disclose, any information relating to the Borrower
or any of its Subsidiaries that is communicated to or obtained by the bank serving as an Agent or
any of its Affiliates in any capacity.




          12.3. Agents and Affiliates. Without limiting the right of any other Lender to engage in any
business transactions with the Loan Parties or any of their respective Affiliates, with respect to
its Commitment, the Loans made by it, its participations in Letters of Credit, any






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promissory note issued to it, and its interest in the Loan Documents, any Person serving as an
Agent hereunder shall have the same rights and powers under this Agreement and the other Loan
Documents as any other Lender and Issuing Bank may exercise the same as though it were not an
Agent; and the term “Lender” or “Lenders” and “Issuing Bank” or
“Issuing Banks” shall, unless otherwise expressly indicated, include JPMCB in its
individual capacity. JPMCB or any of its Affiliates may draft deposits from, and be engaged in, or
may hereafter engage in, one or more loan, letter of credit, leasing or other financing activities
not the subject of the Loan Documents (such financing activities of JPMCB being, collectively, the
“Other Financings”) with the Borrower or any of its Affiliates, or may act as financial
adviser to, or in any other advisory capacity for, or as trustee on behalf of, or depositary for,
or otherwise engage in other business transactions with the Borrower or any of its Affiliates (all
Other Financings and other such business transactions of JPMCB being, collectively, the “Other
Activities”) with no responsibility to account therefor to the Lenders or Issuing Banks and as
if it were not an Agent hereunder. Without limiting the rights and remedies of the Lenders and the
other Issuing Banks specifically set forth in the Loan Documents, no other Lender or Issuing Bank
shall have any interest in (a) any Other Activities, (b) any present or future Guarantee by or for
the account of the Borrower or any other Loan Party not contemplated or included in the Loan
Documents, (c) any present or future offset exercised by an Agent in respect of any such Other
Activities, (d) any present or future property taken as security for any such Other Activities, or
(e) any property now or hereafter in the possession or control of an Agent which may be or become
security for the Obligations by reason of the general description of indebtedness secured, or of
property, contained in any other agreements, documents or instruments related to such Other
Activities; provided, however, that if any payment in respect of such guarantees or such
property or the proceeds thereof shall be applied to reduction of the Obligations, then, unless
otherwise set forth herein with respect to Defaulting Lenders, each Lender shall be entitled to
share in such application according to its pro rata portion of such obligations.




          12.4. Lender Credit Decisions. Each Lender and each Issuing Bank acknowledges that it has,
independently and without reliance upon any Agent (or its counsel, advisors or agents) or any other
Lender or any of their Related Parties and based on the financial statements referred to in
Section 7.2 and such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also
acknowledges that it will, independently and without reliance upon any Agent (or its counsel,
advisors or agents) or any other Lender or any of their Related Parties, and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.




          12.5. Indemnification. The Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower), ratably according to their respective Pro Rata Percentages, from
and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents or any action taken or omitted by the Administrative
Agent under this Agreement or the other Loan Documents, provided, that no Lender shall be
liable for any portion of such liabilities, obligations, losses,






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damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from
the Administrative Agent’s gross negligence or willful misconduct. IT IS THE EXPRESS INTENTION OF
THE PARTIES HERETO THAT THE ADMINISTRATIVE AGENT SHALL BE INDEMNIFIED AND HELD HARMLESS AGAINST ANY
AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS OF ANY KIND ARISING OUT OF OR RESULTING FROM THE ADMINISTRATIVE AGENT’S
ORDINARY NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY). The Administrative Agent shall not be required
to do any act under the Loan Documents or under any other document or instrument delivered
hereunder or thereunder or in connection herewith or therewith or take any action toward the
execution or enforcement of the agencies hereby created, or to prosecute or defend any suit in
respect of this Agreement or the Loan Documents or any collateral security, unless indemnified to
its satisfaction by the Lenders against loss, cost, liability, and expense. If any indemnity
furnished to the Administrative Agent for any purpose is, in the opinion of the Administrative
Agent, insufficient or becomes impaired, the Administrative Agent may call for additional indemnity
and not commence or cease to do the acts indemnified against until such additional indemnity is
furnished. Without limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement and the other Loan Documents, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower.




          12.6. Employees of the Agents. Each Agent may execute any of its duties and exercise any of
its rights or powers as Agent under this Agreement, the other Loan Documents and any instrument,
agreement or document executed, issued or delivered pursuant hereto or thereto or in connection
herewith or therewith, by or through employees, agents and attorneys-in-fact. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such Person and to the Related Parties of each Agent and any such agent,
attorney-in-fact and shall perform any and all its duties and exercise its rights and powers
through their respective Related Parties selected by such Agent with reasonable care. The
Administrative Agent shall be permitted from time to time to designate one of its Affiliates to
perform the duties to be performed by the Administrative Agent hereunder with respect to Loans,
Borrowings and Letters of Credit denominated in Alternative Currencies. The provisions of this
Article XII shall apply to any such Affiliate mutatis mutandis.




          12.7. Successor Administrative Agent. Any Agent may resign at any time by giving written
notice thereof to the Lenders, the Issuing Banks and the Borrower. The Administrative Agent may be
removed at any time with or without cause by the Majority Lenders. Upon any such resignation or
removal, the Majority Lenders shall have the right, in consultation with the Borrower, to appoint a
successor Administrative Agent with, so long as no Event of Default exists, the consent of the
Borrower. In addition, in the event that (a) the Person serving as an Agent is a Defaulting Lender,
(b) such Person has been replaced in its capacity as a Lender pursuant to Section 3.6, (c)
if such Person is a Swingline Bank, such Person has been replaced in its capacity as a Swingline
Bank pursuant to Section 3.6 and (d) if such Person is an






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Issuing Bank, (i) the Commitment of such Person, as an Issuing Bank, has been terminated
pursuant to Section 4.9(b) and (ii) no Letters of Credit issued by such Person, as an
Issuing Bank, are outstanding such time (unless arrangements satisfactory to such Person for the
cash collateralization thereof have been made), then the Majority Lenders may, by written notice to
the Administrative Agent, remove such Person from its capacity as Administrative Agent under the
Loan Documents and appoint a successor agent, which shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000; provided, however, that the consent or agreement of such
Person, in any of its capacities, shall not be required in respect of its removal as a Lender, a
Swingline Bank or an Issuing Bank. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent’s giving of notice of resignation or the Majority Lenders’
removal of the Administrative Agent, the Administrative Agent may, on behalf of the Lenders and the
Issuing Banks, appoint a successor Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and
duties of the Administrative Agent, and the Administrative Agent shall be discharged from its
duties and obligations under this Agreement and the other Loan Documents, subject to the
requirement that such Administrative Agent will execute such documents and take such actions as may
be necessary or desirable to cause the successor Administrative Agent to be vested with all such
rights, powers, privileges and duties. After any Administrative Agent’s resignation or removal
hereunder as Administrative Agent, the provisions of this Article XII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement and the other Loan Documents.




          12.8. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default unless the Administrative Agent shall have received notice
from a Lender or the Borrower referring to this Agreement, describing such Default and stating that
such notice is a “notice of default” or “notice of event of default,” as
applicable. If the Administrative Agent receives such a notice from the Borrower, the
Administrative Agent shall give notice thereof to the other Lenders and, if such notice is received
from a Lender, the Administrative Agent shall give notice thereof to the other Lenders and the
Borrower. The Administrative Agent shall be entitled to take action or refrain from taking action
with respect to such Default as provided in this Article XII.




          12.9. Execution of Loan Documents. Each of the Lenders and Issuing Banks hereby authorizes and
directs the Administrative Agent to execute and deliver each Loan Document (including, without
limitation, those specified in Section 13.21) to be executed by the Administrative Agent on
or about the Closing Date pursuant to the terms of this Agreement and the other Loan Documents.




          12.10. No Other Duties, Etc. The Persons designated “Co-Agents” on the cover page
hereof, the Arrangers, and any syndication agent or documentation agent appointed with respect to
this Agreement shall, in such capacities, shall have no powers, duties or





123









 







responsibilities under
this Agreement or any of the other Loan Documents, except in their
respective capacities, as applicable, as the Administrative Agent, a Lender or the Issuing
Bank hereunder. Each Lender acknowledges that it has not relied, and will not rely, on any such
Co-Agent, Arranger, syndication agent or documentation agent in deciding to enter into this
Agreement.




ARTICLE XIII

MISCELLANEOUS




          13.1. Waivers, Etc. No failure or delay on the part of any Agent, any Issuing Bank or any
Lender in exercising any right, power or privilege under the Loan Documents and no course of
dealing between the Borrower or any of its Subsidiaries, on the one hand, and any Agent, any
Issuing Bank or any Lender, on the other hand, shall operate as a waiver of any such right, power
or privilege. No single or partial exercise of any right, power or privilege under the Loan
Documents precludes any other or further exercise of any such right, power or privilege or the
exercise of any other right, power or privilege. No notice to or demand on the Borrower or any
other Loan Party in any case shall entitle the Borrower or any other Loan Party to any other or
further notice or demand in similar or other circumstances or shall constitute a waiver of the
right of any Agent, any Issuing Bank or any Lender to take any other or further action in any
circumstances without notice or demand. Any waiver that is given shall be effective only if in
writing and only for the limited purposes expressly stated in the applicable waiver. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in
any event be effective unless the same shall be permitted by Section 13.17, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, neither the execution and delivery of this
Agreement, the making of a Loan nor the issuance of a Letter of Credit shall be construed as a
waiver of any Default, regardless of whether any Agent, any Lender or any Issuing Bank may have had
notice or knowledge of such Default at the time.




          13.2. Notices.




               (a) Except in the case of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), all notices and other communications
provided for in the Loan Documents shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile as follows:




	 	(i)	 	if to a Borrower or any other Loan Party, to it at:






	 	 	 	The Men’s Wearhouse, Inc.

6380 Rogerdale Road

Houston, Texas 77072

Attn: Mr. Neill Davis, Chief Financial Officer

Telecopy No. (281) 776-7102






	 	 	 	with a copy to:




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	 	 	 	Fulbright & Jaworski L.L.P.

1301 McKinney Street, Suite 5100

Fulbright Tower

Houston, Texas 77010

Attn: Mr. Michael W. Conlon

Telecopy No. (713) 651-5246






	 	(ii)	 	if to the Administrative Agent, to it at:






	 	 	 	JPMorgan Chase Bank, N.A.

707 Travis Street, 8th Floor

Mail Station 8CBBN78

Houston, Texas 77002

Attn: Mr. Robert L. Mendoza

Telecopy No. (713) 216-6004






	 	 	 	with a copy to:






	 	 	 	JPMorgan Chase Bank, N.A.

Loan Operations

10 S. Dearborn, Floor 07

Chicago, Illinois 60603-2003

Attn: Mr. Hiral Patel

Telecopy No. (312) 385-7096






	 	(iii)	 	if the notice relates to a Canadian Currency Loan, or if to
the Canadian Agent, to it at:






	 	 	 	JPMorgan Chase Bank, N.A., Toronto Branch

200 Bay Street, Suite 1800

Toronto, Ontario

M5J 2J2

CANADA

Attn: Ms. Indrani Lazarus

Telecopy No.: (416) 981-9174






	 	 	 	with a copy to:






	 	 	 	JPMorgan Chase Bank, N.A.

Loan Operations

10 S. Dearborn, Floor 7

Chicago, IL 60603-2003

Attn: Ms. Linda Reynolds

Telecopy No. : (312) 385-7101






	 	(iv)	 	if the notice relates to an Alternative Currency Borrowing,
other than a Canadian Currency Loan, or if to the European Agent, to it at:




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	 	 	 	J.P.Morgan Europe Limited

125 London Wall

London, EC2Y 5AJ

Attn: Loans Agency

Telecopy No. 44 207 777 2360






	 	 	 	with a copy to:






	 	 	 	JPMorgan Chase Bank, N.A.

Loan Operations

10 S. Dearborn, Floor 07

Chicago, Illinois 60603-2003

Attn: Mr. Hiral Patel

Telecopy No. (312) 385-7096






	 	(v)	 	if to JPMCB, in its capacity as an Issuing Bank, to it at






	 	 	 	JPMorgan Chase Bank, N.A.,

Letter of Credit Group

10 South Dearborn, Floor 07

Chicago, IL 60603-2003

Attn: Phyllis Huggins

Telecopy No. (312) 732-2729






	 	(vi)	 	if to the Swingline Bank, c/o the Administrative Agent at the
address set forth in clause (ii) above; and
	 
	 	(vii)	 	if to any other Lender or Issuing Bank, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire if it has
been received by the party sending such notice or communication, or to such
other address as may be reasonably believed to be correct by the sending party.





          Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have
been given when sent with confirmation of receipt (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of business on the next
business day for the recipient). Notices delivered through electronic communications to the extent
provided in Section 13.2(b) shall be effective as provided in Section 13.2(b). In
the event of a discrepancy between any telephonic and any written notice, the written notice shall
control. Any Lender or Issuing Bank (a) giving any notice to the Borrower or any other Loan Party
shall send simultaneously a copy of such notice to the Administrative Agent and (b) giving any
notice to the Administrative Agent or any Issuing Bank shall send simultaneously a copy of such
notice to the Borrower.



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          The foregoing notwithstanding, notices and communications from any Borrower to the
Administrative Agent shall not be effective until actually received by the Administrative Agent.




               (b) Notices and other communications to the Lenders and Issuing Banks hereunder may be
delivered or furnished by electronic communications (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II, III or IV
unless otherwise agreed by the Administrative Agent and the applicable Lender or Issuing Bank. The
Administrative Agent or the Borrower may, in their respective discretion, agree to accept notices
and other communications to it under the Loan Documents by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications. Unless the Administrative Agent otherwise prescribes, notices
and other communications sent to an e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient.



               (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto in accordance with the provisions of
this Section 13.2.



               (d) The Administrative Agent shall deliver to the Borrower, upon written request, the address
and facsimile number of any Lender and any Issuing Bank and the name of the appropriate contact
person at such Lender or Issuing Bank, in each case as provided in such Lender’s Administrative
Questionnaire.



          13.3. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA.




          13.4. Survival of Representations and Warranties. All representations and warranties contained
in and made or deemed made in the Loan Documents or made in writing by a Borrower or any other Loan
Party in connection herewith or in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or the other Loan Documents shall be considered to have been
relied upon by the other parties hereto and shall survive the making of the Loans and the issuance,
renewal or extension of the Letters of Credit, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that any Agent, any Issuing Bank or any Lender may
have had notice or knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder. All such representations, warranties and covenants will bind and
inure to the benefit of the respective successors and permitted assigns of the parties hereto,
whether so expressed or not; provided that the undertaking of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit shall not inure to the benefit of any successor or
assign of any Borrower. The provisions of Sections 4.8 and 13.11 and Article
XII shall survive and remain in full force and effect regardless




127









 







of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.




          13.5. Counterparts; Integration; Electronic Execution.




               (a) This Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative Agent or any Arranger
constitute the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by
facsimile transmission or electronic submission (in .pdf form) shall be effective as delivery of an
original manually executed counterpart of this Agreement.



               (b) The words “execution,” “signed,” “signature,” or words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.



          13.6. Severability. Should any clause, sentence, paragraph or section of this Agreement or any
other Loan Document be judicially declared to be invalid, illegal, unenforceable or void for any
reason, the validity, legality and enforceability of the remaining provisions shall not be affected
or impaired thereby. Any invalidity, illegality or unenforceability of any term or provision of the
Loan Documents in any jurisdiction shall not affect the validity, legality or enforceability of any
such term of provision in any other jurisdiction. Each covenant contained in this Agreement shall
be construed (absent an express contrary provision herein) as being independent of each other
covenant contained herein, and compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with one or more other covenants.




          13.7. Headings. The Article and Section headings and the Table of Contents used in this
Agreement have been inserted for convenience only and shall not affect the meaning or construction
of any term or provision of this Agreement.




          13.8. Right of Set-off; Adjustments. If an Event of Default shall have occurred and be
continuing, each Lender and Issuing Bank and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, Issuing Bank or Affiliate to or for the credit or the account of any Borrower
or any other Loan Party against any and all of the Obligations of such Person which




128









 







are then due
and payable, irrespective of whether or not such Lender or Issuing Bank shall have made any demand
under this Agreement or any other Loan Document. Each Lender and Issuing Bank agrees to notify the
Borrower and the Administrative Agent promptly after any such setoff and application,
provided that if any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so setoff shall be paid over immediately to the Administrative Agent for further
application and/or cash collateralization pursuant to Section 4.7 and, pending such
payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Borrower as herein provided, and (y) such Defaulting Lender shall
promptly provide to the Administrative Agent a statement describing in reasonable detail the
obligations owing to such Defaulting Lender as to which it exercised such right of setoff;
provided further that the failure to give such notice shall not affect the validity of such
setoff and application. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER OR ISSUING BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL THAT SECURES THE OBLIGATIONS PRIOR TO
EXERCISING ITS RIGHT TO SET-OFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY
BORROWER OR ANY OTHER LOAN PARTY ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. The
rights of each Lender, Issuing Bank and their respective Affiliates under this Section 13.8
are in addition to other rights and remedies (including other rights of set-off) that such Lender,
Issuing Bank or their respective Affiliates may have.




          13.9. Successors and Assigns.




               (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit pursuant to the terms hereof), except
that (i) no Borrower or other Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower or other Loan Party without such consent shall be null and
void), and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section 13.9. 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 (including any Affiliate of an Issuing Bank that
issues a Letter of Credit pursuant to the terms hereof), Participants (to the extent provided in
subsection (c) of this Section 13.9) and, to the extent expressly contemplated
hereby, the Indemnified Parties and Related Parties of each of the foregoing) any legal or
equitable right, remedy or claim under or by reason of this Agreement or any other Loan Document.



               (b) Subject to the conditions set forth in subsection (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations under this Agreement
and the other Loan Documents (including all or a portion of its Commitment and the Loans at the
time owing to it) to any Eligible Assignee with the prior written consent (such consent not to be
unreasonably withheld, delayed or conditioned) of:




               (A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
(as defined below), or, if an Event of Default has occurred and is continuing, any
other assignee; provided further, that the



129









 






Borrower shall be deemed to have
consented to any such assignment unless it shall object thereto by written notice to
the Administrative Agent within five (5) Business Days after having received notice
thereof;




               (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of a Commitment to an
assignee that is a Lender; and




               (C) each Issuing Bank, provided that no consent of an Issuing Bank
shall be required for an assignment of a Commitment to an assignee that is a Lender.



          (ii) Assignments shall be subject to the following additional conditions:





               (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund, or an assignment of the entire remaining amount of the
assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent) shall not be less than the US Dollar Equivalent of
$5,000,000, and the amount of the Commitment or Loans of the assigning Lender after
giving effect to such assignment shall not be less than the US Dollar Equivalent of
$10,000,000, unless both the Borrower and the Administrative Agent otherwise
consent; provided that no such consent of the Borrower shall be required if
an Event of Default has occurred and is continuing;




               (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,
except that this clause (B) shall not apply to the assignment of a
proportionate part of all of the assigning Lender’s rights and obligations in
respect of one Class of Loans or the Commitments related thereto; and
provided that assignments of Alternative Currency Loans by the Alternative
Currency Lenders to a Lender which becomes an Alternative Currency Lender shall not
be required to be made as a proportionate part of the assigning Lender’s Commitment;




               (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500, except that no fee shall be required in the event of an
assignment by a Lender to an Affiliate of such Lender or an Approved Fund; and




               (D) the assignee shall execute and deliver to the Administrative Agent and the
Borrower the forms required by Section 4.8; and




               (E) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



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For the purposes of this Section 13.9(b), the term “Approved Fund” means, with
respect to any Lender that is a fund which invests in bank loans and similar extensions of credit,
any other fund that invests in bank loans and similar extensions of credit and that is administered
or managed by
(i) such Lender, (ii) an Affiliate of such Lender, or (iii) an entity or an Affiliate of an entity
that administers or manages such Lender.




          (iii) Subject to acceptance and recording thereof pursuant to subsection (b)(iv) of
this Section 13.9, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.2, 3.5, 4.8 and 13.11). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
Section 13.9 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 (c) of this
Section 13.9.




          (iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive
absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Banks and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender and an Issuing Bank for all purposes of this Agreement and the other Loan Documents,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower, any Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee required pursuant to
subsection (b) of this Section 13.9, any forms required by Section 4.8, and
any written consent to such assignment required by subsection (b) of this Section
13.9, such Assignment and Assumption shall be effective and the Administrative Agent shall
record the information contained therein in the Register; provided, that if either the
assigning Lender or the assignee shall have failed to make any payment required to be made by it
pursuant to Section 2.5(b), 2.6(c), 2.7(c) or (d), 4.8(d)
or 13.11(d), such Assignment and Assumption shall not become effective unless and until
such all such payments shall have been made in full, together with all accrued and unpaid interest
thereon. Upon the request of an assignee, each Applicable Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered promissory note of
such Borrower (if the assigning Lender holds such a promissory note) a new promissory note (if
requested by such assignee) payable to the order of such assignee in an amount equal to the
Commitment and/or Loans and/or LC Exposure assumed by it pursuant to such assignment and, if the
assigning




131









 







Lender has retained any Commitment and/or Loans and/or LC Exposure hereunder and so
requests, a new promissory note payable to the order of the assigning Lender in an amount equal to
the Commitment and/or Loans and/or LC Exposure retained by it. Such new promissory notes
shall be in an aggregate face amount equal to the Commitment of the assigning Lender and shall
be dated the effective date of such assignment. Thereafter, any surrendered promissory note shall
be marked canceled and returned to the Borrower.




               (c) Any Lender may, without the consent of any Borrower, any Agent, any Issuing Bank, or the
Swingline Bank, sell participations to one or more banks or other entities other than a Defaulting
Lender (a “Participant”) in all or a portion of such Lender’s rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, and (C) the Borrowers, each Agent, each Issuing Bank, and the other 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
participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this Agreement;
provided, that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 13.17 (other than the proviso in clause (iii) of
Section 13.17) that affects such Participant. Subject to subsection (b)(vii) of
this Section 13.9, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 3.2, 3.5, and 4.8 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection (b)of this Section
13.9. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 13.8 as though it were a Lender, provided that such Participant agrees
to be subject to Section 13.8 as though it were a Lender. Each Lender that sells any
participation to any Participant shall give prompt notice thereof to the Administrative Agent and
the Borrower; provided that no liability shall arise if such Lender fails to give such
notice to the Borrower.



               (d) A Participant shall not be entitled to receive any greater payment under Section 3.2,
3.5 or 4.8 than the applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled
to the benefit of Section 4.8 unless the Borrower is notified of the participation sold and
such Participant agrees, for the benefit of the Applicable Borrower, to comply with Section
4.8(e) as though it were a Lender.



               (e) Any Lender may, without the consent of any Borrower or the Administrative Agent, at any
time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section 13.9 shall not apply to any such pledge or
assignment of a security interest; provided that (i) no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto and (ii) all related costs,



132









 




fees and
expenses in connection with any such pledge or assignment or the reassignment back to such Lender,
free of any interests of such assignee, shall be for the sole account of such Lender.




               (f) Subject to compliance with Section 13.19, any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to this Section
13.9, disclose to the assignee or participant or proposed assignee or participant any
information relating to any Borrower or any Subsidiary furnished to such Lender by or on behalf of
such Borrower or such Subsidiary.



               (g) All transfers of any interest in any Loan shall be in compliance with all federal and
state securities laws, if applicable. Notwithstanding the foregoing sentence, however, the parties
to this Agreement do not intend that any transfer under this Section 13.9 be construed as a
“purchase” or “sale” of a “security” within the meaning of any applicable
securities law of any jurisdiction.



          13.10. Interest. All agreements between any Loan Party, any Agent, any Issuing Bank or any
Lender, whether now existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of demand being made on
any Obligation or otherwise, shall the amount contracted for, reserved, taken, charged or received
by any Agent, any Issuing Bank or any Lender for the use, forbearance, or detention of the money to
be loaned under this Agreement or otherwise or for the payment or performance of any covenant or
obligation contained herein or in any other Loan Document exceed the maximum amount of interest
permitted to be contracted for, reserved, taken, charged or received under applicable law from time
to time in effect or the Highest Lawful Rate, if any. If, as a result of any circumstances
whatsoever, fulfillment by any Borrower or any other Loan Party of any provision hereof or of any
of such other Loan Documents, at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury law or result in any Agent, any
Issuing Bank or any Lender having or being deemed to have contracted for, reserved, taken, charged
or received interest (or amounts deemed to be interest) in excess of the maximum lawful rate or
amount of interest allowed by applicable law to be so contracted for, reserved, taken, charged or
received by such Agent, such Issuing Bank or such Lender, then, ipso facto, the obligation to be
fulfilled by such Borrower or such other Loan Party shall be reduced to the limit of such validity,
and if, from any such circumstance, any Agent, any Issuing Bank or any Lender shall ever receive
interest or anything which might be deemed interest under applicable law which would exceed the
maximum amount of interest permitted to be contracted for, reserved, taken, charged or received
under applicable Law from time to time in effect or the Highest Lawful Rate, if any, such amount
which would be excessive interest shall be refunded to the payor thereof or, to the extent (i)
permitted by applicable Law and (ii) such excessive interest does not exceed the unpaid principal
balance of the Loans and the amounts owing on other obligations of the Loan Parties to any Agent,
any Issuing Bank or any Lender under any Loan Document, applied to the reduction of the principal
amount owing on account of the Loan or other Obligations and not to the payment of interest. All
sums paid or agreed to be paid to the any Agent, any Issuing Bank or any Lender for the use,
forbearance, or detention of the indebtedness of any Borrower or any other Loan Party to any Agent,
any Issuing Bank or any Lender shall, to the extent permitted by applicable Law, be amortized,
prorated, allocated, and spread throughout the full term of such indebtedness until payment in full
of the principal thereof (including the period of any renewal or



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extension thereof) so that the
interest on account of such indebtedness shall not exceed the Highest Lawful Rate, if any. The
terms and provisions of this Section 13.10 shall control and
supersede every other provision hereof and of all other agreements between the Loan Parties,
any Agent, any Issuing Bank and any Lender.




               (a) If any provision of this Agreement or of any of the other Loan Documents would obligate
the Canadian Borrower to make any payment of interest or other amount payable to any Agent, any
Lender or any Issuing Bank in an amount or calculated at a rate which would be prohibited by law or
would result in a receipt by such Agent, such Lender or such Issuing Bank of interest at a criminal
rate (as such terms are construed under the Criminal Code (Canada)) then, notwithstanding such
provisions, such amount or rate shall be deemed to have been adjusted with retroactive effect to
the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or
so result in a receipt by such Agent, such Lender or such Issuing Bank of interest at a criminal
rate, such adjustment to be effected, to the extent necessary, as follows: (1) firstly, by reducing
the amount or rate of interest required to be paid to the Lenders under Section 3.1, and
(2) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid
to such Agent, such Lender or such Issuing Bank which would constitute “interest” for
purposes of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after
giving effect to all adjustments contemplated thereby, if an Agent, any Lender or any Issuing Bank
shall have received an amount in excess of the maximum permitted by that Section of the Criminal
Code (Canada), the Applicable Borrower shall be entitled, by notice in writing to the
Administrative Agent, to obtain reimbursement from such Agent, such Lender or such Issuing Bank in
an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be
an amount payable by such Agent, such Lender or such Issuing Bank, as the case may be, to such
Applicable Borrower. Any amount or rate of interest referred to in this Section 13.10(b)
shall be determined in accordance with generally accepted actuarial practices and principles as an
effective annual rate of interest over the term that the applicable Loan remains outstanding on the
assumption that any charges, fees or expenses that fall within the meaning of “interest”
(as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be
pro-rated over that period of time and otherwise be pro-rated over the period from the Closing Date
to the Maturity Date and, in the event of a dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by the Administrative Agent shall be conclusive for the purposes
of such determination.



          13.11. Expenses; Indemnification.




               (a) The Borrower agrees to pay within fifteen (15) days after demand (i) all reasonable costs
and expenses of the Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein and completed on the Closing Date, the preparation,
negotiation, execution, delivery, modification, amendment, administration (and waiver of any
provision) of this Agreement, the other Loan Documents and the other documents to be delivered
hereunder (whether or not the transactions contemplated hereby or thereby shall be consummated),
including in each case the reasonable fees and expenses of counsel for the Administrative Agent
(including the cost of internal counsel) with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under the Loan Documents and (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Banks in connection with the issuance,
amendment, renewal or extension of any Letter of Credit



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or any demand for payment thereunder. The
Borrower further agrees to pay on demand all reasonable costs and expenses of the Agents, the
Issuing Banks and the Lenders, if any
(including reasonable attorneys’ fees and expenses and the cost of internal counsel), in
connection with the enforcement or protection of its rights (whether through negotiations, legal
proceedings, or otherwise) in connection with the Loan Documents and the other documents to be
delivered hereunder or thereunder, including all such costs and expenses incurred during a workout,
restructuring or negotiations with respect to the Loans or Letters of Credit.




               (b) The Borrower shall indemnify each Agent, each Issuing Bank and each Lender, and each
Related Party of each of the foregoing (each, an “Indemnified Party”) against, and hold
each Indemnified Party harmless from, any and all losses, claims, damages, liabilities, costs, and
related expenses (including reasonable attorneys’ fees and expenses) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including in connection with any investigation, litigation, or proceeding or
preparation of defense in connection therewith) (i) the Loan Documents or the Transactions; (ii)
any Loan or Letter of Credit or any Borrower’s or any of its Subsidiaries’ use of the proceeds
therefrom (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit); (iii), the failure to pay any Loan or LC Disbursement denominated
in an Alternative Currency, or any interest thereon, in the Alternative Currency in which such Loan
was originally made or applicable Letter of Credit issued; or (iv) any actual or alleged presence
or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any
of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of
its Subsidiaries; PROVIDED FURTHER THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT THE
INDEMNIFIED PARTIES BE INDEMNIFIED FOR CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES
ARISING FROM THEIR OWN NEGLIGENCE; and provided that such indemnity shall not, as to any
Indemnified Party, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnified
Party, (y) arises by reason of a claim (A) by one or more Indemnified Parties against one or more
other Indemnified Parties or (B) by an owner of Equity Interest of an Indemnified Party against one
or more other Indemnified Parties, so long as such claim is not proximately caused by a breach of
or Default under a Loan Document by or with respect to a Loan Party, or (z) is incurred by any
Defaulting Lender to the extent directly arising from or caused by the conduct, acts, omissions or
events of or applicable to such Defaulting Lender that were the cause of such Lender’s becoming a
Defaulting Lender; provided, however, that nothing herein shall be deemed to limit any Loan
Party’s payment obligations under any other provision of this Agreement or any other Loan Document
as a result of such Lender’s becoming a Defaulting Lender. Notwithstanding anything herein to the
contrary, neither a Defaulting Lender nor any Related Party of a Defaulting Lender will be
reimbursed for, indemnified against or held harmless from, costs and expenses related to the
replacement of such Defaulting Lender or other matters incidental thereto.



               (c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO AGREES NOT
TO ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY OTHER PARTY HERETO OR ANY



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INDEMNIFIED PARTY, ON
ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO
DIRECT OR ACTUAL
DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY, ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREOF. NO PARTY HERETO OR ANY
INDEMNIFIED PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF
ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR
OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




               (d) To the extent that the Borrowers fail to pay any amount required to be paid by them to any
Agent (or any sub-agent thereof), any Issuing Bank or the Swingline Bank, or any Related Party of
any of the foregoing, under subsection (a) or (b) of this Section
13.11, each Lender severally agrees to pay to such Agent (or any such subagent), such
Issuing Bank, the Swingline Bank or such Related Party, as the case may be, such Lender’s pro rata
share (determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against such Agent (or such subagent), such Issuing Bank or the Swingline Bank in its capacity as
such, or against any Related Party of any of the foregoing acting for an Agent (or any such
sub-agent), any Issuing Bank or the Swingline Bank in connection with such capacity. For purposes
hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of
the total Credit Exposures and unused Commitments at the time (or most recently outstanding and in
effect).



               (e) Without prejudice to the survival of any other agreement of any Borrower or any other Loan
Party hereunder, the agreements and obligations of the parties hereto contained in this Section
13.11 shall survive the payment in full of the Loans, the termination of the Commitments, and
the expiry of all Letters of Credit.



          13.12. Payments Set Aside. To the extent any payments on the Obligations or proceeds of any
Collateral 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 Person under any Debtor Relief Law or equitable cause, then, to the
extent of such recovery, the Obligation or part thereof originally intended to be satisfied, and
all rights and remedies therefor, shall be revived and shall continue in full force and effect, and
the Agents’, the Issuing Banks’ and the Lenders’ rights, powers and remedies under this Agreement
and each other Loan Document shall continue in full force and effect, as if such payment had not
been made or such enforcement or setoff had not occurred. In such event, each Loan Document shall
be automatically reinstated and the Borrower shall take such action as may be reasonably requested
by the Administrative Agent, the Issuing Banks and the Lenders to effect such reinstatement.







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          13.13. Loan Agreement Controls. If there are any conflicts or inconsistencies among this
Agreement and any of the other Loan Documents, the provisions of this Agreement shall prevail and
control.




          13.14. Obligations Several. The obligations of each Lender and any Issuing Bank under each
Loan Document to which it is a party are several, and no Lender shall be responsible for any
obligation or Commitment of any other Lender under any Loan Document to which it is a party.
Nothing contained in any Loan Document to which it is a party, and no action taken by any Lender or
any Issuing Bank pursuant thereto, shall be deemed to constitute the Lenders or Issuing Banks, or
any combination of them, to be a partnership, an association, a joint venture, or any other kind of
entity.




          13.15. SUBMISSION TO JURISDICTION; WAIVERS.




               (a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, IN ANY SUIT, LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NONEXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATES OF TEXAS AND NEW YORK, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, THE COURTS OF THE UNITED STATES OF AMERICA
SITTING IN NEW YORK CITY, AND APPELLATE COURTS FROM ANY THEREOF; AND WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT.



               (b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE DEFENSE OF AN INCONVENIENT FORUM; AND AGREES NOT TO PLEAD OR CLAIM THE SAME.



               (c) EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS BY MAILING OF A COPY
THEREOF (BY REGISTERED OR CERTIFIED MAIL OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL POSTAGE PREPAID)
TO THE ADDRESS SET FORTH IN SECTION 13.2 OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER
PARTIES HERETO SHALL HAVE BEEN NOTIFIED IN WRITING PURSUANT TO SECTION 13.2.


Notwithstanding the foregoing, nothing herein shall in any way affect the right that any party
hereto may otherwise have to bring any action relating to this Agreement against any other party
hereto or its property in the courts of any jurisdiction.




          13.16. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS






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CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.16.




          13.17. Amendments, Waivers and Consents. This Agreement and the other Loan Documents (other
than Specified Hedge Agreements) may not be amended or modified except by a written instrument
describing such amendment or modification executed by the Borrower and the Administrative Agent
with the consent of the Lenders as provided in this Section 13.17. With the written consent
of the Majority Lenders, the Administrative Agent shall, on behalf of the Lenders, enter into
agreements that modify, amend or supplement this Agreement or any other Loan Document, and with any
such consent, the Administrative Agent shall waive compliance with any provision of any of the Loan
Documents, all as referred to in this Section 13.17; provided, that this
Section 13.17 shall not apply to Specified Hedge Agreements. However, no such modification,
amendment, supplement or waiver shall:





          (i) increase the Commitment of any Lender without such Lender’s written
consent,




          (ii) extend the Maturity Date or forgive or postpone the scheduled date of
payment of principal of, or interest on, any Loan or LC Disbursement, without each
Lender’s written consent,




          (iii) amend the interest rate provisions hereof to decrease the rate of
interest payable to any Lender, without each Lender’s written consent;
provided that the written consent of the Majority Lenders, rather than the
consent of all Lenders, shall be sufficient to waive imposition of the default rate
pursuant to Section 3.1(h),




          (iv) forgive or reduce the principal amount of any outstanding Loan or LC
Disbursement, without each Lender’s consent,




          (v) forgive or reduce the amount of any fee payable under Article V or
other fee payable to any Lender (other than any fee payable solely to the
Administrative Agent or the Arrangers) or postpone any date fixed for any payment of
any fee hereunder, without each Lender’s written consent,




          (vi) extend the expiry date of any Letter of Credit beyond the Maturity Date,
without each Lender’s written consent,




          (vii) (y) amend, modify or waive the provisions of Section 4.10,
13.14 or this Section 13.17, or (z) increase the aggregate amount of
all



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Commitment Increases as provided in Section 4.11(a), in each case
without each Lender’s written consent,




          (viii) except as permitted or otherwise provided by the terms hereof, change
the currency of any Loan or LC Disbursement or the currency in which any Commitment
is required to be funded, without each Lender’s written consent,




          (ix) amend or modify the definition of “Majority Lenders” or “Pro
Rata Percentage” without each Lender’s written consent,




          (x) other than as set forth herein, change the aggregate unpaid principal
amount of the Loans or LC Disbursements, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action hereunder, without each
Lender’s written consent,




          (xi) except as provided in Section 13.21, release any Pledged
Collateral, or release the Borrower from the Parent Guaranty Agreement or release
any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty
Agreement, without each Lender’s written consent, or




          (xii) waive any of the conditions specified in Section 8.3 with respect
to any Borrowing or the issuance, renewal, extension or amendment of any Letter of
Credit, without each Lender’s written consent,


provided further that no amendment, waiver or consent shall affect the rights or duties of
an Agent, an Issuing Bank or the Swingline Bank under this Agreement or any other Loan Document,
unless in writing and signed by such Agent, such Issuing Bank, or the Swingline Bank, respectively,
in addition to the Lenders required above to take such action. Notwithstanding anything to the
contrary herein, this Section 13.17, in respect of Defaulting Lender, shall be subject to
Section 4.7.




          13.18. Relationship of the Parties. This Agreement provides for (among other things) the
making of loans by the Lenders, in their capacity as Lenders, to the Borrowers, in their capacity
as borrowers, for the issuance by the Issuing Banks for the account of the Borrowers, and for the
payment of interest and repayment of principal by the Borrowers to the Lenders. The relationship
between the Lenders and the Borrowers is limited to that of creditors/secured parties, on the one
hand, and debtor, on the other hand. The provisions herein for compliance with financial,
environmental, and other covenants, delivery of financial, environmental and other reports, and
financial, environmental and other inspections, investigations, audits, examinations or tests are
intended solely for the benefit of the Lenders and the Issuing Banks to protect their interests as
lenders and issuing banks, respectively, in assuming payments of interest and repayment of
principal and LC Disbursements, and nothing contained in this Agreement or any other Loan Document
shall be construed as permitting or obligating any Agent, any Lender or any Issuing Bank to act as
financial or business advisors or consultants to any Borrower or any other Loan Party, as
permitting or obligating any Agent, any Lender or any Issuing Bank to control any Borrower or any
other Loan Party or to conduct or






139









 







operate the operations of any Borrower or any other Loan Party, as creating any fiduciary
obligation on the part of any Agent, any Lender or any Issuing Bank to any Borrower or any other
Loan Party, or as creating any joint venture, agency, or other relationship between the parties
other than as explicitly and specifically stated in this Agreement. Each Loan Party acknowledges
that it has had the opportunity to obtain the advice of experienced counsel of its own choosing in
connection with the negotiation and execution of this Agreement and the other Loan Documents and to
obtain the advice of such counsel with respect to all matters contained herein and therein,
including the provision in Section 13.16 for waiver of trial by jury. Each Loan Party
further acknowledges that it is experienced with respect to financial and credit matters and has
made its own independent decision to apply to the Lenders for the financial accommodations provided
hereby and to make to the Borrowers the financial accommodations provided hereby, as the case may
be, and to execute and deliver this Agreement and the other Loan Documents to which each is a
party.




          13.19. Confidentiality. Each Agent, each Issuing Bank and each Lender (on behalf of itself
and each of its Affiliates) agrees to maintain the confidentiality of the Information (as defined
below), provided that Information may be disclosed (i) to its and its Affiliates’
respective partners, directors, officers, members, managers, employees and agents, including
accountants, legal counsel and other advisors (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), (ii) to the extent requested by any regulatory authority,
(iii) to the extent required by applicable Laws or regulations or by any subpoena or similar legal
process, (iv) to any other party to 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), (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this Section 13.19, to (A) any
assignee of or Participant in or any prospective assignee of or Participant in any of its rights or
obligations under this Agreement, (B) any pledgee or prospective pledgee referred to in Section
13.9(e), (C) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any of the Borrowers and its obligations (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), or (D) to Lenders and Additional
Lenders as provided in Section 4.11, (vii) with the consent of the Borrower (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), or (viii) to the
extent such Information (A) becomes publicly available other than as a result of a breach of this
Section 13.19 or (B) becomes available to the Administrative Agent, any Issuing Bank or any
Lender on a nonconfidential basis from a source other than the Loan Parties. For the purposes of
this Section 13.19(a), “Information” means all information received from, or
furnished at the direction of, any of the Loan Parties or any of their respective Affiliates
relating to any of the Loan Parties or any of their respective Affiliates or any of their
respective businesses, other than any such information that is available to an Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by any Loan Party or any of their
respective Affiliates; provided that, in the case of information received from any of the
Loan Parties or any of their respective Affiliates after the date hereof, such information is
clearly





140












 




identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section 13.19 shall be considered to
have complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.




               (a) EACH LENDER (I) ACKNOWLEDGES THAT MATERIALS AND INFORMATION REGARDING ONE OR MORE LOAN
PARTIES FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE BORROWERS AND THE OTHER LOAN PARTIES AND THEIR RESPECTIVE AFFILIATES, AND THEIR
RESPECTIVE RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND (II) CONFIRMS THAT IT HAS DEVELOPED
COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW,
INCLUDING FEDERAL, PROVINCIAL, TERRITORIAL, STATE AND ALL OTHER SECURITIES LAWS.



               (b) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY A BORROWER,
ANY OTHER LOAN PARTY OR AN AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION ABOUT THE BORROWERS AND THE OTHER LOAN PARTIES AND THEIR RESPECTIVE AFFILIATES, AND
THEIR RESPECTIVE RELATED PARTIES OR THEIR RESPECTIVE BUSINESSES OR SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAD IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL, PROVINCIAL, TERRITORIAL, STATE AND ALL OTHER SECURITIES LAWS.



          13.20. Advertisement. The Administrative Agent may, upon reasonable prior written notice to,
and consent of (which consent will not be unreasonably withheld or delayed), the Borrower, provide
information relating to this Agreement to Gold Sheets, and other similar bank trade publications,
with such information to consist of (i) the Borrower’s name, (ii) principal loan amounts, (iii)
interest rate, (iv) term length and (v) the identity of the Lenders’ attorneys and other
non-confidential information customarily found in such publications.




          13.21. Release of Liens and Guarantees.




               (a) Notwithstanding any contrary provision herein or in any other Loan Document, if the
Borrower shall request the release under the Pledge Agreement or the Subsidiary Guaranty Agreement
of any Restricted Subsidiary or any Pledged Collateral to be sold or otherwise disposed of
(including through the sale or disposition of any Subsidiary owning any such Restricted Subsidiary
or Pledged Collateral or resulting from the liquidation,



141









 




dissolution or termination of a Restricted Subsidiary) to a Person other than the Borrower or any
other Restricted Subsidiary in a transaction not prohibited under the terms of this Agreement as of
result of which such Subsidiary ceases to be a Subsidiary, the Borrower shall deliver to the
Administrative Agent a certificate executed by a Financial Officer to the effect that such sale or
other disposition (and any liquidation, dissolution or termination relating thereto) is not
prohibited by the terms of this Agreement. Upon receipt of such certificate, the Administrative
Agent, if reasonably satisfied that such certificate is correct, shall, without the consent of any
Lender or Issuing Bank, execute and deliver all such instruments, releases, financing statements or
other agreements, and take all such further actions, as the Borrower may reasonably request to
effectuate the release of such Restricted Subsidiary or such Pledged Collateral substantially
simultaneously with or, at the Borrower’s election, at any time after the completion of such sale
or other disposition. Any such release shall be without recourse to, or representation or warranty
by, the Administrative Agent and shall not require the consent of any Lender or Issuing Bank.




               (b) Notwithstanding any contrary provision herein or in any other Loan Document, if the
Borrower shall request the release under the Pledge Agreement or the Guaranty Agreement of any
Restricted Subsidiary or any Pledged Collateral consisting of the Equity Interests issued by any
Restricted Subsidiary due to (i) the re-designation of such Restricted Subsidiary as not a Material
Restricted Subsidiary as a result of the designation of other Restricted Subsidiaries as Material
Restricted Subsidiaries under the applicable provisions hereof or (ii) the fact that such
Restricted Subsidiary no longer qualifies as a Material Restricted Subsidiary pursuant to the
definition thereof, the Borrower shall deliver to the Administrative Agent a certificate executed
by a Financial Officer to the effect that such Restricted Subsidiary is no longer a Material
Restricted Subsidiary, together with any documents or other evidence that the Administrative Agent
may reasonably request in order to verify the statements made in such certificate, and the
Administrative Agent, if reasonably satisfied that such certificate is correct, shall, without the
consent of any Lender or Issuing Bank, execute and deliver all such instruments, releases,
financing statements or other agreements, and take all such further actions, as the Borrower shall
reasonably request to effectuate the release of such Restricted Subsidiary or such Pledged
Collateral. Any such release shall be without recourse to, or representation or warranty by, the
Administrative Agent and shall not require the consent of any Lender or Issuing Bank.



               (c) Without limiting the provisions of Section 13.10, the Borrower shall reimburse the
Administrative Agent and the Lenders for all reasonable costs and expenses, including attorneys’
fees and disbursements, incurred by any of them in connection with any action contemplated by this
Section 13.21.



          13.22. Currency Conversion and Currency Indemnity.




               (a) The Applicable Borrower shall make payment relative to each Loan made to it and each
Letter of Credit issued for its account in the currency (the “Agreement Currency”) in which
such Loan was made or such Letter of Credit was issued. If any such payment is received in any
currency (the “Other Currency”) other than the Agreement Currency (whether voluntarily or
pursuant to an order or judgment or the enforcement thereof or the realization of any security or
the liquidation of the Applicable Borrower or otherwise howsoever), such payment shall constitute a
discharge of the liability of the Applicable Borrower



142









 




hereunder and under the other Loan Documents in respect of such obligation only to the extent of
the amount of the Agreement Currency which the relevant Lender or Issuing Bank or Agent, as the
case may be, is able to purchase with the amount of the Other Currency received by it on the
Business Day next following such receipt in accordance with its normal procedures and after
deducting any premium and costs of exchange.




               (b) If, for the purpose of obtaining or enforcing judgment in any court in any jurisdiction,
it becomes necessary to convert a sum owing hereunder in one currency into another currency, each
party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange
used shall be the rate of exchange prevailing on the Business Day next preceding the day on which
judgment is given and in any event the Applicable Borrower shall be obligated to pay the relevant
Applicable Agent, the relevant Issuing Bank or the relevant Lender, as applicable, any deficiency
in accordance with Section 13.22(c). For the foregoing purposes, “rate of exchange”
means the rate at which the relevant Applicable Agent, the relevant Issuing Bank or relevant
Lender, as applicable, in accordance with its normal banking procedures in the relevant
jurisdiction the first currency could be purchased with such other currency, after deducting any
premium and costs of exchange.



               (c) The obligations of an Applicable Borrower in respect of any sum due to any party hereto
(the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than the Agreement Currency, be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so
due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency;
if the amount of the Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency by an Applicable Borrower, then such Applicable
Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of an Applicable Borrower contained in this
Section 13.22 shall survive the termination of this Agreement and the payment of all other
amounts owing hereunder.



               (d) The agreement of indemnity provided for in this Section 13.22 shall constitute an
obligation separate and independent from all other obligations contained in this Agreement, shall
give rise to a separate and independent cause of action, shall apply irrespective of any indulgence
granted by any Applicable Creditor from time to time, and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or
under any judgment or order.



          13.23. FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.




          13.24. USA PATRIOT ACT Notice. Each Lender that is subject to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 signed into law October 26, 2001) and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies







143









 







each Loan Party that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies each Loan Party, which information includes the name,
taxpayer identification number and business address of such Loan Party and other information that
will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in
accordance with the USA PATRIOT Act.




          13.25. Anti-Money Laundering Legislation.




               (a) Each Loan Party acknowledges that, pursuant to the Canadian AML Legislation, the Agents,
the Lenders and the Issuing Banks may be required to obtain, verify and record information
regarding each Loan Party, its respective directors, authorized signing officers, direct or
indirect shareholders or other Persons in control of such Loan Party, and the transactions
contemplated hereby. The Borrower shall promptly provide all such information, including supporting
documentation and other evidence, as may be reasonably requested by any Agent, any Lender or any
Issuing Bank, or any prospective assignee or participant of a Lender or an Issuing Bank, in order
to comply with any applicable Canadian AML Legislation, whether now or hereafter in existence.



               (b) If the Administrative Agent has ascertained the identity of the Loan Parties or any
authorized signatories of the Loan Parties for the purposes of applicable Canadian AML Legislation,
then the Administrative Agent:




          (i) shall be deemed to have done so as an agent for each Lender, and this
Agreement shall constitute a “written agreement” in such regard between each
Lender and the Administrative Agent within the meaning of applicable Canadian AML
Legislation; and




          (ii) shall provide to each Lender copies of all information obtained in such
regard without any representation or warranty as to its accuracy or completeness.


Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of
the Lenders agrees that the Administrative Agent has no obligation to ascertain the identity of the
Loan Parties or any authorized signatories of the Loan Parties on behalf of any Lender, or to
confirm the completeness or accuracy of any information it obtains from the Loan Parties or any
such authorized signatory in doing so.




          13.26. Amendment and Restatement.




               (a) On the Closing Date the Existing Credit Agreement shall be amended, restated and
superseded in its entirety hereby. The parties hereto acknowledge and agree that (i) this
Agreement, any promissory notes delivered pursuant to Section 4.1(e) and the other Loan
Documents executed and delivered in connection herewith do not constitute a novation or termination
of the “Obligations” (as defined in the Existing Credit Agreement) under the Existing
Credit Agreement as in effect prior to the Closing Date and (ii) such “Obligations” are in
all respects continuing with only the terms thereof being modified as provided in this Agreement.



144









 





               (b) Notwithstanding the modifications effected by this Agreement of the representations,
warranties and covenants of the Borrower contained in the Existing Credit Agreement, the Borrower
acknowledges and agrees that any causes of action or other rights created in favor of the
Administrative Agent, any Issuing Bank or any Lender, in each case, party to or its successors
arising out of the representations and warranties of the Borrower contained in or delivered in
connection with the Existing Credit Agreement shall survive the execution, delivery and
effectiveness of this Agreement to the extent provided in the Existing Credit Agreement prior to
the termination thereof.



               (c) All indemnification obligations of the Borrower arising under the Existing Credit
Agreement (including any arising from a breach of the representations thereunder) shall survive to
the extent provided in the Existing Agreement prior to the termination thereof.



ARTICLE XIV

COLLECTION ACTION MECHANISM




          14.1. Implementation of CAM.




               (a) On the CAM Exchange Date, (i) the Commitments shall automatically and without further act
be terminated, (ii) the Lenders and the Issuing Banks shall automatically and without further act
be deemed to have exchanged interests in the Designated Obligations such that, in lieu of the
interests of each Lender and each Issuing Bank in the Designated Obligations under each Tranche (as
defined below) in which it shall participate as of such date, such Lender and such Issuing Bank
shall own an interest equal to such Lender’s and such Issuing Bank’s CAM Percentage in the
Designated Obligations under each of the Tranches and (iii) simultaneously with the deemed exchange
of interests pursuant to clause (ii) above, the interests in the Designated Obligations to
be received in such deemed exchange shall, automatically and with no further action required, be
converted into the US Dollar Equivalent, determined using the Spot Exchange Rate calculated as of
such date, of such amount and on and after such date all amounts accruing and owed to the Lenders
and the Issuing Banks in respect of such Designated Obligations shall accrue and be payable in US
Dollars at the rate otherwise applicable hereunder. Each Lender, each Issuing Bank, each Person
acquiring a participation from any Lender as contemplated by Section 13.9(c) and each of
the Loan Parties that is a party to this Agreement hereby consents and agrees to the CAM Exchange.
Each of the Loan Parties that is a party to this Agreement, the Issuing Banks and the Lenders
agrees from time to time to execute and deliver to the Administrative Agent all such promissory
notes and other instruments and documents as the Administrative Agent shall reasonably request to
evidence and confirm the respective interests and obligations of the Lenders and Issuing Banks
after giving effect to the CAM Exchange, and each Lender agrees to surrender any promissory notes
originally received by it in connection with its Loans hereunder to the Administrative Agent
against delivery of any promissory notes so executed and delivered; provided that the
failure of any Borrower to execute or deliver or of any Lender to accept any such promissory note,
instrument or document shall not affect the validity or effectiveness of the CAM Exchange. For
purposes hereof, “Tranche” means a category of Commitments and extensions of credits
thereunder. For purposes of such definition, each of the following comprises a separate Tranche:
(i) the Letters of Credit issued for the account of, and the Swingline Loans, Alternative Currency
Loans and other Revolving Loans



145









 




made to the Borrower in US Dollars; (ii) the Letters of Credit issued for the account of, and the
Revolving Loans made to, Eligible Borrowers in Canadian Dollars; (iii) the Letters of Credit issued
for the account of, and the Revolving Loans made to, Eligible Borrowers in Sterling, and (iv) the
Letters of Credit issued for the account of, and the Revolving Loans made to, Eligible Borrowers in
Euro.




               (b) As a result of the CAM Exchange, on and after the CAM Exchange Date, each payment received
by an Agent pursuant to any Loan Document in respect of the Designated Obligations shall
(notwithstanding any provision therein to the contrary) be distributed to the Lenders and Issuing
Banks pro rata in accordance with their respective CAM Percentages (to be redetermined as of each
such date of payment or distribution to the extent required by Section 14.1(c)), but giving
effect to assignments after the CAM Exchange Date, it being understood that nothing in this
Article XIV shall be construed to prohibit the assignment of a proportionate part of all an
assigning Lender’s rights and obligations in respect of a single Class of Commitments or Loans.



               (c) In the event that, on or after the CAM Exchange Date, the aggregate amount of the
Designated Obligations shall change as a result of the making of a disbursement under a Letter of
Credit by an Issuing Bank that is not reimbursed by the Applicable Borrower, then (i) each Lender
which, immediately prior to the CAM Exchange Date, had a Commitment or Credit Exposure shall, in
accordance with Section 2.7(c), promptly purchase from the applicable Issuing Bank a
participation in such LC Disbursement in the amount of such Lender’s Pro Rata Percentage
(determined without giving effect to the CAM Exchange) of such LC Disbursement, (ii) the
Administrative Agent shall redetermine the CAM Percentages after giving effect to such disbursement
and the making of such LC Disbursement and the purchase of participations therein by the Lenders
and the Lenders shall automatically and without further act be deemed to have exchanged interests
in the Designated Obligations such that each Lender shall own an interest equal to such Lender’s
CAM Percentage in the Designated Obligations under each of the Tranches (and the interests in the
Designated Obligations to be received in such deemed exchange shall, automatically and with no
further action required, be converted into the US Dollar Equivalent of such amount in accordance
with the first sentence of Section 14.1(a)) and (iii) in the event distributions shall have
been made in accordance with Section 14.1(b), the Lenders shall make such payments to one
another as shall be necessary in order that the amounts received by them shall be equal to the
amounts they would have received had each such disbursement and LC Disbursement been outstanding on
the CAM Exchange Date. Each such redetermination shall be binding on each of the Lenders and their
successors and assigns and shall be conclusive, absent manifest error.



[Remainder of Page Intentionally Left Blank; Signatures Commence in Next Page]





146









 








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




	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	/s/ NEILL P. DAVIS
 	 
	 	 	Name:  	Neill P. Davis  	 
	 	 	Title:  	Executive Vice President, Chief
Financial Officer, Treasurer and Principal
Financial Officer 	 
	 
	 	MOORES THE SUIT PEOPLE INC.

 	 
	 	By:  	/s/ NEILL P. DAVIS
 	 
	 	 	Name:  	Neill P. Davis  	 
	 	 	Title:  	Treasurer 	 
	 
	 	MWUK HOLDING COMPANY LIMITED

 	 
	 	By:  	/s/ NEILL P. DAVIS
 	 
	 	 	Name:  	Neill P. Davis  	 
	 	 	Title:  	Director 	 
	 



Signature Page to Second Amended and Restated Credit Agreement






 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as 

Administrative Agent, an Issuing Bank 

and Swingline Bank

 	 
	 	By:  	/s/ DARREN VANEK
 	 
	 	 	Name:  	Darren Vanek  	 
	 	 	Title:  	Vice President 	 
	 
	 	JPMORGAN CHASE BANK, N.A., 

TORONTO BRANCH, as Canadian 

Agent and an Issuing Bank

 	 
	 	By:  	/s/ DARREN VANEK
 	 
	 	 	Name:  	Darren Vanek  	 
	 	 	Title:  	Vice President 	 
	 
	 	J. P. MORGAN EUROPE LIMITED, as 

European Agent

 	 
	 	By:  	/s/ DARREN VANEK
 	 
	 	 	Name:  	Darren Vanek  	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Second Amended and Restated Credit Agreement







 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ GARY L. MINGLE
 	 
	 	 	Name:  	Gary L. Mingle  	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	BANK OF AMERICA, N.A., LONDON BRANCH

 	 
	 	By:  	/s/ GARY SAINT
 	 
	 	 	Name:  	Gary Saint  	 
	 	 	Title:  	Vice President 	 
	 
	 	BANK OF AMERICA, N.A., CANADA BRANCH

 	 
	 	By:  	/s/ CLARA MCGIBBON
 	 
	 	 	Name:  	Clara McGibbon  	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to Second Amended and Restated Credit Agreement







 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, 

as Syndication Agent

 	 
	 	By:  	/s/ BLAKE MALIA
 	 
	 	 	Name:  	Blake Malia  	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION 

CANADA BRANCH

 	 
	 	By:  	/s/ JOSEPH RAUHALA
 	 
	 	 	Name:  	Joseph Rauhala  	 
	 	 	Title:  	Principal Officer 	 
	 



Signature Page to Second Amended and Restated Credit Agreement






 









 








	 	 	 	 	 
	 	UNION BANK, N.A., as Documentation Agent

 	 
	 	By:  	/s/ JUSTIN BRAUER
 	 
	 	 	Name:  	Justin Brauer  	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Second Amended and Restated Credit Agreement






 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.

 	 
	 	By:  	/s/ REGINALD M. GOLDSMITH III
 	 
	 	 	Name:  	Reginald M. Goldsmith III  	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to Second Amended and Restated Credit Agreement







 









 








	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ BRIAN GINGUT
 	 
	 	 	Name:  	Brian Gingut #16514  	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Second Amended and Restated Credit Agreement








 









 








	 	 	 	 	 
	 	BOKF, N.A. dba BANK OF TEXAS

 	 
	 	By:  	/s/ MARIAN LIVINGSTON
 	 
	 	 	Name:  	Marian Livingston  	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Second Amended and Restated Credit Agreement









 









 








	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA

 	 
	 	By:  	/s/ MICHELLE C. PHILLIPS
 	 
	 	 	Name:  	Michelle C. Phillips  	 
	 	 	Title:  	Director 	 
	 



Signature Page to Second Amended and Restated Credit Agreement





 











 





EXHIBIT A




[FORM OF]

ASSIGNMENT AND ASSUMPTION



          This Assignment and Assumption (the “Assignment and Assumption”) 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 same may be amended, modified, increased, supplemented and/or restated from time to time,
the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to and incorporated herein by reference and made a part of this Assignment and Assumption as if set
forth herein in full.




          For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.





	 	1.	 	Assignor:       
          
            
             
              
             
            
             
          
                
	 
	 	2.	 	Assignee:         
             
            
           
             
             
          
            
            
              

[and is an Affiliate/Approved Fund of [identify Lender]]1
	 
	 	3.	 	Borrowers: The Men’s Wearhouse, Inc., as Borrower, Moores The Suit People Inc.,
as a Subsidiary Borrower, and MWUK Holding Company Limited, as a Subsidiary Borrower







 




			
	1	 	Select as applicable.




 









 






2






	 	4.	 	Administrative Agent: JPMorgan Chase Bank, N.A., as the Administrative Agent
under the Credit Agreement; for Loans denominated in Sterling or Euro, J.P. Morgan
Europe Limited; for Loans denominated in Canadian Dollars, JPMorgan Chase Bank, N.A.,
Toronto Branch
	 
	 	5.	 	Credit Agreement: The Second Amended and Restated Credit Agreement dated as of
January __, 2011, among The Men’s Wearhouse, Inc., Moores The Suit People Inc., MWUK
Holding Company Limited, the Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent, and
J.P. Morgan Europe Limited, as European Agent
	 
	 	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage
	 	 	 	 	 	 	Aggregate Amount of	 	Amount of	 	Assigned of
	Commitment/Loans	 	Denomination in which	 	Commitment/Loans for	 	Commitment/Loans	 	Commitment/
	Assigned2	 	Loans are funded:	 	all applicable Lenders	 	Assigned	 	Loans3
	Revolving Loan
Commitment
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 






Effective Date: _________________ ___, 201__ [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 and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	2	 	Fill in the appropriate terminology for the
Class and Type of Commitment and/or Loans under the Credit Agreement that are
being assigned under this Assignment (e.g. “Eurocurrency Loan,” etc.)
	 
	3	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all applicable Lenders thereunder.




 









 







3




	 	 	 	 	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


[Consented to and]4 Accepted:




	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as

Administrative Agent

 	 	 
	By  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	[Consented to:5



THE MEN’S WEARHOUSE, INC.

 	 	 
	By  	 	 	 
	 	Name:  	 	 	 
	 	Title: ]	 	 	 
	 
	[Consented to: 6




[JPMORGAN CHASE BANK, N.A.],

as Issuing Bank

 	 	 
	By  	 	 	 
	 	Name:  	 	 	 
	 	Title: ]	 	 	 
	 





 




			
	4	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the
Borrower is required by the terms of the Credit Agreement.
	 
	6	 	To be added for each Issuing Bank, if any,
only if the consent of such Issuing Banks is required by the terms of the
Credit Agreement.




 









 







4





[_____________________________],



as Issuing Bank




	 	 	 	 	 
	 	 	 
	By  	 	 	 
	 	Name:  	 	 	 
	 	Title: ]]	 	 	 
	 
	[Consented to:7



J.P. Morgan Europe Limited,

as European Agent

 	 	 
	By  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	JPMorgan Chase Bank, N.A., Toronto Branch,

as Canadian Agent

 	 	 
	By  	 	 	 
	 	Name:  	 	 	 
	 	Title: ]	 	 	 
	 





 




			
	7	 	To be added only if the consent of the
European Agent and/or Canadian Agent is required by the terms of the Credit
Agreement.




 









 










ANNEX 1




[        
          
             ]8




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION



          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 Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrowers, any of their respective Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance by the Borrowers,
any of their respective 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
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 9.1 thereof 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 Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on Administrative Agent or any other Lender, and (v) if it is a Foreign Lender,
attached to the Assignment and Assumption 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






 




			
	8	 	Describe Credit Agreement at option of
Administrative Agent.




 









 







2



obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender.




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




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by facsimile transmission or electronic submission (in .pdf form) shall
be effective as delivery of a manually executed counterpart of this Assignment and Assumption.
This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of
the State of New York and, to the extent applicable, the United States of America.






 









 








EXHIBIT B




FORM OF

PLEDGE AND SECURITY AGREEMENT



[SEE FOLLOWING PAGES]



 









 





PLEDGE AND SECURITY AGREEMENT




Dated as of January 26, 2011



From



THE PLEDGORS,



in favor of



JPMORGAN CHASE BANK, N.A.,

AS ADMINISTRATIVE AGENT



 









 





PLEDGE AND SECURITY AGREEMENT




          PLEDGE AND SECURITY AGREEMENT (this “Agreement”), dated as of January 26, 2011, by and
among each of the signatories hereto other than the Administrative Agent (together with any other
entity that may become a party hereto as provided herein, each a “Pledgor” and collectively
the “Pledgors”) and JPMORGAN CHASE BANK, N.A., and its successors and permitted assigns, as
Administrative Agent (the “Administrative Agent”), for the equal and ratable benefit of the
Lenders from time to time party to the hereinafter described Credit Agreement (together with the
Administrative Agent, hereinafter collectively referred to as the “Lenders”) and the other
Secured Parties (as defined below).




          PRELIMINARY STATEMENTS:




          (1) Each Pledgor is the owner of the shares of stock, limited or unlimited liability company
interests or partnership interests (the “Shares”) described in Schedule 1 and
issued by the corporation, limited or unlimited liability company or partnership named therein (the
“Issuer”) as to which it is therein designated as the holder.




          (2) The Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch (the “Canadian
Agent”), J.P. Morgan Europe Limited (the “European Agent”), the Lenders, The Men’s
Wearhouse, Inc. (the “Borrower”), Moores The Suit People Inc. (“MSP”) and MWUK
Holding Company Limited (“MWUK” and collectively with MSP, the “Subsidiary Borrower”) have
entered into that certain Second Amended and Restated Credit Agreement dated as of even date
herewith (as hereafter amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”). It is a condition precedent to the effectiveness of the Credit
Agreement that each Pledgor shall have executed and delivered this Agreement.




          NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained herein
and for other good and valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Lenders to make the Loans and issue the Letters of
Credit under the Credit Agreement, each Pledgor hereby agrees as follows:




          SECTION 1. Defined Terms and Related Matters.






     (a) The capitalized terms used herein which are defined in the Credit Agreement and not
otherwise defined herein shall have the meanings specified therein.




     (b) The words “hereof”, “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.




     (c) Unless otherwise defined herein or in the Credit Agreement, the terms defined in
Articles 8 and 9 of the Uniform Commercial Code as enacted in the State of New York, as
amended from time to time (the “UCC”), are used herein as therein defined.




     (d) “Adverse Claim” shall have the meaning given to it in the STA.



 









 






     (e) “Canadian Issuer” means any Issuer incorporated, formed or organized in
Canada, or in any province or territory thereof, including, without limitation, any of such
corporations, partnerships, limited or unlimited liability companies or equivalent entities,
from time to time, listed on Schedule 1, and their respective successors.




     (f) “Certificated Security” shall have the meaning given to it in the STA.




     (g) “Control” shall have the meaning set forth in Article 8 or, if applicable,
in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC, and in the case of the
Canadian Issuers, with respect to a specified form of Investment Property, “Control” shall
have the meaning as defined in Sections 23 through 26 of the STA, as applicable to such form
of Investment Property.




     (h) “Foreign Subsidiary” means any Subsidiary that is not a Domestic
Subsidiary.




     (i) “Foreign Subsidiary Voting Stock” means the voting Equity Interests of any
First-Tier Foreign Subsidiary.




     (j) “Investment Property” shall have the meaning given to it in the PPSA.




     (k) “Pledged Collateral” shall have the meaning given to it in Section
2 of this Agreement.




     (l) “Pledged Stock” means the Shares listed on Schedule 1, together
with any other shares, certificates, limited liability company interests, membership
interests, options, interests or rights of any nature whatsoever in respect of the Equity
Interests of any Material Restricted Subsidiary that may be issued or granted to, or held
by, any Pledgor while this Agreement is in effect; provided that in no event shall
more or less than 65% of the total issued and outstanding Foreign Subsidiary Voting Stock of
any First-Tier Foreign Subsidiary be required to be pledged hereunder.




     (m) “PPSA” means the Personal Property Security Act (Ontario), including the
regulations thereto, each as amended from time to time.




     (n) “Proceeds” means all “proceeds” as such term is defined in Section
9-102(a)(64) of the UCC and, in any event, shall include, without limitation, all dividends
or other income from the Pledged Collateral (as defined below), all collections thereon, and
all interest or distributions or payments with respect thereto.




     (o) “Secured Parties” means the collective reference to the Administrative
Agent, the Canadian Agent, the European Agent, any Issuing Bank, the Lenders and, in the
case of any Specified Hedge Agreement, any Affiliate of any Lender.




     (p) “STA” means the Securities Transfer Act, 2006 (Ontario), including the
regulations thereto, each as amended from time to time, provided that, to the extent that
the validity, perfection or effect of perfection or non-perfection or the priority of the
security interest in the Pledged Collateral is governed by the laws in effect in any



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province or territory of Canada other than Ontario in which there is in force
legislation substantially the same as the Securities Transfer Act, 2006 (Ontario) (an
“Other STA Province”), then “STA” shall mean such other legislation as in effect
from time to time in such Other STA Province for purposes of the provisions hereof referring
to or incorporating by reference provisions of the STA; and to the extent that such
validity, perfection or effect of perfection or non-perfection or priority is governed by
the laws of a jurisdiction other than Ontario of an Other STA Province, then references
herein to the STA shall be disregarded except for the terms “Certificated Security” and
“Uncertificated Security”, which shall have the meanings herein as defined in the Securities
Transfer Act, 2006 (Ontario) regardless of whether an STA is in force in the applicable
jurisdiction.




     (q) “ULC” shall have the meaning assigned to such term in Section 12(d)
of this Agreement.




     (r) “ULC Interest” shall have the meaning assigned to such term in Section
12(d) of this Agreement.



          SECTION 2. Pledge. Each Pledgor hereby mortgages, charges, assigns, transfers,
delivers, pledges and hypothecates to the Administrative Agent, for the equal and ratable benefit
of the Secured Parties, and hereby grants to and in favor of the Administrative Agent, for the
equal and ratable benefit of the Secured Parties, a security interest in and a lien on, all of the
following property now or hereafter acquired by such Pledgor in which Pledgor now has or at any
time in the future may acquire any right, title or interest (the “Pledged Collateral”):





     (a) the Pledged Stock;




     (b) all Debt of any Restricted Subsidiary from time to time owed to such Pledgor,
including but not limited to such Debt specified on Schedule 2; and




     (c) all Proceeds of the foregoing.



          The inclusion of Proceeds in this Agreement does not authorize any Pledgor to sell, dispose of
or otherwise use the Pledged Collateral in any manner not specifically authorized hereby or by the
Credit Agreement.




          SECTION 3. Security for Obligations. The pledge, security interest and lien granted
pursuant to Section 2 of this Agreement secures the prompt and complete payment when due
(whether at the stated maturity, by acceleration or otherwise) of the Obligations.




          SECTION 4. Delivery of Pledged Collateral. All certificates or instruments
representing or evidencing the Pledged Stock and any negotiable certificates, instruments and other
documents representing or evidencing Debt that constitutes Pledged Collateral, have been delivered
to and held by the Administrative Agent or, at the Administrative Agent’s option, the
Administrative Agent’s nominee, pursuant hereto in suitable form for transfer by delivery, or
accompanied by duly executed instruments of transfer or assignment in blank, or a power of attorney
in respect thereof, all in form and substance satisfactory to the Administrative Agent. The
Administrative Agent shall have the right at any time during the continuance of an Event of


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Default to exchange certificates or instruments representing or evidencing the Pledged
Collateral in its possession for certificates or instruments of smaller or larger denominations.




          SECTION 5. Representations and Warranties. Each Pledgor represents and warrants to
the Administrative Agent as follows:





     (a) This Agreement is, and all other documents and instruments executed by such Pledgor
in connection herewith will be, legal, valid and binding obligations of such Pledgor
enforceable against such Pledgor in accordance with their respective terms, except as
enforceability may be (i) limited by applicable Debtor Relief Laws and (ii) subject to
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).




     (b) The Pledged Stock pledged by such Pledgor has been duly authorized and validly
issued and is fully paid and nonassessable under the laws of the jurisdiction of
organization of the Issuer.




     (c) Such Pledgor is the record, legal and beneficial owner of, and has good and
marketable title to, the Pledged Collateral pledged by such Pledgor free and clear of any
Lien, and, as of the date hereof, with respect only to the Pledged Stock of a Canadian
Issuer, any Adverse Claim, and there are no preemptive rights, offers, options, rights,
agreements or commitments of any kind (contingent or otherwise) relating to the issuance,
conversion, registration, voting, sale, or transfer of any Pledged Collateral or obligating
any Pledgor to purchase or redeem any such Equity Interests or other securities pursuant to
the organizational documents of any such Pledgor or any agreement or other instrument to
which such Pledgor is a party or by which it is bound except as provided herein.




     (d) This Agreement and the delivery of the Pledged Collateral by such Pledgor to the
Administrative Agent pursuant to Section 4 create a valid first priority Lien in
favor of the Administrative Agent in the Pledged Collateral pledged by such Pledgor securing
the payment of the Obligations.




     (e) No authorization, approval or other action by, and no notice to or filing with, any
Governmental Authority which has not been received is required by such Pledgor for (i) the
pledge by such Pledgor of the Pledged Collateral pursuant to this Agreement; (ii) the
execution, delivery or performance of this Agreement by such Pledgor; or (iii) the exercise
by the Administrative Agent of the voting or other rights provided for in this Agreement or
the remedies in respect of the Pledged Collateral pursuant to this Agreement (except as may
be required in connection with such disposition by laws affecting the offering and sale of
securities generally).




     (f) As of the date hereof, the Pledged Stock pledged by such Pledgor constitutes (i)
all of the issued and outstanding shares of all classes of Equity Interests of each Issuer
or, (ii) in the case of Foreign Subsidiary Voting Stock, 65% of the issued and outstanding
Foreign Subsidiary Voting Stock of each relevant Issuer.



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     (g) Such Pledgor has received, or will receive, direct or indirect benefit from the
making of this Agreement.




     (h) On the date hereof, such Pledgor’s jurisdiction of organization, identification
number from its jurisdiction of organization (if any), and the location of such Pledgor’s
chief executive office or sole place of business, as the case may be, are as specified on
Schedule 3.




     (i) As of the date hereof, there are no other outstanding shares issued by TMW
Marketing Company, Inc. other than the number of shares as set forth on Schedule 1.



          SECTION 6. Further Assurances. Each Pledgor agrees that at any time and from time to
time, at the request of the Administrative Agent and at the expense of such Pledgor, such Pledgor
will promptly execute and deliver all further instruments and documents, obtain all necessary
resolutions in compliance with any applicable share transfer restrictions, stock powers of attorney
and other similar documents with respect to the Pledged Collateral, in form and substance
reasonably satisfactory to the Administrative Agent, and take all further action that may be
reasonably necessary or desirable, or that the Administrative Agent may reasonably request, in
order to perfect and protect any security interest granted or purported to be granted hereby or to
enable the Administrative Agent to exercise and enforce the Secured Parties’ rights and remedies
hereunder with respect to any of the Pledged Collateral. To the extent any of the Pledged
Collateral is at any time in the custody of a securities intermediary or a nominee thereof, then
the applicable Pledgor shall take any actions necessary to cause such securities intermediary or
such nominee to cause the Administrative Agent to have and retain Control over such Pledged
Collateral. Without limiting the foregoing, at the Administrative Agent’s request, each Pledgor
will, with respect to Pledged Collateral held with a securities intermediary, cause such securities
intermediary to enter into a control agreement with the Administrative Agent, in form and substance
satisfactory to the Administrative Agent, giving the Administrative Agent Control.




          SECTION 7. Voting Rights; Dividends; Etc.





     (a) So long as no Event of Default shall have occurred and be continuing (unless waived
by the requisite Lenders in accordance with the terms of the Credit Agreement):




     (i) Each Pledgor shall be entitled to exercise any and all voting and other
consensual rights (including, without limitation, the right to give consents,
waivers and notifications in respect of the Pledged Collateral) pertaining to the
Pledged Collateral or any part thereof; provided that no vote shall be cast
or consent, waiver or ratification given or action taken which would be inconsistent
with or violate any provision of this Agreement or any other Loan Document; and
provided further that each Pledgor shall give the Administrative Agent at least ten
(10) days’ written notice (in the form of an officer’s certificate) of the manner in
which it intends to exercise, or the reasons for refraining from exercising, any
voting or other consensual rights pertaining to the Pledged Collateral or any part



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thereof, which might have a material adverse effect on the value of the Pledged
Collateral or any part thereof; and




     (ii) Each Pledgor shall be entitled to receive and retain any and all
dividends, interest and amounts and property paid in respect to redemptions,
liquidations, dissolutions or otherwise paid in respect of the Pledged Collateral to
the extent not prohibited by the Credit Agreement; provided that any and all




          (A) dividends and interest paid or payable in Equity Interests in respect of,
and received, receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Collateral,




          (B) dividends and other distributions hereafter paid or payable in Equity
Interests in respect of any Pledged Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital, capital
surplus or paid in surplus, and




          (C) Equity Interests distributed in redemption of, or in exchange for, any
Pledged Collateral,




shall be, and shall be forthwith delivered to the Administrative Agent to hold as, Pledged
Collateral and shall, if received by any Pledgor, be received in trust for the benefit of the
Administrative Agent, be segregated from the other property or funds of such Pledgor and be
forthwith delivered to the Administrative Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement).




     (b) Upon the occurrence and during the continuance of an Event of Default (unless
waived by the requisite Lenders in accordance with the terms of the Credit Agreement):




     (i) The Administrative Agent may, without notice to any Pledgor, transfer or
register in the name of the Administrative Agent or any of its nominees, for the
equal and ratable benefit of the Secured Parties, any or all shares of the Pledged
Collateral held by the Administrative Agent hereunder, and the Administrative Agent
or its nominee may thereafter, after delivery of notice to such Pledgor (which
notice must have been requested by the Majority Lenders), exercise, to the extent
not prohibited by applicable law, all voting and corporate rights at any meeting of
any Issuer issuing any of the shares included in the Pledged Collateral and any and
all rights of conversion, exchange, subscription or any other rights, privileges or
options pertaining to any shares of the Pledged Collateral as if it were the
absolute owner thereof, including, without limitation, the right to exchange at its
discretion any and all of the Pledged Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment of any Issuer issuing any of
such shares or upon the exercise by any such Issuer or the Administrative Agent of
any right, privilege or option pertaining to any shares of the Pledged Collateral,
and in connection therewith, to deposit and deliver any and all of the Pledged
Collateral with any committee, depositary, transfer agent,



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registrar or other designated agency upon such terms and conditions as it may
determine, all without liability except to account for property actually received by
it, but the Administrative Agent shall have no duty to exercise, and the Lenders
shall not have any duty to request the exercise of, any of the aforesaid rights,
privileges or options, and neither the Administrative Agent nor any Lender shall be
responsible for any failure to do so or delay in so doing.




     (ii) All rights of any Pledgor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to Section
7(a)(i) and to receive the dividends and interest payments which it would
otherwise be authorized to receive and retain pursuant to Section 7(a)(ii)
or the Credit Agreement shall cease, and all such rights shall thereupon become
vested in the Administrative Agent, which shall thereupon have the sole right to
exercise such voting and other consensual rights and to receive and hold as Pledged
Collateral such dividends and interest payments.




     (iii) All dividends and interest payments which are received by any Pledgor
contrary to the provisions of Section 7(b)(ii) shall be received in trust
for the benefit of the Administrative Agent, shall be segregated from other funds of
such Pledgor, and shall be forthwith paid over to the Administrative Agent as
Pledged Collateral in the same form as so received (with any necessary endorsement).




     (iv) Each Pledgor shall execute and deliver (or cause to be executed and
delivered to the Administrative Agent) all such proxies and other instruments as the
Administrative Agent may reasonably request for the purpose of enabling the
Administrative Agent to exercise the voting and other rights which it is entitled to
exercise pursuant to paragraph (ii) above and to receive the dividends or interest
payments which it is entitled to receive and retain pursuant to paragraph (iii)
above.




     (c) The provisions of this Section 7 shall be subject in all respects to the
provisions set forth in Section 12(d) of this Agreement.



          SECTION 8. Transfers and Other Liens; Additional Shares; No Amendment.





     (a) No Pledgor shall sell, exchange or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral or create or permit to exist any Lien, except for
Liens created hereunder, upon or with respect to any of the Pledged Collateral.




     (b) Subject to the limitations set forth in Section 2 herein, each Pledgor
agrees that it will (i) prevent each Issuer of the Pledged Stock pledged by such Pledgor
from issuing any Equity Interest in such Issuer (other than such Pledged Stock) or other
securities in addition to or in substitution for such Pledged Stock, except to such Pledgor,
and (ii) pledge hereunder, immediately upon its acquisition (directly or indirectly)
thereof, any and all additional Equity Interests in, or other securities of, such Issuer.



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     (c) No Pledgor shall amend, and each Pledgor shall prevent each Issuer of the Pledged
Stock pledged by such Pledgor from amending, the articles of association (or equivalent
corporate documents) of such Issuer in a manner that would adversely affect the rights and
remedies of the Lenders and the Administrative Agent under this Agreement or the Credit
Agreement.



          SECTION 9. Administrative Agent Appointed Attorney in Fact. Each Pledgor hereby
irrevocably appoints the Administrative Agent as such Pledgor’s attorney in fact, effective upon
the occurrence and during the continuance of an Event of Default (unless waived by the requisite
Lenders in accordance with the terms of the Credit Agreement), with full authority in the place and
stead of such Pledgor and in the name of such Pledgor, the Administrative Agent or otherwise, from
time to time in the Administrative Agent’s discretion, to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation:





     (a) to ask, demand, collect, sue for, recover, compound, receive and give acquittance
and receipts for moneys due and to become due under or in respect of any of the Pledged
Collateral;




     (b) to receive, endorse and collect any drafts or other instruments, documents and
chattel paper in connection with subsection (a) above; and




     (c) to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable (or which the Majority Lenders may
direct) for the collection of any of the Pledged Collateral or otherwise to enforce the
rights of the Lenders and the Administrative Agent with respect to any of the Pledged
Collateral.



          SECTION 10. Administrative Agent May Perform. If any Pledgor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or cause performance of,
such agreement, and the reasonable expenses of the Administrative Agent incurred in connection
therewith shall be payable by the Borrower under Section 13.11 of the Credit Agreement.




          SECTION 11. Possession; Reasonable Care. The Administrative Agent shall hold in its
possession all Pledged Collateral pledged, assigned or transferred hereunder and from time to time
constituting a portion of the Pledged Collateral, except any documents or instruments as from time
to time may be required for recordation or for the purpose of enforcing or realizing upon any right
or value thereby represented. The Administrative Agent may, from time to time, in its sole
discretion, appoint one or more agents (which in no case shall be any Pledgor or an affiliate of
any Pledgor) to hold physical custody, for the account of the Administrative Agent, of any or all
of the Pledged Collateral. The Administrative Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Pledged Collateral in its possession if the Pledged
Collateral is accorded treatment substantially equal to that which the Administrative Agent accords
its own property, it being understood that the Administrative Agent shall not have any
responsibility for (a) ascertaining or taking action with


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respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not the Administrative Agent has or is deemed to have knowledge of
such matters, or (b) taking any necessary steps to preserve rights against any parties with respect
to any Pledged Collateral.




          SECTION 12. Remedies. If any Event of Default shall have occurred and be continuing
(unless waived by the requisite Lenders in accordance with the terms of the Credit Agreement):





     (a) The Administrative Agent may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party upon default under the applicable UCC (whether or
not the UCC applies to the affected Pledged Collateral), or under the laws of any other
applicable jurisdiction, and the Administrative Agent may also, without notice except as
specified below, sell the Pledged Collateral or any part thereof in one or more parcels at
public or private sale, at any exchange, broker’s board or at any of the Administrative
Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Administrative Agent may deem commercially reasonable. Each Pledgor
agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’
notice to such Pledgor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The Administrative
Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so adjourned.




     (b) Any cash held by the Administrative Agent as Pledged Collateral and all cash
proceeds received by the Administrative Agent in respect of any sale of, collection from, or
other realization upon all or any part of the Pledged Collateral may, in the discretion of
the Administrative Agent, be held by the Administrative Agent as collateral for, and then or
at any time thereafter applied in whole or in part by the Administrative Agent against, the
Obligations in such order as the Administrative Agent shall select. Any surplus of such
cash or cash proceeds and interest accrued thereon, if any, held by the Administrative Agent
and remaining after payment in full of all the Obligations shall be paid over to such
Pledgor or to whomsoever may be lawfully entitled to receive such surplus; provided
that the Administrative Agent shall have no obligation to invest or otherwise pay interest
on any amounts held by it in connection with or pursuant to this Agreement other than as set
forth in the Credit Agreement.




     (c) All rights and remedies of the Administrative Agent and the other Secured Parties
expressed herein are in addition to all other rights and remedies possessed by the
Administrative Agent and the other Secured Parties in the Loan Documents and any other
agreement or instrument relating to the Obligations.




     (d) Notwithstanding the grant of security interest made by a Pledgor in favour of the
Administrative Agent, its successor and assigns, for the rateable benefit of the



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Secured Parties, of all of its Pledged Stock, any Pledgor that controls any interest
(for the purposes of this Section 12(d), “ULC Interests”) in any unlimited
liability company (for the purposes of this Section 12(d), a “ULC”) pledged
hereunder shall remain registered as the sole registered and beneficial owner of such ULC
Interests and will remain as registered and beneficial owner until such time as such ULC
Interests are effectively transferred into the name of the Administrative Agent or any other
person on the books and records of such ULC. Nothing in this Agreement is intended to or
shall constitute the Administrative Agent or any person as a shareholder or member of any
ULC until such time as notice is given to such ULC and further steps are taken thereunder so
as to register the Administrative Agent or any other person as the holder of the ULC
Interests of such ULC. To the extent any provision hereof would have the effect of
constituting the Administrative Agent or any other person as a shareholder or member of a
ULC prior to such time, such provision shall be severed therefrom and ineffective with
respect to the ULC Interests of such ULC without otherwise invalidating or rendering
unenforceable this Agreement or invalidating or rendering unenforceable such provision
insofar as it relates to Pledged Stock which are not ULC Interests. Except upon the
exercise of rights to sell or otherwise dispose of ULC Interests following the occurrence
and during the continuance of an Event of Default hereunder, no Pledgor shall cause or
permit, or enable any ULC in which it holds ULC Interests to cause or permit, the
Administrative Agent to: (a) be registered as shareholders or members of such ULC; (b) have
any notation entered in its favour in the share register of such ULC; (c) be held out as a
shareholder or member of such ULC; (d) receive, directly or indirectly, any dividends,
property or other distributions from such ULC by reason of the Administrative Agent holding
a security interest in such ULC; or (e) act as a shareholder or member of such ULC, or
exercise any rights of a shareholder or member of such ULC including the right to attend a
meeting of, or to vote the shares of, such ULC.



          SECTION 13. Registration Rights, Private Sales, Etc.





     (a) If the Administrative Agent shall determine to exercise its and the other Secured
Parties’ right to sell all or any of the Pledged Collateral pursuant to Section 12,
each Pledgor agrees that, upon request of the Administrative Agent, such Pledgor will cause
the officers and directors of each Issuer of the Shares it has pledged, at its expense, to
cooperate fully with the Administrative Agent in conformity with requirements imposed by law
for the availability of an exemption from registration under the Securities Act of 1933, as
amended from time to time (the “Securities Act”), and if the Administrative Agent
shall determine that such exemption is not reasonably available for such sale, such Pledgor
shall use its reasonable efforts to:




     (i) execute and deliver, and cause the Issuer of the Pledged Collateral pledged
by it hereunder and contemplated to be sold and the directors and officers thereof
to execute and deliver, all such instruments and documents, and to use its
reasonable efforts to do or cause to be done all such other acts and things, as may
be necessary in the reasonable opinion of the Administrative Agent to effectively
realize upon the value of such Pledged Collateral, to register such Pledged
Collateral under the provisions of the Securities Act, or the securities laws of any
relevant jurisdiction outside the United States, to use its reasonable efforts to



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cause the registration statement relating thereto to become effective and to
remain effective for such period as prospectuses are required by law to be furnished
to facilitate the sale or other disposition of such Pledged Collateral, or that
portion thereof to be sold, and to make all amendments and supplements thereto and
to the related prospectuses which, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the Securities
Act, and the rules and regulations of the Securities Act, and the rules and
regulations of the Securities and Exchange Commission, applicable thereto or, where
relevant, the laws, sales and regulations of such other jurisdiction applicable
thereto;




     (ii) qualify the Pledged Collateral pledged by it hereunder under the state
securities or “Blue Sky” laws, if applicable thereto, and to obtain all necessary
governmental approvals for the sale of such Pledged Collateral, as requested by the
Administrative Agent;




     (iii) cause the Issuer of the Pledged Collateral pledged by it hereunder to
make available to its security holders, as soon as practicable, an earnings
statement which will satisfy the provisions of Section 11(a) of the Securities Act;
and




     (iv) do or cause to be done all such other acts and things as reasonably may be
necessary to make such sale of the Pledged Collateral or any part thereof valid and
binding and in compliance with applicable law.




     (b) Each Pledgor recognizes that the Administrative Agent may be unable to effect a
public sale of any or all of the Pledged Collateral by reason of certain prohibitions
contained in the laws of any jurisdiction outside the United States or in the Securities Act
and applicable state securities laws, but may be compelled to resort to one or more private
sales thereof to a restricted group of purchasers who will be obliged to agree, among other
things, to acquire such Pledged Collateral for their own account for investment and not with
a view to the distribution or resale thereof. Each Pledgor acknowledges and agrees that any
such private sale may result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall, to the extent permitted by law, not be deemed to have been made in a
commercially unreasonable manner solely by reason of such lesser prices or favorable terms.
Neither the Administrative Agent nor the other Secured Parties shall be under any obligation
to delay a sale of any of the Pledged Collateral for the period of time necessary to permit
the Issuer of such securities to register such securities under the laws of any jurisdiction
outside the United States, under the Securities Act or under any applicable state securities
laws, even if the Issuer would agree to do so.




     (c) Each Pledgor further agrees to do or cause to be done, to the extent that such
Pledgor may legally do so, all such other acts and things as reasonably may be necessary to
make such sales or resales of any portion or all of the Pledged Collateral pledged by it
valid and binding and in compliance with any and all applicable laws,



-11-









 







regulations, orders, writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at such Pledgor’s expense. Each Pledgor further agrees that a
breach by it of any of the covenants contained in this Section 13 will cause
irreparable injury to the Administrative Agent and the other Secured Parties, and that the
Administrative Agent and the other Secured Parties have no adequate remedy at law in respect
of such breach and, as a consequence, agrees that each and every covenant contained in this
Section 13 shall be specifically enforceable against such Pledgor, and each Pledgor
hereby WAIVES and agrees, to the fullest extent permitted by law, not to assert as a defense
against an action for specific performance of such covenants that (i) such Pledgor’s failure
to perform such covenants will not cause irreparable injury to the Administrative Agent or
the other Secured Parties, or (ii) the Administrative Agent or the other Secured Parties
have an adequate remedy at law in respect of such breach, or (iii) any other defense, except
for a defense that no Event of Default has occurred. Each Pledgor further acknowledges the
impossibility of ascertaining the amount of damages which would be suffered by the
Administrative Agent and the other Secured Parties by reason of a breach of any of the
covenants contained in this Section 13 and, consequently, agrees that, if such
Pledgor shall breach any of such covenants and the Administrative Agent or any other Secured
Party shall sue for damages for such breach, such Pledgor shall pay to the Administrative
Agent or such Secured Party, as liquidated damages and not as a penalty, an aggregate amount
equal to the value of the Pledged Collateral on the date the Administrative Agent or such
Secured Party shall demand compliance with this Section 13.




     (d) To the fullest extent permitted by applicable law and subject to the provisions of
Section 13.11 of the Credit Agreement, each Pledgor agrees to indemnify, protect and save
harmless the Administrative Agent, the other Secured Parties and any controlling persons
thereof (within the meaning of the Securities Act) (the “Indemnified Parties”) from
and against any and all liabilities, suits, claims, costs and expenses (including counsel
fees and disbursements) arising under the Securities Act, the Exchange Act or at common law,
or pursuant to any other applicable law in connection with the aforesaid registration of
Pledged Collateral pledged by it, insofar as such liabilities, suits, claims, costs and
expenses arise out of, or are based upon, any untrue statement or alleged untrue statement
of a material fact contained in the aforesaid registration statement, or the aforesaid
registration statement as amended or supplemented, or arises out of, or is based upon, the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; PROVIDED FURTHER THAT IT IS THE
INTENTION OF THE PARTIES HERETO THAT THE INDEMNIFIED PARTIES BE INDEMNIFIED FOR LIABILITIES,
SUITS, CLAIMS, COSTS OR EXPENSES ARISING FROM THEIR OWN NEGLIGENCE; and provided
that such indemnity shall not, as to any Indemnified Party, be available to the extent that
such liabilities, suits, claims, costs or expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnified Party, (y) arises by reason of a claim
(A) by one or more Indemnified Parties against one or more other Indemnified Parties or (B)
by an owner of Equity Interest of an Indemnified Party against one or more other Indemnified
Parties, so



-12-









 







long as such claim is not proximately caused by a breach of or Default under a Loan
Document by any Borrower or any Restricted Subsidiary or (z) that arise out of, or are based
upon, any untrue statement or alleged untrue statement or omission or alleged omission made
in the aforesaid registration statement or the aforesaid registration statement as amended
or supplemented, in reliance upon and in conformity with written information furnished to
such Pledgor by the Administrative Agent or such other Secured Party specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any liability that
such Pledgor may otherwise have to the Administrative Agent and any such other Secured
Party, or any such controlling person.



          SECTION 14. Interest. Each Pledgor agrees to pay interest on any expenses or
other sums due to the Administrative Agent and the other Secured Parties hereunder that are not
paid when due at a rate per annum equal to the lesser of (i) the Highest Lawful Rate or (ii) 2%
above the CB Floating Rate.




          SECTION 15. Amendments, Etc. No amendment of any provision of this Agreement nor
consent to any departure by any Pledgor herefrom shall in any event be effective unless the same
shall be in writing and signed by the Borrower, the Pledgor and any other parties, if any, required
to sign under the Credit Agreement, and then such consent shall be effective only in the specific
instance and for the specific purpose for which given. No waiver of any provision of this Agreement
herefrom shall in any event be effective unless the same shall be in writing and signed by the
parties required to sign under the Credit Agreement, and then such waiver shall be effective only
in the specific instance and for the specific purpose for which given.




          SECTION 16. Addresses for Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing and, if to any Pledgor,
shall be delivered by hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile, addressed to it at the address of the Borrower specified in Section 13.2 of the
Credit Agreement; if to the Administrative Agent, shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile, addressed to it at the
address of the Administrative Agent specified in Section 13.2 of the Credit Agreement; or as to
each party at such other address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section 16. Notices sent by
hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to
have been given when received; notices sent by facsimile shall be deemed to have been given when
sent with confirmation of receipt (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). In the event of a discrepancy between any telephonic, to the extent telephonic
notice is permitted hereunder, and any written notice, the written notice shall control.




          SECTION 17. Security Interest Absolute. All rights of the Administrative Agent and
the other Secured Parties, all obligations of each Pledgor hereunder and the security interest
hereunder shall, to the extent permitted by applicable law, be absolute and unconditional,
irrespective of:



-13-









 









     (a) any lack of validity or enforceability of the Credit Agreement, the Letters of
Credit or any of the other Loan Documents executed in connection with the Credit Agreement;




     (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations or any other amendment or waiver of or any consent to any
departure from the Credit Agreement, the Letters of Credit or any of the other Loan
Documents executed in connection with the Credit Agreement;




     (c) any exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to departure from any guaranty, for all or any of the
Obligations; or




     (d) any other circumstance (other than payment in full of the Obligations) which might
otherwise constitute a defense available to, or a discharge of, any Pledgor, the Borrower,
any Subsidiary Borrower, any Guarantor or any Subsidiary that is a party to any Loan
Document executed in connection with the Credit Agreement.



          SECTION 18. Continuing Security Interest. This Agreement and the delivery of the
Pledged Collateral to the Administrative Agent shall create a continuing security interest in the
Pledged Collateral as security for the Obligations and shall (a) remain in full force and effect
until the expiration or termination of the Letters of Credit and the Commitments and the
indefeasible payment in full thereafter of the Obligations; (b) be binding upon each Pledgor and
its successors and assigns; and (c) inure to the benefit of the Administrative Agent, the other
Secured Parties and their respective successors and permitted assigns. Without limiting the
generality of the foregoing clause (c), the Administrative Agent and the Lenders may, subject to
Section 13.9 of the Credit Agreement, assign or otherwise transfer any of their respective rights
under this Agreement to any other Person, and such Person shall thereupon become vested with all
the benefits in respect thereof granted herein or otherwise to the Administrative Agent or the
Lenders, as the case may be. Upon the expiration or termination of the Letters of Credit and the
Commitments and the indefeasible payment in full thereafter of the Obligations, each Pledgor shall
be entitled to the return, upon its request and at its expense, of such of the Pledged Collateral
as shall not have been sold or otherwise applied pursuant to the terms hereof. Upon the release of
any Pledged Collateral as provided in Section 13.21 of the Credit Agreement, the Pledgor of such
Pledged Collateral shall be entitled to the return, upon its request and at its expense, of such
Pledged Collateral.




          SECTION 19. Waiver of Marshalling. All rights of marshalling of assets of any
Pledgor, including any such right with respect to the Pledged Collateral, are hereby waived by each
Pledgor.




          SECTION 20. Limitation by Law. All rights, remedies and powers provided in this
Agreement may be exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions of this Agreement are intended to be subject to
all applicable mandatory provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement invalid, unenforceable, in whole or


-14-









 







in part, or not entitled to be recorded, registered or filed under the provisions of any
applicable law.




          SECTION 21. Severability. Section 13.6 of the Credit Agreement is hereby incorporated
into this Agreement in its entirety and shall apply to this Agreement as fully as if set forth
herein.




          SECTION 22. Captions. The captions in this Agreement have been inserted for
convenience only and shall be given no substantive meaning or significance whatever in construing
the terms and provisions of this Agreement.




          SECTION 23. No Waiver; Remedies. No failure on the part of the Administrative Agent
or any other Secured Party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.




          SECTION 24. Execution in Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile transmission or electronic
submission (in .pdf form) shall be effective as delivery of an original manually executed
counterpart of this Agreement.




          SECTION 25. Survival of Representations and Warranties. All representations and
warranties contained in this Agreement or made in writing by or on behalf of any Pledgor in
connection herewith, shall survive the execution and delivery of this Agreement and shall continue
until 365 or 366 days, as the case may be, after the full repayment of the Obligations and the
expiration of the Letters of Credit. Any investigation by the Administrative Agent or any other
Secured Party shall not diminish in any respect whatsoever its right to rely on such
representations and warranties.




          SECTION 26. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. Sections 13.3,
13.15 and 13.16 of the Credit Agreement are hereby incorporated into this Agreement in its entirety
and shall apply to this Agreement as fully as if set forth herein.




          SECTION 27. Duty of Administrative Agent. The Administrative Agent’s sole duty with
respect to the custody, safekeeping and physical preservation of the Pledged Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same
manner as the Administrative Agent deals with similar property for its own account. To the fullest
extent provided by applicable law, neither the Administrative Agent, any other Secured Party nor
any of their respective officers, directors, employees or agents shall be liable for failure to
demand, collect or realize upon any of the Pledged Collateral or for any delay in doing so or shall
be under any obligation to sell or otherwise dispose of any Pledged Collateral upon the request of
any Pledgor or any other Person or to take any other action whatsoever with regard to the Pledged
Collateral or any part thereof. The powers conferred on the Administrative


-15-









 







Agent and the other Secured Parties hereunder are solely to protect the Administrative Agent’s
and the other Secured Parties’ interests in the Pledged Collateral and shall not impose any duty
upon the Administrative Agent or any other Secured Party to exercise any such powers. The
Administrative Agent and the other Secured Parties shall be accountable only for amounts that they
actually receive as a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Pledgor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.




          SECTION 28. Financing Statements. Pursuant to any applicable law, each Pledgor
authorizes the Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Pledged Collateral in such form and in such
offices as the Administrative Agent reasonably determines appropriate to perfect the security
interests of the Administrative Agent under this Agreement. Each Pledgor hereby ratifies and
authorizes the filing by the Administrative Agent of any financing statement with respect to the
Pledged Collateral made prior to the date hereof.




          SECTION 29. Authority of Administrative Agent. Each Pledgor acknowledges that the
rights and responsibilities of the Administrative Agent under this Agreement with respect to any
action taken by the Administrative Agent or the exercise or non-exercise by the Administrative
Agent of any option, voting right, request, judgment or other right or remedy provided for herein
or resulting or arising out of this Agreement shall, as between the Administrative Agent and the
other Secured Parties, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the Administrative Agent
and the Pledgors, the Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from acting, and no Pledgor
shall be under any obligation, or entitlement, to make any inquiry respecting such authority.




          SECTION 30. Additional Pledgors. Each Material Restricted Subsidiary of the Borrower
that is required to become a party to this Agreement pursuant to Section 9.7(b) of the Credit
Agreement shall become a Pledgor for all purposes of this Agreement upon execution and delivery by
such Subsidiary of a Pledge Agreement Supplement in the form of Annex 1 hereto.




[Signature Page Follows]






-16-









 







          IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above written.




	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature
Page to Pledge and Security Agreement




 









 








	 	 	 	 	 
	 	TMW MARKETING COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature
Page to Pledge and Security Agreement




 









 








	 	 	 	 	 
	 	TMW MERCHANTS LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature
Page to Pledge and Security Agreement




 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature
Page to Pledge and Security Agreement




 









 








	 	 	 	 	 
	 	ACKNOWLEDGED BY:



TMW MARKETING COMPANY, INC., as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TMW MERCHANTS LLC, as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TMW PURCHASING LLC, as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	K&G MEN’S COMPANY INC., as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOORES RETAIL GROUP INC., as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature
Page to Pledge and Security Agreement




 









 







SCHEDULE 1




TO



PLEDGE AND SECURITY AGREEMENT



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Class of	 	Stock	 	 	 	Number	 	 
	 	 	Stock/	 	Certificate	 	 	 	of Shares/	 	 
	Name of Issuer	 	Interest	 	No.	 	Par Value	 	% Interest	 	Holder
	TMW Marketing Company,
Inc.
	 	Common	 	N-1	 	No Par Value	 	100 shares	 	The Men’s Wearhouse, Inc.
	TMW Merchants LLC
	 	Member	 	Interest Not Certificated	 	 	 	100%	 	TMW Marketing Company, Inc.
	TMW Purchasing LLC
	 	Member	 	Interest Not Certificated	 	 	 	100%	 	TMW Merchants LLC
	K&G Men’s Company Inc.
	 	Common	 	2	 	$0.01	 	1,000 shares	 	The Men’s Wearhouse, Inc.
	Moores Retail Group Inc.
	 	Common	 	C-2003-1	 	No Par Value	 	1,625,040 shares	 	The Men’s Wearhouse, Inc.






Schedule 1, page 1





 









 








SCHEDULE 2




TO



PLEDGE AND SECURITY AGREEMENT



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Promissory	 	Date of	 	 	 	 
	Maker	 	Note	 	Promissory Note	 	Note Amount	 	Payee
	K&G Men’s Company Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	The Men’s Wearhouse, Inc.
	TMW Marketing Company,
Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	The Men’s Wearhouse, Inc.
	TMW Merchants LLC
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	The Men’s Wearhouse, Inc.
	TMW Purchasing LLC
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	The Men’s Wearhouse, Inc.
	Twin Hill Acquisition
Company, Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	The Men’s Wearhouse, Inc.
	Renwick Technologies,
Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	The Men’s Wearhouse, Inc.
	TMW Europe LLC
	 	Revolving	 	July 27, 2010	 	$	1,000,000,000	 	 	The Men’s Wearhouse, Inc.
	Moores Retail Group Inc.
	 	Term	 	August 4, 2010	 	$	81,250,000	 	 	The Men’s Wearhouse, Inc.
	Moores Retail Group Inc.
	 	Term	 	August 4, 2010	 	$	48,750,000	 	 	The Men’s Wearhouse, Inc.
	Dimensions Clothing
Limited
	 	Revolving	 	August 6, 2010	 	$	16,000,000	 	 	The Men’s Wearhouse, Inc.
	The Men’s Wearhouse, Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	K&G Men’s Company Inc.
	The Men’s Wearhouse, Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	TMW Marketing Company, Inc.
	The Men’s Wearhouse, Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	TMW Merchants LLC
	The Men’s Wearhouse, Inc.
	 	Revolving	 	January 28, 2005	 	$	1,000,000,000	 	 	TMW Purchasing LLC






Schedule 2, page 1






 









 








SCHEDULE 3




TO



PLEDGE AND SECURITY AGREEMENT



	 	 	 	 	 
	Pledgor and Corporate ID	 	Jurisdiction of Organization	 	Location of Chief Executive Office
	 
	 	 	 	 
	The Men’s Wearhouse, Inc.

	 	Texas
	 	Fremont, California
	(0034209900)
	 	 	 	 
	 
	 	 	 	 
	TMW Marketing Company, Inc.

	 	California
	 	Fremont, California
	(C2063772)
	 	 	 	 
	 
	 	 	 	 
	TMW Merchants LLC

	 	Delaware
	 	Houston, Texas
	(3150316)
	 	 	 	 






     Schedule 3, page 1



 









 





Annex 1 to




Pledge and Security Agreement




          PLEDGE AGREEMENT SUPPLEMENT, dated as of _______________, 20___, made by ____________________
(the “Additional Pledgor”), in favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent
(in such capacity, the “Administrative Agent”) for the lenders and other financial
institutions (the “Lenders”) from time to time party to the Credit Agreement referred to
below and the other Secured Parties (as defined in the Pledge Agreement referred to below). All
capitalized terms not defined herein shall have the meanings ascribed to them in such Credit
Agreement.




WITNESSETH:




          WHEREAS, The Men’s Wearhouse, Inc. (the “Borrower”), Moores The Suit People Inc., MWUK
Holding Company Limited, the Lenders, the Administrative Agent, JPMorgan Chase Bank, N.A., Toronto
Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as European Agent, have entered into
that certain Second Amended and Restated Credit Agreement dated as of January 26, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”);




          WHEREAS, in connection with the Credit Agreement, the Borrower and certain of its Affiliates
(other than the Additional Pledgor) have entered into that certain Pledge and Security Agreement,
dated as of January 26, 2011 (as amended, restated, supplemented or otherwise modified from time to
time, the “Pledge Agreement”) in favor of the Administrative Agent for the benefit of the
Secured Parties (as defined in the Pledge Agreement);




          WHEREAS, the Credit Agreement requires the Additional Pledgor to become a party to the Pledge
Agreement; and




          WHEREAS, the Additional Pledgor has agreed to execute and deliver this Pledge Agreement
Supplement in order to become a party to the Pledge Agreement;




          NOW, THEREFORE, IT IS AGREED:




          1. Pledge Agreement. By executing and delivering this Pledge Agreement Supplement,
the Additional Pledgor, as provided in Section 30 of the Pledge Agreement, hereby becomes a party
to the Pledge Agreement as a Pledgor thereunder with the same force and effect as if originally
named therein as a Pledgor and, without limiting the generality of the foregoing, hereby expressly
assumes all obligations and liabilities of a Pledgor thereunder. The information set forth in
Annex 1-A hereto is hereby added to the information set forth in the Schedules to the Pledge
Agreement. The Additional Pledgor hereby represents and warrants that each of the representations
and warranties contained in Section 5 of the Pledge Agreement made by it as a Pledgor thereunder is
true and correct on and as of the date hereof (after giving effect to this Pledge Agreement
Supplement) as if made on and as of such date, except for representations and warranties expressly
stated to relate to a specific earlier date, in which case such representations and warranties were
true and correct in all material respects as of such earlier date.




Annex 1, page 1




 









 








          2. Governing Law. THIS PLEDGE AGREEMENT SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement Supplement to be duly
executed and delivered as of the date first above written.




	 	 	 	 	 
	 	[ADDITIONAL PLEDGOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Annex 1, page 2




 









 








Annex 1-A to




Pledge Agreement Supplement




PLEDGED STOCK




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Stock	 	 	 	Number of	 	 
	Name of	 	Class of	 	Certificate	 	 	 	Shares/%	 	 
	Issuer	 	Stock/Interest	 	No.	 	Par Value	 	Interest	 	Holder
	 
	 	 	 	 	 	 	 	 	 	 





INFORMATION REGARDING ADDITIONAL PLEDGOR




	 	 	 	 	 
	 	 	 	 	Location of Chief Executive
	Pledgor and Corporate ID	 	Jurisdiction of Organization	 	Office
	 
	 	 	 	 





Annex
1, page 3





 











 





EXHIBIT C-1




FORM OF

PARENT GUARANTY AGREEMENT



[SEE FOLLOWING PAGES]



 









 





GUARANTY AGREEMENT




Dated as of January 26, 2011



From



THE MEN’S WEARHOUSE, INC.,



as Guarantor,



in favor of



THE SECURED PARTIES REFERRED TO HEREIN



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 1.
	 	Guaranty; Limitation of Liability	 	 	1	 
	Section 2.
	 	Guaranty Absolute	 	 	2	 
	Section 3.
	 	Waivers and Acknowledgments	 	 	3	 
	Section 4.
	 	Subrogation	 	 	4	 
	Section 5.
	 	Payments Free and Clear of Taxes, Etc.	 	 	4	 
	Section 6.
	 	Representations and Warranties	 	 	6	 
	Section 7.
	 	Amendments, Etc.	 	 	6	 
	Section 8.
	 	Notices, Etc.	 	 	6	 
	Section 9.
	 	No Waiver; Remedies	 	 	6	 
	Section 10.
	 	Right of Set off	 	 	7	 
	Section 11.
	 	Indemnification	 	 	7	 
	Section 12.
	 	Continuing Guaranty; Assignments Under the Credit Agreement	 	 	8	 
	Section 13.
	 	Severability	 	 	8	 
	Section 14.
	 	Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.	 	 	8	 
	Section 15.
	 	Entire Agreement	 	 	9	 






i









 






GUARANTY AGREEMENT




          GUARANTY AGREEMENT dated as of January 26, 2011 (this “Guaranty”) made by The Men’s
Wearhouse, Inc., a Texas corporation (the “Guarantor”), in favor of the Secured Parties (as defined
below).




PRELIMINARY STATEMENT




          The Guarantor, Moores The Suit People Inc., a corporation organized under the laws of the
Province of New Brunswick, Canada, and MWUK Holding Company Limited, a corporation organized under
the 2006 Companies Act of England and Wales, have entered into a Second Amended and Restated Credit
Agreement dated as of January 26, 2011 (said agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the “Credit Agreement”; the
capitalized terms defined therein and not otherwise defined herein being used herein as therein
defined) with the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as a Lender
and as Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent, and J.
P. Morgan Europe Limited, as European Agent. The Guarantor will derive substantial direct and
indirect benefit from the financing arrangements contemplated by the Loans to be made and the
Letters of Credit to be issued pursuant to the Credit Agreement. It is a condition precedent to
the making of the Loans and issuance of the Letters of Credit under the Credit Agreement that the
Guarantor shall have executed and delivered this Guaranty.




          NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make
the Loans and to induce the Issuing Bank to issue the Letters of Credit, the Guarantor, hereby
agrees as follows:




          Section 1. Guaranty; Limitation of Liability. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to the Secured Parties the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of the Subsidiary
Borrowers, now or hereafter existing, whether for principal, LC Exposure, interest, fees, expenses,
indemnification or otherwise (such Obligations being the “Guaranteed Obligations”), and,
subject to Sections 13.10 and 13.11 of the Credit Agreement, agrees to pay any and all expenses
(including counsel fees and expenses) incurred by the Administrative Agent or any other Secured
Party in enforcing any rights under this Guaranty. Without limiting the generality of the
foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and which would be owed by the Subsidiary Borrowers to the Administrative
Agent or any other Secured Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Subsidiary Borrowers. For purposes hereof, “Secured Parties”
means, collectively, the Administrative Agent, the Canadian Agent, the European Agent, the Lenders,
each Issuing Bank, the Swingline Bank and any other holder of Guaranteed Obligations.




          (a) The Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Secured Party hereby confirm that it is the intention of all such parties that this Guaranty
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law






 









 







and any other Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to this Guaranty. To
effectuate the foregoing intention, the obligations of the Guarantor under this Guaranty shall be
limited to the maximum amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of the Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or payments made by or
on behalf of the Guarantor in respect of its obligations under this Guaranty, result in the
obligations of the Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance. For purposes hereof, “Bankruptcy Law” means Title 11, U.S. Code, or any
similar Federal or state law for the relief of debtors.




          Section 2. Guaranty Absolute. The Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Agent or any Lender with respect thereto. The obligations of the
Guarantor under this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party (as defined below) under the Loan Documents, and a separate
action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Subsidiary Borrowers or any other Loan
Party or whether the Subsidiary Borrowers or any other Loan Party is joined in any such action or
actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now
or hereafter have in any way relating to, any or all of the following:





     (a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Guaranteed Obligations or any other Obligations of any Loan
Party under the Loan Documents, or any other amendment or waiver of or any consent
to departure from any Loan Document, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional credit to the
Subsidiary Borrowers or any of their respective Subsidiaries;




     (c) any taking, exchange, release or non-perfection of any collateral, or any
taking, release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Guaranteed Obligations;




     (d) any manner of application of collateral, or proceeds thereof, to all or any
of the Guaranteed Obligations, or any manner of sale or other disposition of any
collateral for all or any of the Guaranteed Obligations or any other Obligations of
any Loan Party under the Loan Documents or any other assets of any Loan Party or any
of its Subsidiaries;




     (e) any change, restructuring or termination of the corporate structure or
existence of any Loan Party or any of its Subsidiaries;



2









 






     (f) any failure of any Secured Party to disclose to the Subsidiary Borrowers or
the Guarantor any information relating to the financial condition, operations,
properties or prospects of any Loan Party now or in the future known to any Secured
Party (the Guarantor waiving any duty on the part of the Secured Parties to disclose
such information);




     (g) the failure of any other Person to execute any other guaranty or agreement
or the release or reduction of liability of any other guarantor or surety with
respect to the Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the
Administrative Agent or any other Secured Party that might otherwise constitute a
defense available to, or a discharge of, any of the Subsidiary Borrowers, the
Guarantor or any other guarantor or surety.


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made. For purposes
hereof, “Loan Parties” means, collectively, the Borrowers, the Pledgors and the Guarantor,
and a “Loan Party” means any one of them.




          Section 3. Waivers and Acknowledgments. The Guarantor hereby waives promptness,
diligence, notice of acceptance, presentment, demand for performance, protest, notice of
non-performance, default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative
Agent or any other Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party or any other Person
or any collateral.




          (a) The Guarantor hereby waives any right to revoke this Guaranty, and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or
in the future.




          (b) The Guarantor hereby waives (i) any defense arising by reason of any claim or defense
based upon an election of remedies by the Administrative Agent or the other Secured Parties which
in any manner impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the Guarantor or any other
rights of the Guarantor to proceed against any of the other Loan Parties, or any other Person or
any collateral and (ii) any defense based on any right of set-off or counterclaim against or in
respect of the obligations of the Guarantor under this Guaranty.




          (c) The Guarantor acknowledges that the Administrative Agent may, without notice to or demand
upon the Guarantor and without affecting the liability of the Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and the Guarantor hereby waives any defense to
the recovery by the Administrative Agent and the other Secured Parties






3









 







against the Guarantor of any deficiency after such nonjudicial sale and any defense or
benefits that may be afforded by applicable law.




          (d) The Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loans to be made and Letters of Credit to be
issued pursuant to the Credit Agreement and that the waivers set forth in Section 2 and this
Section 3 are knowingly made in contemplation of such benefits.




          Section 4. Subrogation. The Guarantor will not exercise any rights that it may now or
hereafter acquire against any one or more of the Subsidiary Borrowers or other Guarantors that
arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under
this Guaranty or any other Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Secured Party against any one or more of the Subsidiary Borrowers or other
Guarantors or any collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to take or receive from
any one or more of the Subsidiary Borrowers or other Guarantors, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable
under this Guaranty shall have been paid in full in cash, the Commitments shall have expired or
terminated and all Letters of Credit shall have expired. If any amount shall be paid to the
Guarantor in violation of the preceding sentence at any time prior to the later of (i) the payment
in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty,
(ii) the termination in whole of the Commitments pursuant to the Credit Agreement, and (iii) the
expiry of all Letters of Credit (the “Termination Date”), such amount shall be held in
trust for the benefit of the Secured Parties and shall forthwith be paid to the Administrative
Agent to be credited and applied to the Guaranteed Obligations and all other amounts payable under
this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents, or
to be held as collateral for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If (i) the Guarantor shall make payment to the Administrative Agent
or any other Secured Party of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all amounts payable under this Guaranty shall be paid in full in cash,
and (iii) the Termination Date shall have occurred, the Administrative Agent and the other Secured
Parties will, at the Guarantor’s request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by the Guarantor.




          Section 5. Payments Free and Clear of Taxes, Etc. Any and all payments by the
Guarantor hereunder to or for the account of any Secured Party shall be made free and clear of and
without deduction for Indemnified Taxes or Other Taxes. Subject to Sections 13.10 and 13.11 of the
Credit Agreement, if the Guarantor shall be required by Law to deduct any Indemnified Taxes or
Other Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any
Secured Party, (i) the sum payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums payable under this Section
5), such Secured Party receives an amount equal to






4









 







the sum it would have received had no such deductions been made, (ii) the Guarantor shall make
such deductions, (iii) the Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Law and (iv) the Guarantor shall confirm
that all applicable Indemnified Taxes and Other Taxes, if any, imposed on it by virtue of the
transactions under this Guaranty have been properly and legally paid by it to the appropriate
taxation authority or other authority by sending official tax receipts or certified copies of such
receipts to such Secured Party within thirty (30) days after payment of any applicable tax.




          (a) In addition, the Guarantor agrees to timely pay any and all Other Taxes to the relevant
Governmental Authority in accordance with applicable Law, to the extent such Other Taxes are
imposed on the Guarantor under applicable Law.




          (b) The Guarantor will indemnify each Secured Party for the full amount of Indemnified Taxes
or Other Taxes (including, without limitation, any Indemnified Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 5) paid by such Secured Party on or with respect
to any payment by or on account of any obligation of the Guarantor hereunder or under any other
Loan Document and any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty (30) days from the date such
Secured Party makes written demand therefor. A certificate as to the amount of such payment or
liability delivered to the Guarantor by a Secured Party (with a copy to the Administrative Agent,
if applicable) or by any Applicable Agent on its own behalf on or behalf of a Secured Party shall
be conclusive absent manifest error. Notwithstanding anything herein to the contrary, no Secured
Party shall be indemnified for any Indemnified Taxes or Other Taxes pursuant to this Section unless
such Secured Party shall make written demand on the Guarantor for such reimbursement no later than
six months after the earlier of (i) the date on which the relevant taxing authority makes written
demand upon such Person for such Indemnified Taxes or Other Taxes, or (ii) the date on which such
Person has made payment of such Indemnified Taxes or Other Taxes; provided that if the
Indemnified Taxes or Other Taxes imposed or giving rise to such claims are retroactive, then the
six-month period referred to in this Section shall be extended to include the period of retroactive
effect thereof.




          (c) Each Secured Party agrees to provide the documents described in Section 4.8(e) of the
Credit Agreement to the Guarantor at the time or times prescribed by applicable Law or as requested
by the Guarantor. For any period with respect to which a Secured Party has failed to provide the
Guarantor with the appropriate form pursuant to Section 4.8(e) of the Credit Agreement (unless such
failure is due to a change in treaty, Law, or regulation occurring subsequent to the date on which
a form originally was required to be provided), such Secured Party shall not be entitled to
indemnification under this Section 5 with respect to Indemnified Taxes imposed in excess of the
amount of Indemnified Taxes that would have been imposed had such Secured Party provided the
appropriate form; provided, that should a Secured Party, which is otherwise exempt from or
subject to a reduced rate of withholding Tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Guarantor agrees to take such steps as such Secured Party
shall reasonably request to assist such Secured Party to recover such Taxes.







5









 








          (d) Within thirty (30) days after the date of any deduction of taxes, deductions, charges or
withholdings from any payments by the Guarantor hereunder or under any other Loan Document, the
Guarantor shall furnish to the Administrative Agent the original or a certified copy of a receipt
evidencing the payment by the Guarantor to the appropriate taxation authority or other authority of
the amount so deducted.




          (e) Without prejudice to the survival of any other agreement of the Guarantor hereunder, the
agreement and obligations of the Guarantor contained in this Section 5 shall survive the payment in
full of the Guaranteed Obligations and all other amounts payable under this Guaranty.




          (f) If a Secured Party determines, in its sole discretion, that it has received a refund of
any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Guarantor or with
respect to which the Guarantor has paid additional amounts pursuant to this Section 5, it shall pay
to the Guarantor an amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Guarantor under this Section 5 with respect to the Indemnified
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Secured
Party, and without interest (other than any interest received by such Secured Party from the
relevant Governmental Authority with respect to such refund), provided that the Guarantor, upon the
request of the Secured Party, agrees to repay the amount paid over to the Guarantor (plus any and
all penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Secured Party in the event the Secured Party is required to repay such refund to such Governmental
Authority.




          Section 6. Representations and Warranties.




          (a) There are no conditions precedent to the effectiveness of this Guaranty that have not been
satisfied or waived.




          (b) The Guarantor has, independently and without reliance upon the Administrative Agent or any
other Secured Party, and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Guaranty, and the Guarantor has established
adequate means of obtaining from any other Loan Parties on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of such other Loan Parties.




          Section 7. Amendments, Etc. No amendment of any provision of this Guaranty and no
consent to any departure by the Guarantor therefrom shall in any event be effective unless the same
shall be given in accordance with the Credit Agreement, in writing and signed by the Administrative
Agent, the Guarantor and any other parties, if any, required to sign under the Credit Agreement,
and then such amendment or consent shall be effective only in the specific instance and for the
specific purpose for which given; no waiver of any provision of this Guaranty shall in any event be
effective unless the same shall be given in accordance with the Credit Agreement, in writing and
signed by the Administrative Agent any other parties, if any, required to sign under the Credit
Agreement, and then such waiver shall be effective only in the specific instance and for the
specific purpose for which given; provided that no amendment,






6









 







waiver or consent shall, unless in writing and signed by all of the Secured Parties, (i)
except as provided in Section 13.21 of the Credit Agreement, reduce or limit the liability of the
Guarantor hereunder or release the Guarantor hereunder, (ii) postpone any date fixed for any
payment of amounts due hereunder or (iii) change the number of Secured Parties required to take any
action hereunder.




          Section 8. Notices, Etc. All notices and other communications provided for hereunder
shall be in writing and mailed, telegraphed, telecopied, telexed or delivered to it, if to the
Guarantor, addressed to it at the address of the Borrower specified in the Credit Agreement, if to
the Administrative Agent, the Canadian Agent, the European Agent, the Issuing Bank, the Swingline
Bank or any Lender, at its address specified in the Credit Agreement, or as to any party at such
other address as shall be designated by such party in a written notice to each other party.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have been
given when sent with confirmation of receipt (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of business on the next
business day for the recipient). Delivery of an executed counterpart of a signature page of this
Guaranty by facsimile transmission or electronic submission (in .pdf form) shall be effective as
delivery of an original manually executed counterpart of this Guaranty.




          Section 9. No Waiver; Remedies. No failure on the part of any Agent or any other
Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.




          Section 10. Right of Set off. Upon (a) the occurrence and during the continuance of
any Event of Default and (b) pursuant to Article XI of the Credit Agreement, (i) the making by the
Majority Lenders of the request to authorize, or (ii) the consenting by the Majority Lenders
authorizing, the Administrative Agent to declare the Loans due and payable pursuant to the
provisions of said Article XI, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account
of the Guarantor against any and all of the obligations of the Guarantor now or hereafter existing
under this Guaranty, whether or not such Lender shall have made any demand under this Guaranty.
Each Lender shall promptly notify the Guarantor after any such set off and application;
provided that if any Defaulting Lender shall exercise any such right of setoff, (x) all
amounts so setoff shall be paid over immediately to the Administrative Agent for further
application and/or cash collateralization pursuant to Section 4.7 of the Credit Agreement and,
pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed
held in trust for the benefit of the Borrower as therein provided, and (y) such Defaulting Lender
shall promptly provide to the Administrative Agent a statement describing in reasonable detail the
obligations owing to such Defaulting Lender as to which it exercised such right of setoff;
provided further that the failure to give such notice shall not affect the validity of such
set off and application. The rights of each Lender and its affiliates under this Section are in
addition






7









 







to other rights and remedies (including, without limitation, other rights of set off) that
such Lender and its affiliates may have.




          Section 11. Indemnification. WITHOUT LIMITATION OF ANY OTHER OBLIGATIONS OF THE
GUARANTOR OR REMEDIES OF THE SECURED PARTIES UNDER THIS GUARANTY, THE GUARANTOR SHALL, TO THE
FULLEST EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND AND SAVE AND HOLD HARMLESS THE ADMINISTRATIVE
AGENT AND EACH OF THE OTHER SECURED PARTIES FROM AND AGAINST, AND SHALL PAY ON DEMAND, ANY AND ALL
CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, EXPENSES AND CHARGES (INCLUDING, WITHOUT LIMITATION,
REASONABLE FEES, DISBURSEMENTS AND OTHER CHARGES OF COUNSEL) THAT MAY BE INCURRED BY OR ASSERTED OR
AWARDED AGAINST SUCH SECURED PARTY AS A RESULT OF ANY FAILURE OF ANY GUARANTEED OBLIGATIONS TO BE
THE LEGAL, VALID AND BINDING OBLIGATIONS OF ANY LOAN PARTY ENFORCEABLE AGAINST SUCH LOAN PARTY IN
ACCORDANCE WITH THEIR TERMS.




          (a) EACH OF THE PARTIES HERETO HEREBY SEVERALLY AGREES NOT TO ASSERT ANY CLAIM AGAINST ANY
AGENT, ANY OTHER PARTY HERETO, ANY OF THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, AND ADVISERS, ON ANY THEORY OF LIABILITY, FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THIS GUARANTY
OR THE OTHER LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN OR THE ACTUAL
OR PROPOSED USE OF THE PROCEEDS OF THE REVOLVING LOANS OR THE LETTERS OF CREDIT.




          (b) Without prejudice to the survival of any of the other agreements of the Guarantor under
this Guaranty or any of the other Loan Documents, the agreements and obligations of the Guarantor
contained in Section 1(a) (with respect to enforcement expenses), the last sentence of Section 2,
Section 5 and this Section 11 shall survive the payment in full of the Guaranteed Obligations and
all of the other amounts payable under this Guaranty.




          Section 12. Continuing Guaranty; Assignments Under the Credit Agreement. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of
(i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under
this Guaranty and (ii) the Termination Date, (b) be binding upon the Guarantor, its permitted
successors and assigns and (c) inure to the benefit of and be enforceable by the Administrative
Agent and the other Secured Parties and their successors, transferees and permitted assigns.
Without limiting the generality of the foregoing clause (c), any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitment, the Loans owing to it and the
promissory note or notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Secured Party herein or
otherwise, in each case as and to the extent provided in Section 13.9 of the Credit Agreement. No
Guarantor shall have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Secured Parties.







8









 








          Section 13. Severability. Section 13.6 of the Credit Agreement is hereby incorporated
into this Agreement in its entirety and shall apply to this Agreement as fully as if set forth
herein.




          Section 14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. Sections 13.3,
13.15 and 13.16 of the Credit Agreement are hereby incorporated into this Agreement in its entirety
and shall apply to this Agreement as fully as if set forth herein.




          Section 15. Entire Agreement. THIS GUARANTY, THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE AGENTS, THE LENDERS AND THE
OTHER RESPECTIVE PARTIES HERETO AND THERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES. ANY CONFLICT OR AMBIGUITY BETWEEN THE TERMS AND PROVISIONS OF
THIS GUARANTY AND THE TERMS AND PROVISIONS OF ANY OTHER LOAN DOCUMENT SHALL BE CONTROLLED BY THE
TERMS AND PROVISIONS HEREOF.




(Signature pages to follow)





9









 








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




	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Guaranty Agreement]

















 





EXHIBIT C-2




FORM OF

SUBSIDIARY GUARANTY AGREEMENT



[SEE FOLLOWING PAGES]








 









 








SUBSIDIARY GUARANTY AGREEMENT




Dated as of January 26, 2011



From



THE GUARANTORS NAMED HEREIN



and



THE ADDITIONAL GUARANTORS REFERRED TO HEREIN,



as Guarantors,



in favor of



THE SECURED PARTIES REFERRED TO HEREIN








 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 1.

	 	Guaranty; Limitation of Liability
	 	 	1	 
	Section 2.

	 	Guaranty Absolute
	 	 	2	 
	Section 3.

	 	Waivers and Acknowledgments
	 	 	3	 
	Section 4.

	 	Subrogation
	 	 	4	 
	Section 5.

	 	Payments Free and Clear of Taxes,
Etc.
	 	 	5	 
	Section 6.

	 	Representations and Warranties
	 	 	6	 
	Section 7.

	 	Covenants
	 	 	6	 
	Section 8.

	 	Amendments, Etc.
	 	 	6	 
	Section 9.

	 	Notices, Etc.
	 	 	7	 
	Section 10.

	 	No Waiver; Remedies
	 	 	7	 
	Section 11.

	 	Right of Set off
	 	 	7	 
	Section 12.

	 	Indemnification
	 	 	8	 
	Section 13.

	 	Continuing Guaranty; Assignments Under the Credit
Agreement; Release of Guarantors
	 	 	8	 
	Section 14.

	 	Execution in Counterparts; Effectiveness
	 	 	9	 
	Section 15.

	 	Severability
	 	 	9	 
	Section 16.

	 	Governing Law; Jurisdiction; Waiver
of Jury Trial, Etc.
	 	 	9	 
	Section 17.

	 	Entire Agreement
	 	 	10	 
	Annex A — Subsidiary Guaranty Agreement Supplement















i









 








SUBSIDIARY GUARANTY AGREEMENT




          SUBSIDIARY GUARANTY AGREEMENT dated as of January 26, 2011 (this “Guaranty”) made by
the Persons listed on the signature pages hereto under the caption “Guarantors” and the Additional
Guarantors (as defined in Section 8(b)) (such Persons so listed and the Additional Guarantors
being, collectively, the “Guarantors”), in favor of the Secured Parties (as defined below).




PRELIMINARY STATEMENT




          The Men’s Wearhouse, Inc., a Texas corporation (the “Borrower”), Moores The Suit
People Inc., a corporation organized under the laws of the Province of New Brunswick, Canada, and
MWUK Holding Company Limited, a corporation organized under the 2006 Companies Act of England and
Wales, have entered into a Second Amended and Restated Credit Agreement dated as of January 26,
2011 (said agreement, as it may hereafter be amended, supplemented or otherwise modified from time
to time, being the “Credit Agreement”; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined) with the Lenders from time to time
party thereto, JPMorgan Chase Bank, N.A., as a Lender and as Administrative Agent, JPMorgan Chase
Bank, N.A., Toronto Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as European Agent.
Each Guarantor will derive substantial direct and indirect benefit from the financing arrangements
contemplated by the Loans to be made and the Letters of Credit to be issued pursuant to the Credit
Agreement. It is a condition precedent to the making of the Loans and issuance of the Letters of
Credit under the Credit Agreement that each Guarantor shall have executed and delivered this
Guaranty.




          NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make
the Loans and to induce the Issuing Bank to issue the Letters of Credit, each Guarantor, jointly
and severally with each other Guarantor, hereby agrees as follows:




          Section 1. Guaranty; Limitation of Liability. Each Guarantor, jointly and severally,
hereby absolutely, unconditionally and irrevocably guarantees to the Secured Parties the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of all Obligations of
the Borrower, now or hereafter existing, whether for principal, LC Exposure, interest, fees,
expenses, indemnification or otherwise (such Obligations being the “Guaranteed
Obligations”), and, subject to Sections 13.10 and 13.11 of the Credit Agreement, agrees to pay
any and all expenses (including counsel fees and expenses) incurred by the Administrative Agent or
any other Secured Party in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and which would be owed by the Borrower to the Administrative
Agent or any other Secured Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower. For purposes hereof, “Secured Parties” means,
collectively, the Administrative Agent, the Canadian Agent, the European Agent, the Lenders, each
Issuing Bank, the Swingline Bank and any other holder of Guaranteed Obligations.




          (a) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Secured Party hereby confirm that it is the intention of all






 









 







such parties that this Guaranty not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law and any other Debtor Relief Law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to
this Guaranty. To effectuate the foregoing intention, the obligations of each Guarantor under this
Guaranty shall be limited to the maximum amount as will, after giving effect to such maximum amount
and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor
under this Guaranty or any other guaranty, result in the obligations of such Guarantor under this
Guaranty not constituting a fraudulent transfer or conveyance. For purposes hereof,
“Bankruptcy Law” means Title 11, U.S. Code, or any similar Federal or state law for the
relief of debtors.




          (b) Each Guarantor agrees that in the event any payment shall be required to be made to the
Administrative Agent or any of the Secured Parties under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor so as to maximize the aggregate amount paid to the Secured Parties under the Loan
Documents.




          Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Agent or any Lender with respect thereto. The obligations of each
Guarantor under this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party (as defined below) under the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any or all of the following:





     (a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Guaranteed Obligations or any other Obligations of any Loan
Party under the Loan Documents, or any other amendment or waiver of or any consent
to departure from any Loan Document, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional credit to the
Borrower or any of its Subsidiaries;




     (c) any taking, exchange, release or non-perfection of any collateral, or any
taking, release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Guaranteed Obligations;



2









 






     (d) any manner of application of collateral, or proceeds thereof, to all or any
of the Guaranteed Obligations, or any manner of sale or other disposition of any
collateral for all or any of the Guaranteed Obligations or any other Obligations of
any Loan Party under the Loan Documents or any other assets of any Loan Party or any
of its Subsidiaries;




     (e) any change, restructuring or termination of the corporate structure or
existence of any Loan Party or any of its Subsidiaries;




     (f) any failure of any Secured Party to disclose to the Borrower or any
Guarantor any information relating to the financial condition, operations,
properties or prospects of any Loan Party now or in the future known to any Secured
Party (each Guarantor waiving any duty on the part of the Secured Parties to
disclose such information);




     (g) the failure of any other Person to execute this Guaranty or any other
guaranty or agreement or the release or reduction of liability of any Guarantor or
other guarantor or surety with respect to the Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the
Administrative Agent or any other Secured Party that might otherwise constitute a
defense available to, or a discharge of, the Borrower, any Guarantor or any other
guarantor or surety.


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made. For purposes
hereof, “Loan Parties” means, collectively, the Borrowers, the Pledgors and the Guarantors,
and a “Loan Party” means any one of them.




          Section 3. Waivers and Acknowledgments. Each Guarantor hereby waives promptness,
diligence, notice of acceptance, presentment, demand for performance, protest, notice of
non-performance, default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative
Agent or any other Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party or any other Person
or any collateral.




          (a) Each Guarantor hereby waives any right to revoke this Guaranty, and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or
in the future.




          (b) Each Guarantor hereby waives (i) any defense arising by reason of any claim or defense
based upon an election of remedies by the Administrative Agent or the other Secured Parties which
in any manner impairs, reduces, releases or otherwise adversely affects






3









 







the subrogation, reimbursement, exoneration, contribution or indemnification rights of such
Guarantor or any other rights of such Guarantor to proceed against any of the other Loan Parties or
any other Person or any collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the obligations of such Guarantor under this Guaranty.




          (c) Each Guarantor acknowledges that the Administrative Agent may, without notice to or demand
upon such Guarantor and without affecting the liability of each Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to
the recovery by the Administrative Agent and the other Secured Parties against such Guarantor of
any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.




          (d) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loans to be made and Letters of Credit to be
issued pursuant to the Credit Agreement and that the waivers set forth in Section 2 and this
Section 3 are knowingly made in contemplation of such benefits.




          Section 4. Subrogation. No Guarantor will exercise any rights that it may now or
hereafter acquire against the Borrower or any other Guarantor that arise from the existence,
payment, performance or enforcement of such Guarantor’s obligations under this Guaranty or any
other Loan Document, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any claim or remedy of
any Secured Party against the Borrower or any other Guarantor or any collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower or any other Guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in cash, the Commitments
shall have expired or terminated and all Letters of Credit shall have expired. If any amount shall
be paid to any Guarantor in violation of the preceding sentence at any time prior to the later of
(i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under
this Guaranty, (ii) the termination in whole of the Commitments pursuant to the Credit Agreement,
and (iii) the expiry of all Letters of Credit (the “Termination Date”), such amount shall
be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as collateral for any Guaranteed Obligations or other amounts payable
under this Guaranty thereafter arising. If (i) any Guarantor shall make payment to the
Administrative Agent or any other Secured Party of all or any part of the Guaranteed Obligations,
(ii) all of the Guaranteed Obligations and all amounts payable under this Guaranty shall be paid in
full in cash, and (iii) the Termination Date shall have occurred, the Administrative Agent and the
other Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such
Guarantor appropriate documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor.







4









 








          Section 5. Payments Free and Clear of Taxes, Etc. Any and all payments by any
Guarantor hereunder to or for the account of any Secured Party shall be made free and clear of and
without deduction for Indemnified Taxes or Other Taxes. Subject to Sections 13.10 and 13.11 of the
Credit Agreement, if any Guarantor shall be required by Law to deduct any Indemnified Taxes or
Other Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any
Secured Party, (i) the sum payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums payable under this Section
5), such Secured Party receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make such deductions, (iii) such Guarantor shall
pay the full amount deducted to the relevant taxation authority or other authority in accordance
with applicable Law and (iv) such Guarantor shall confirm that all applicable Indemnified Taxes and
Other Taxes, if any, imposed on it by virtue of the transactions under this Guaranty have been
properly and legally paid by it to the appropriate taxation authority or other authority by sending
official tax receipts or certified copies of such receipts to such Secured Party within thirty (30)
days after payment of any applicable tax.




          (a) In addition, each Guarantor agrees to timely pay any and all Other Taxes to the relevant
Governmental Authority in accordance with applicable Law, to the extent such Other Taxes are
imposed on such Guarantor under applicable Law.




          (b) Each Guarantor will indemnify each Secured Party for the full amount of Indemnified Taxes
or Other Taxes (including, without limitation, any Indemnified Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 5) paid by such Secured Party on or with respect
to any payment by or on account of any obligation of such Guarantor hereunder or under any other
Loan Document and any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty (30) days from the date such
Secured Party makes written demand therefor. A certificate as to the amount of such payment or
liability delivered to each Guarantor by a Secured Party (with a copy to the Administrative Agent,
if applicable) or by any Applicable Agent on its own behalf on or behalf of a Secured Party shall
be conclusive absent manifest error. Notwithstanding anything herein to the contrary, no Secured
Party shall be indemnified for any Indemnified Taxes or Other Taxes pursuant to this Section unless
such Secured Party shall make written demand on any Guarantor for such reimbursement no later than
six months after the earlier of (i) the date on which the relevant taxing authority makes written
demand upon such Person for such Indemnified Taxes or Other Taxes, or (ii) the date on which such
Person has made payment of such Indemnified Taxes or Other Taxes; provided that if the
Indemnified Taxes or Other Taxes imposed or giving rise to such claims are retroactive, then the
six-month period referred to in this Section shall be extended to include the period of retroactive
effect thereof.




          (c) Each Secured Party agrees to provide the documents described in Section 4.8(e) of the
Credit Agreement to any Guarantor at the time or times prescribed by applicable Law or as requested
by any Guarantor. For any period with respect to which a Secured Party has failed to provide any
Guarantor with the appropriate form pursuant to Section 4.8(e) of the Credit Agreement (unless such
failure is due to a change in treaty, Law, or






5









 







regulation occurring
subsequent to the date on which a form originally was required to be provided), such Secured
Party shall not be entitled to indemnification under this Section 5 with respect to Indemnified
Taxes imposed in excess of the amount of Indemnified Taxes that would have been imposed had such
Secured Party provided the appropriate form; provided, that should a Secured Party, which
is otherwise exempt from or subject to a reduced rate of withholding Tax, become subject to Taxes
because of its failure to deliver a form required hereunder, each Guarantor agrees to take such
steps as such Secured Party shall reasonably request to assist such Secured Party to recover such
Taxes.




          (d) Within thirty (30) days after the date of any deduction of taxes, deductions, charges or
withholdings from any payments by any Guarantor hereunder or under any other Loan Document, each
Guarantor shall furnish to the Administrative Agent the original or a certified copy of a receipt
evidencing the payment by the Guarantor to the appropriate taxation authority or other authority of
the amount so deducted.




          (e) Without prejudice to the survival of any other agreement of any Guarantor hereunder, the
agreement and obligations of each Guarantor contained in this Section 5 shall survive the payment
in full of the Guaranteed Obligations and all other amounts payable under this Guaranty.




          (f) If a Secured Party determines, in its sole discretion, that it has received a refund of
any Indemnified Taxes or Other Taxes as to which it has been indemnified by any Guarantor or with
respect to which any Guarantor has paid additional amounts pursuant to this Section 5, it shall pay
to such Guarantor an amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by such Guarantor under this Section 5 with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Secured Party, and without interest (other than any interest received by such Secured Party
from the relevant Governmental Authority with respect to such refund), provided that any Guarantor,
upon the request of the Secured Party, agrees to repay the amount paid over to such Guarantor (plus
any and all penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Secured Party in the event the Secured Party is required to repay such refund to such
Governmental Authority.




          Section 6. Representations and Warranties.




          (a) Each Guarantor hereby makes, as applicable, each representation and warranty made in the
Loan Documents by the Borrower with respect to such Guarantor.




          (b) There are no conditions precedent to the effectiveness of this Guaranty as to each
Guarantor that have not been satisfied or waived.




          (c) Each Guarantor has, independently and without reliance upon the Administrative Agent or
any other Secured Party, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Guaranty, and such Guarantor has
established adequate means of obtaining from any other Loan Parties on a continuing basis
information pertaining to, and is now and on a continuing basis will






6









 







be completely familiar with, the financial condition, operations, properties and prospects of
such other Loan Parties.




          Section 7. Covenants. Each Guarantor covenants and agrees that, so long as any part
of the Guaranteed Obligations shall remain unpaid and any Lender shall have any Commitment, such
Guarantor will perform or observe, and cause each of its Subsidiaries to perform or observe, all of
the terms, covenants and agreements that the Loan Documents state that the Borrower is to cause
such Guarantor or such Subsidiaries to perform or observe.




          Section 8. Amendments, Etc. No amendment of any provision of this Guaranty and no
consent to any departure by the Guarantor therefrom shall in any event be effective unless the same
shall be given in accordance with the Credit Agreement, in writing and signed by the Administrative
Agent, the Guarantor and any other parties, if any, required under the Credit Agreement, and then
such amendment or consent shall be effective only in the specific instance and for the specific
purpose for which given; no waiver of any provision of this Guaranty shall in any event be
effective unless the same shall be given in accordance with the Credit Agreement, in writing and
signed by the Administrative Agent and any other parties, if any, required to sign under the Credit
Agreement, and then such waiver shall be effective only in the specific instance and for the
specific purpose for which given; provided that no amendment, waiver or consent shall,
unless in writing and signed by all of the Secured Parties, (i) except as provided in Section 13.21
of the Credit Agreement, reduce or limit the liability of such Guarantor hereunder or release any
Guarantor hereunder, (ii) postpone any date fixed for any payment of amounts due hereunder or (iii)
change the number of Secured Parties required to take any action hereunder.




          (a) Upon the execution and delivery by any Person of a guaranty agreement supplement in
substantially the form of Annex A hereto (each, a “Subsidiary Guaranty Agreement
Supplement”), (i) such Person shall be referred to as an “Additional Guarantor” and
shall be and become a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor”
shall also mean and be a reference to such Additional Guarantor and each reference in any other
Loan Document to a “Guarantor” shall also mean and be a reference to such Additional Guarantor and
(ii) each reference herein to this “Guaranty” and in any other Loan Document to the “Guaranty
Agreement” shall mean and be a reference to this Guaranty as supplemented by such Subsidiary
Guaranty Agreement Supplement.




          Section 9. Notices, Etc. All notices and other communications provided for hereunder
shall be in writing and mailed, telegraphed, telecopied, telexed or delivered to it, if to any
Guarantor, addressed to it at the address of the Borrower specified in the Credit Agreement, if to
the Administrative Agent, the Canadian Agent, the European Agent, the Issuing Bank, the Swingline
Bank or any Lender, at its address specified in the Credit Agreement, or as to any party at such
other address as shall be designated by such party in a written notice to each other party.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have been
given when sent with confirmation of receipt (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of business on the next
business day for the recipient). Delivery of an executed counterpart of a signature page of this
Guaranty by facsimile transmission or electronic






7









 







submission (in .pdf form) shall be effective as delivery of an original manually executed
counterpart of this Guaranty.




          Section 10. No Waiver; Remedies. No failure on the part of any Agent or any other
Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.




          Section 11. Right of Set off. Upon (a) the occurrence and during the continuance of
any Event of Default and (b) pursuant to Article XI of the Credit Agreement, (i) the making by the
Majority Lenders of the request to authorize, or (ii) the consenting by the Majority Lenders
authorizing, the Administrative Agent to declare the Loans due and payable pursuant to the
provisions of said Article XI, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account
of any Guarantor against any and all of the obligations of such Guarantor now or hereafter existing
under this Guaranty, whether or not such Lender shall have made any demand under this Guaranty.
Each Lender shall promptly notify such Guarantor after any such set off and application;
provided that if any Defaulting Lender shall exercise any such right of setoff, (x) all
amounts so setoff shall be paid over immediately to the Administrative Agent for further
application and/or cash collateralization pursuant to Section 4.7 of the Credit Agreement and,
pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed
held in trust for the benefit of the Borrower as therein provided, and (y) such Defaulting Lender
shall promptly provide to the Administrative Agent a statement describing in reasonable detail the
obligations owing to such Defaulting Lender as to which it exercised such right of setoff;
provided further that the failure to give such notice shall not affect the validity of such
set off and application. The rights of each Lender and its affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other rights of set off) that
such Lender and its affiliates may have.




          Section 12. Indemnification. WITHOUT LIMITATION OF ANY OTHER OBLIGATIONS OF ANY
GUARANTOR OR REMEDIES OF THE SECURED PARTIES UNDER THIS GUARANTY, EACH GUARANTOR SHALL, TO THE
FULLEST EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND AND SAVE AND HOLD HARMLESS THE ADMINISTRATIVE
AGENT AND EACH OF THE OTHER SECURED PARTIES FROM AND AGAINST, AND SHALL PAY ON DEMAND, ANY AND ALL
CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, EXPENSES AND CHARGES (INCLUDING, WITHOUT LIMITATION,
REASONABLE FEES, DISBURSEMENTS AND OTHER CHARGES OF COUNSEL) THAT MAY BE INCURRED BY OR ASSERTED OR
AWARDED AGAINST SUCH SECURED PARTY AS A RESULT OF ANY FAILURE OF ANY GUARANTEED OBLIGATIONS TO BE
THE LEGAL, VALID AND BINDING OBLIGATIONS OF ANY LOAN PARTY ENFORCEABLE AGAINST SUCH LOAN PARTY IN
ACCORDANCE WITH THEIR TERMS.







8









 








          (a) EACH OF THE PARTIES HERETO HEREBY SEVERALLY AGREES NOT TO ASSERT ANY CLAIM AGAINST ANY
AGENT, ANY OTHER PARTY HERETO, ANY OF THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, AND ADVISERS, ON ANY THEORY OF LIABILITY, FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THIS GUARANTY
OR THE OTHER LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN OR THE ACTUAL
OR PROPOSED USE OF THE PROCEEDS OF THE REVOLVING LOANS OR THE LETTERS OF CREDIT.




          (b) Without prejudice to the survival of any of the other agreements of any of the Guarantors
under this Guaranty or any of the other Loan Documents, the agreements and obligations of each of
the Guarantors contained in Section 1(a) (with respect to enforcement expenses), the last sentence
of Section 2, Section 5 and this Section 12 shall survive the payment in full of the Guaranteed
Obligations and all of the other amounts payable under this Guaranty.




          Section 13. Continuing Guaranty; Assignments Under the Credit Agreement; Release of
Guarantors. This Guaranty is a continuing guaranty and shall (a) remain in full force and
effect until the later of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and (ii) the Termination Date, (b) be binding upon each
Guarantor, its permitted successors and assigns and (c) inure to the benefit of and be enforceable
by the Administrative Agent and the other Secured Parties and their successors, transferees and
permitted assigns. Without limiting the generality of the foregoing clause (c), any Secured Party
may assign or otherwise transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its Commitment, the Loans owing to
it and the promissory note or notes held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such Secured Party
herein or otherwise, in each case as and to the extent provided in Section 13.9 of the Credit
Agreement. No Guarantor shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Secured Parties.




          (a) A Guarantor shall be released from its obligations hereunder as provided in Section 13.21
of the Credit Agreement.




          Section 14. Execution in Counterparts; Effectiveness. This Guaranty may be executed
in any number of counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a signature page of
this Guaranty by facsimile transmission or electronic submission (in .pdf form) shall be effective
as delivery of an original manually executed counterpart of this Guaranty. This Guaranty shall
become effective as to any Guarantor when a counterpart hereof executed on behalf of such Guarantor
shall have been delivered to the Administrative Agent.




          Section 15. Severability. Section 13.6 of the Credit Agreement is hereby incorporated
into this Agreement in its entirety and shall apply to this Agreement as fully as if set forth
herein.







9









 








          Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. Sections 13.3,
13.15 and 13.16 of the Credit Agreement are hereby incorporated into this Agreement in its entirety
and shall apply to this Agreement as fully as if set forth herein.




          Section 17. Entire Agreement. THIS GUARANTY, THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE AGENTS, THE LENDERS AND THE
OTHER RESPECTIVE PARTIES HERETO AND THERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES. ANY CONFLICT OR AMBIGUITY BETWEEN THE TERMS AND PROVISIONS OF
THIS GUARANTY AND THE TERMS AND PROVISIONS OF ANY OTHER LOAN DOCUMENT SHALL BE CONTROLLED BY THE
TERMS AND PROVISIONS HEREOF.




(Signature pages to follow)




10









 





          IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.




	 	 	 	 	 
	 	TMW MARKETING COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Guaranty Agreement






 









 








	 	 	 	 	 
	 	TMW MERCHANTS LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Subsidiary Guaranty Agreement





 









 








	 	 	 	 	 
	 	TMW PURCHASING LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Subsidiary Guaranty Agreement




 









 








	 	 	 	 	 
	 	K&G MEN’S COMPANY INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Subsidiary Guaranty Agreement





 









 








Annex A




FORM OF SUBSIDIARY GUARANTY AGREEMENT SUPPLEMENT



___________, _____




JPMorgan Chase Bank, N.A., as Administrative Agent

707 Travis Street, 8th Floor

Mail Station 8CBBN78

Houston, Texas 77002



Attention:[______________]





	 	Re:	 	Second Amended and Restated Credit Agreement dated as of January 26, 2011 among
The Men’s Wearhouse, Inc., a Texas corporation, Moores The Suit People Inc., a
corporation organized under the laws of the Province of New Brunswick, Canada, MWUK
Holding Company Limited, a corporation organized under the 2006 Companies Act of
England and Wales, the Lenders from time to time party thereto, JPMorgan Chase Bank,
N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian
Agent, and J.P. Morgan Europe Limited, as European Agent




Ladies and Gentlemen:




          Reference is made to the above captioned Credit Agreement and to the Subsidiary Guaranty
Agreement referred to therein (such Subsidiary Guaranty Agreement, as in effect on the date hereof
and as it may hereafter be amended, supplemented or otherwise modified from time to time, together
with this Subsidiary Guaranty Agreement Supplement, being the “Guaranty”). The capitalized terms
defined in the Guaranty or in the Credit Agreement and not otherwise defined herein are used herein
as therein defined.




          The undersigned, jointly and severally with the other Guarantors, hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Guaranteed Obligations, and, subject to Sections
13.10 and 13.11 of the Credit Agreement, agrees to pay any and all expenses (including counsel fees
and expenses) incurred by the Administrative Agent or any other Secured Party in enforcing any
rights under the Guaranty on the terms and subject to the limitations set forth in the Guaranty as
if it were an original party thereto. On and after the date hereof, each reference in the Guaranty
to “Guarantor” shall also mean and be a reference to the undersigned.




          The undersigned hereby agrees to be bound as a Guarantor by all of the terms and provisions of
the Guaranty to the same extent as each other Guarantor.




          THIS SUBSIDIARY GUARANTY AGREEMENT SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND THE UNITED STATES OF AMERICA.







A-1









 








          THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THE UNDERSIGNED HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ACCEPT
THIS SUBSIDIARY GUARANTY AGREEMENT SUPPLEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS PARAGRAPH.




	 	 	 	 	 
	 	Very truly yours,




[NAME OF ADDITIONAL GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Address: 	 	 
	 




A-2











 





EXHIBIT D-1




[FORM OF]

PROMISSORY NOTE



Houston, Texas

January __, 2011




     FOR VALUE RECEIVED, the undersigned, THE MEN’S WEARHOUSE, INC., a Texas corporation
(“Borrower”), hereby promises to pay to the order
of _________________________ (the
“Lender”) at the office of JPMorgan Chase Bank, N.A., located at 712 Main Street, Houston,
Texas 77002, in lawful money of the United States of America and in same day funds, on the Maturity
Date the principal amount of the aggregate unpaid principal amount of all Revolving Loans made by
the Lender to Borrower pursuant to the Credit Agreement, as hereinafter defined. Borrower further
agrees to pay interest in like money at such office on the unpaid principal amount hereof from time
to time outstanding at the rates and on the dates specified in the Credit Agreement.




     The holder of this Note is authorized to, and prior to any transfer hereof shall, endorse on
the schedules attached hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each Revolving Loan made to
Borrower pursuant to the Credit Agreement and the date and amount of each payment or prepayment of
principal thereof, each continuation thereof, each conversion of all or a portion thereof to
another Type and, in the case of a Eurocurrency Loan, the length of each Interest Period with
respect thereto. The failure to make any such endorsement shall not affect the obligations of
Borrower in respect of such Loan.




     This Note (a) is one of the Notes referred to in the Second Amended and Restated Credit
Agreement dated as of January __, 2011 (as same may be amended, modified, increased, supplemented
and/or restated from time to time, the “Credit Agreement”) among Borrower, Moores The Suit
People Inc., a corporation organized under the laws of the Province of New Brunswick, Canada, MWUK
Holding Company Limited, a corporation organized under the 2006 Companies Act of England and Wales,
the financial institutions from time to time party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent, and J.P. Morgan
Europe Limited, as European Agent, (b) is subject to the provisions of the Credit Agreement, and
(c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement.




     Reference is made to the Credit Agreement for provisions for the acceleration of the maturity
hereof.




     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and all other notices of any kind except those
expressly required under the Credit Agreement.




     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.




 









 








     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.




	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








2









 








SCHEDULE A

to

Promissory Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EUROCURRENCY LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Interest Period and	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Continued or	 	 	Adjusted LIBO Rate	 	 	Amount of Principal	 	 	Eurocurrency Loans	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of	 	 	Converted to	 	 	with Respect	 	 	of Eurocurrency	 	 	Converted to CB	 	 	Balance of	 	 	 	 
	Date	 	Eurocurrency Loans	 	 	Eurocurrency Loans	 	 	Thereto	 	 	Loans Repaid	 	 	Floating Rate Loans	 	 	Eurocurrency Loans	 	 	Notation Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





					
	 	 	 	 	 
	Schedule A
	 	1
	 	 






 









 






SCHEDULE B

to

Promissory Note




LOANS, CONVERSIONS AND REPAYMENTS OF CB FLOATING RATE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of CB	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Converted to	 	 	Amount of Principal	 	 	Floating Rate Loans	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of CB	 	 	CB Floating Rate	 	 	of CB Floating Rate	 	 	Converted to	 	 	Balance of CB	 	 	 	 
	Date	 	Floating Rate Loans	 	 	Loans	 	 	Loans Repaid	 	 	Eurocurrency Loans	 	 	Floating Rate Loans	 	 	Notation Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





					
	 	 	 	 	 
	Schedule B
	 	1
	 	 






 









 






EXHIBIT D-2




[FORM OF]

PROMISSORY NOTE



Toronto, Ontario

January __, 2011




     FOR VALUE RECEIVED, the undersigned, [MOORES THE SUIT PEOPLE INC., a corporation organized
under the laws of the Province of New Brunswick, Canada (“MSP”)] [THE MEN’S WEARHOUSE,
INC., a Texas corporation (“Borrower”)], hereby promises to pay to the order of [JPMORGAN
CHASE BANK, N.A., TORONTO BRANCH]
[_______________________]
(the “Lender”) at the office of
JPMorgan Chase Bank, N.A., Toronto Branch, located at 200 Bay Street, Suite 1800, Toronto, Ontario
M5J 2J2, in lawful money of Canada and in same day funds, on the Maturity Date the principal amount
of the aggregate unpaid principal amount of all Revolving Loans made by the Lender to [MSP]
[Borrower] pursuant to the Credit Agreement, as hereinafter defined. [MSP] [Borrower] further
agrees to pay interest in like money at such office on the unpaid principal amount hereof from time
to time outstanding at the rates and on the dates specified in the Credit Agreement.




     The holder of this Note is authorized to, and prior to any transfer hereof shall, endorse on
the schedules attached hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each Revolving Loan made to
[MSP] [Borrower] pursuant to the Credit Agreement and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof, each conversion of all or a portion
thereof to another Type and, in the case of a CDOR Loan, the length of each Interest Period with
respect thereto. The failure to make any such endorsement shall not affect the obligations of
[MSP] [Borrower] in respect of such Loan.




     This Note (a) is one of the Notes referred to in the Second Amended and Restated Credit
Agreement dated as of January __, 2011 (as same may be amended, modified, increased, supplemented
and/or restated from time to time, the “Credit Agreement”) among [The Men’s Wearhouse,
Inc., a Texas corporation] [Borrower], [MSP] [Moores The Suit People Inc., a corporation organized
under the laws of the Province of New Brunswick, Canada], MWUK Holding Company Limited, a
corporation organized under the 2006 Companies Act of England and Wales, the financial institutions
from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase
Bank, N.A., Toronto Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as European Agent,
(b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.




     Reference is made to the Credit Agreement for provisions for the acceleration of the maturity
hereof.




     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest, notice of




 









 








intent to accelerate, notice of acceleration and all other notices of any kind except those
expressly required under the Credit Agreement.




     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.




     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.




	 	 	 	 	 
	 	[MOORES THE SUIT PEOPLE INC.]

[THE MEN’S WEARHOUSE, INC.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








2









 








SCHEDULE A

to

Promissory Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF CDOR LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of CDOR	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Continued or	 	 	Interest Period and	 	 	Amount of Principal	 	 	Loans Converted to	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of	 	 	Converted to CDOR	 	 	CDOR Rate with	 	 	of CDOR Loans	 	 	Canadian Prime	 	 	Balance of CDOR	 	 	 	 
	Date	 	CDOR Loans	 	 	Loans	 	 	Respect Thereto	 	 	Repaid	 	 	Loans	 	 	Loans	 	 	Notation Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





					
	 	 	 	 	 
	Schedule A
	 	1
	 	 






 









 






SCHEDULE B

to

Promissory Note




LOANS, CONVERSIONS AND REPAYMENTS OF CANADIAN PRIME LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of Canadian	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Converted to	 	 	Amount of Principal	 	 	Prime Loans	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of Canadian	 	 	Canadian Prime	 	 	of Canadian Prime	 	 	Converted to CDOR	 	 	Balance of Canadian	 	 	Notation	 
	Date	 	Prime Loans	 	 	Loans	 	 	Loans Repaid	 	 	Loans	 	 	Prime Loans	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





					
	 	 	 	 	 
	Schedule B
	 	1
	 	 






 









 






EXHIBIT D-3




[FORM OF]

PROMISSORY NOTE



London, England

January __, 2011




     FOR VALUE RECEIVED, the undersigned, [MWUK HOLDING COMPANY LIMITED, a corporation organized
under the 2006 Companies Act of England and Wales (with company number 07331441), having its
registered office at 3 More London Riverside, London, SE1 2AQ United Kingdom (“MWUK”)] [THE
MEN’S WEARHOUSE, INC., a Texas corporation (“Borrower”)], hereby promises to pay to the
order of [JPMORGAN CHASE BANK, N.A.] [_________________________] (the “Lender”) at the
office of J.P. Morgan Europe Limited, located at 125 London Wall, London, EC2Y 5AJ, Attn: Loans
Agency, Telecopy No. 44 207 777 2360, in Euro or Sterling (as determined by the currency in which
any particular Revolving Loan was made to [MWUK] [Borrower]) and in same day funds, on the Maturity
Date the principal amount of the aggregate unpaid principal amount of all Revolving Loans made by
the Lender to [MWUK] [Borrower] pursuant to the Credit Agreement, as hereinafter defined. [MWUK]
[Borrower] further agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates and on the dates specified in the Credit
Agreement.




     The holder of this Note is authorized to, and prior to any transfer hereof shall, endorse on
the schedules attached hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, currency, Type and amount of each Revolving Loan
made to [MWUK] [Borrower] pursuant to the Credit Agreement and the date and amount of each payment
or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion
thereof to another Type and, in the case of a Eurocurrency Loan, the length of each Interest Period
with respect thereto. The failure to make any such endorsement shall not affect the obligations of
[MWUK] [Borrower] in respect of such Revolving Loan.




     This Note (a) is one of the Notes referred to in the Second Amended and Restated Credit
Agreement dated as of January __, 2011 (as same may be amended, modified, increased, supplemented
and/or restated from time to time, the “Credit Agreement”) among [The Men’s Wearhouse,
Inc., a Texas corporation] [Borrower], Moores The Suit People Inc., a corporation organized under
the laws of the Province of New Brunswick, Canada, [MWUK] [MWUK Holding Company Limited, a
corporation organized under the 2006 Companies Act of England and Wales], the financial
institutions from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as
European Agent, (b) is subject to the provisions of the Credit Agreement and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit Agreement.




     Reference is made to the Credit Agreement for provisions for the acceleration of the maturity
hereof.







 









 








     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and all other notices of any kind except those
expressly required under the Credit Agreement.




     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.




     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.




	 	 	 	 	 
	 	[MWUK HOLDING COMPANY LIMITED]

[THE MEN’S WEARHOUSE, INC.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








2









 








SCHEDULE A

to

Promissory Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EUROCURRENCY LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Interest Period and	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Continued or	 	 	Adjusted LIBO Rate	 	 	Amount of Principal	 	 	Eurocurrency Loans	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of	 	 	Converted to	 	 	with Respect	 	 	of Eurocurrency	 	 	Converted to CB	 	 	Balance of	 	 	 	 
	Date	 	Eurocurrency Loans	 	 	Eurocurrency Loans	 	 	Thereto	 	 	Loans Repaid	 	 	Floating Rate Loans	 	 	Eurocurrency Loans	 	 	Notation Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





					
	 	 	 	 	 
	Schedule A
	 	1
	 	 






 









 






EXHIBIT D-4




[FORM OF]

SWINGLINE NOTE



Houston, Texas

January __, 2011




     FOR VALUE RECEIVED, the undersigned, THE MEN’S WEARHOUSE, INC., a Texas corporation
(“Borrower”), hereby promises to pay to the order of [JPMORGAN CHASE BANK, N.A.]
[_________________________] (the “Swingline Bank”) at the office of JPMorgan Chase Bank,
N.A., located at 712 Main Street, Houston, Texas 77002, in lawful money of the United States of
America and in same day funds, as and when the same shall become due and payable pursuant to the
Credit Agreement (as hereinafter defined), the aggregate unpaid principal amount of all Swingline
Loans made by the Swingline Bank to Borrower pursuant to such Credit Agreement. Borrower further
agrees to pay interest in like money at such office on the unpaid principal amount hereof from time
to time outstanding at the rates and on the dates specified in the Credit Agreement.




     This Note (a) represents the Swingline Loans referred to in the Second Amended and Restated
Credit Agreement dated as of January __, 2011 (as same may be amended, modified, increased,
supplemented and/or restated from time to time, the “Credit Agreement”) among Borrower,
Moores The Suit People Inc., a corporation organized under the laws of the Province of New
Brunswick, Canada, MWUK Holding Company Limited, a corporation organized under the 2006 Companies
Act of England and Wales, the financial institutions from time to time party thereto, JPMorgan
Chase Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian
Agent, and J.P. Morgan Europe Limited, as European Agent, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement.




     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and all other notices of any kind except those
expressly required under the Credit Agreement.




     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.







1









 








     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.




	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




2











 





EXHIBIT E




[FORM OF]

NOTICE OF BORROWING



[JPMorgan Chase Bank, N.A., as Administrative Agent

707 Travis Street, 8th Floor (8CBBN78)

Houston, Texas 77002

Attn: Mr. Robert L. Mendoza]




[JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent

200 Bay Street, Suite 2000

Toronto, Ontario, M5J 2S1

Attn: Indrani Lazarus]




[J.P. Morgan Europe Limited, as European Agent

125 Loan Wall

London, EC2Y 5AJ

Attn: Loans Agency]




Ladies and Gentlemen:




     Reference is made to the Second Amended and Restated Credit Agreement dated as of January __,
2011 (as same may be amended, modified, increased, supplemented and/or restated from time to time,
the “Credit Agreement”) among The Men’s Wearhouse, Inc. (the “Borrower”), Moores The Suit People
Inc. (“MSP”), MWUK Holding Company Limited (“MWUK”), the Lenders party thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent,
and J.P. Morgan Europe Limited, as European Agent. Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement.



     (a) [The Borrower requests that the Lenders advance to it a Borrowing in the aggregate
principal amount of $______________ to be made on __________ ___, 201__. After giving effect to
such Borrowing, the Total Credit Exposure shall not exceed the Total Commitment. The Borrower
requests that the principal amount of the requested Borrowing bear interest as follows:




	 	(i)	 	The aggregate principal amount of CB Floating Rate Loans
requested to be made by the Lenders is $_____________.
	 
	 	(ii)	 	The aggregate principal amount of Eurocurrency Loans requested
to be made by the Lenders and the initial Interest Period with respect thereto
shall be:




 









 











	 	 	 
	Requested Amount:	 	Interest Period:1
	 	 	 
	$_____________________
	 	______________________ ]






     (b) [The Borrower requests a Swingline Loan in the aggregate principal amount of
$______________ to be made on __________ ___, 201__. The principal amount of such Swingline Loan,
together with the principal amount of all other Swingline Loans outstanding on the date such
Swingline Loan is made, will not exceed $5,000,000 and will not result in the Total Credit Exposure
exceeding the Total Commitment.]



     (c) [[MSP] [The Borrower] requests that the Lenders advance to it the aggregate principal
amount of C$______________, denominated in Canadian Dollars, on __________ ___, 201_. [MSP] [The
Borrower] requests that the aggregate principal amount of the requested Loans bear interest as
follows:




	 	(i)	 	The aggregate principal amount of Canadian Prime Loans
requested to be made by the Lenders to [MSP] [the Borrower] is C$_____________.
	 
	 	(ii)	 	The aggregate principal amount of CDOR Loans requested to be
made by the Lenders to [MSP] [the Borrower] and the initial Interest Period
with respect thereto shall be:





	 	 	 
	Requested Amount:	 	Interest Period:2
	 	 	 
	C$_____________________
	 	______________________ ]






     (c) [[MWUK] [The Borrower] requests that the Lenders advance to it the aggregate principal
amount of [£][€]______________, denominated in [Sterling][Euro],] on __________ ___, 201_. [MWUK]
[The Borrower] requests that the aggregate principal amount of the requested Eurocurrency Loans and
the initial Interest Period with respect thereto shall be:



	 	 	 
	Requested Amount:	 	Interest Period:3
	 	 	 
	[£][€]_____________________
	 	______________________ ]






     (d) Funds are requested to be disbursed to [the Borrower’s] [MSP’s] [MWUK’s] demand deposit
account as follows:



[Account Location and Number]4






 




			
	1	 	Insert one, two, three or six months.
	 
	2	 	Insert one, two, three or six months.
	 
	3	 	Insert one, two, three or six months.
	 
	4	 	Must comply with Section 2.4(a) of the Credit
Agreement.




 









 










     (e) At the time of and immediately after giving effect to the making of the requested Loans,
no Default shall have occurred and be continuing.



     (f) The representations and warranties of the Borrower and the other Loan Parties contained in
the Loan Documents (other than those representations and warranties limited by their terms to a
specific date, in which case they shall be true and correct as of such date) are true and correct
on and as of the date of the requested Borrowing Date, with the same force and effect as though
made on and as of such date.



     EXECUTED AND DELIVERED as of the ___ day of __________ 201_.



	 	 	 	 	 
	 	[NAME OF REQUESTING BORROWER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT F




[FORM OF]

LETTER OF CREDIT REQUEST



[Date]



[JPMorgan Chase Bank, N.A., as Administrative Agent

707 Travis Street, 8th Floor (8CBBN78)

Houston, Texas 77002

Attention: Mr. Robert L. Mendoza]




Ladies and Gentlemen:





     The undersigned, ___________________ (the “Applicable Borrower”), refers to the Second Amended
and Restated Credit Agreement dated as of January __, 2011 (as same may be amended, modified,
increased, supplemented and/or restated from time to time, the “Credit Agreement”) among The Men’s
Wearhouse, Inc., Moores The Suit People Inc., MWUK Holding Company Limited, the Lenders party
thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., Toronto
Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as European Agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the Credit Agreement.



     [The Applicable Borrower hereby requests the issuance of a Letter of Credit under the Credit
Agreement, and in that connection sets forth below the information relating to such Letter of
Credit (“Proposed Letter of Credit”) as required by Section 2.7 of the Credit Agreement.
As more fully set forth in the Application attached hereto as Annex A, the Proposed Letter
of Credit must be issued:




	 	(a)	 	on or before _______________, ____1;
	 
	 	(b)	 	for the benefit of __________________;
	 
	 	(c)	 	in the amount of _____________ [US Dollars] [Canadian Dollars] [Sterling]
[Euro];
	 
	 	(d)	 	having an expiry date of __________, ____2;







 




			
	1	 	Which must be not less than two (2) Business
Days after notice is given to the Administrative Agent.
	 
	2	 	Which shall not be a date later than the
earlier of (i) twelve (12) months from the issuance date (or in the case of any
renewal or extension, twelve (12) months after such renewal or extension) or
(ii) five (5) Business Days prior to the scheduled Maturity Date; provided that
any Letter of Credit with a one-year tenor may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
that is five (5) Business Days prior to the scheduled Maturity Date).




 









 










     and is subject to the conditions set forth in the Application attached hereto.]



     [The Applicable Borrower hereby refers to Letter of Credit Number _____ (the “Existing
Letter of Credit”). The Applicable Borrower hereby requests that the Existing Letter of Credit
be amended as more particularly described on Exhibit A attached hereto and incorporated
herein on or before __________, ___.1]



     [The Applicable Borrower hereby refers to Letter of Credit Number _____ (the “Expiring
Letter of Credit”) which has an existing expiry date of ____________. The Applicable Borrower
hereby requests that [the expiry date of the Expiring Letter of Credit be extended to
____________2] [the Lenders permit the expiry date of the Expiring Letter of Credit to be extended
to ____________2]. ]



     The Applicable Borrower hereby certifies that, immediately after giving effect to the
[issuance of the Proposed Letter of Credit] [amendment to the Existing Letter of Credit] [extension
of the Expiring Letter of Credit], the US Dollar Equivalent of (i) the Total Credit Exposure will
not exceed the Total Commitment, (ii) the LC Exposure will not exceed $40,000,000 and (iii) the
aggregate principal amount of all outstanding Revolving Loans denominated in an Alternative
Currency plus all LC Exposures for Letters of Credit denominated in such Alternative Currency will
not exceed the applicable Alternative Currency Sublimit.



     The Applicable Borrower hereby further certifies that:



     (a) on the date hereof all applicable conditions to the [issuance of the Proposed Letter of
Credit] [amendment to the Existing Letter of Credit] [extension of the Expiring Letter of Credit]
set forth in the Credit Agreement have been satisfied and that the [Proposed Letter of Credit]
[Existing Letter of Credit as amended] [Expiring Letter of Credit as extended] complies with the
terms of the Credit Agreement;



     (b) at the time of and immediately after giving effect to [issuance of the Proposed Letter of
Credit] [amendment to the Existing Letter of Credit] [extension of the Expiring Letter of Credit],
no Default shall have occurred and be continuing; and



     (c) each of the representations and warranties of the Applicable Borrower and the other Loan
Parties contained in the Loan Documents (other than those representations and warranties limited by
their terms to a specific date, in which case they shall be true and correct as of such date) are
true and correct on and as of the date of [issuance of the Proposed Letter of Credit] [amendment to
the Existing Letter of Credit] [extension of the Expiring Letter of Credit], with the same force
and effect as though made on and as of such date.



     EXECUTED AND DELIVERED this _____ day of __________, 201__.



	 	 	 	 	 
	 	[_________________________________]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



[Annex A] [Exhibit A]






 









 








EXHIBIT G




[FORM OF]

NOTICE OF RATE CHANGE/CONTINUATION



[JPMorgan Chase Bank, N.A., as Administrative Agent

707 Travis Street, 8th Floor (8CBBN78)

Houston, Texas 77002

Attn: Mr. Robert L. Mendoza]




[JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent

200 Bay Street, Suite 2000

Toronto, Ontario, M5J 2S1

Attn: Indrani Lazarus]




[J.P. Morgan Europe Limited, as European Agent

125 Loan Wall

London, EC2Y 5AJ

Attn: Loans Agency]




Ladies and Gentlemen:





     The undersigned, ____________________ (the “Applicable Borrower”), refers to the Second
Amended and Restated Credit Agreement dated as of January __, 2011 (as same may be amended,
modified, increased, supplemented and/or restated from time to time, the “Credit Agreement”) among
The Men’s Wearhouse, Inc., Moores The Suit People Inc., MWUK Holding Company Limited, the Lenders
party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A.,
Toronto Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as European Agent. Capitalized
terms used but not defined herein shall have the meanings given to them in the Credit Agreement.



     Pursuant to Section 3.1(c) of the Credit Agreement, this Notice of Rate Change/Continuation
represents the Applicable Borrower’s election with respect to Loans to [insert one or more of the
following]:




	 	[1.	 	Use if converting Eurocurrency Loans to CB Floating Rate Loans.]
	 
	 	 	 	Convert $____________ in aggregate principal amount of Eurocurrency Loans made on
________________, _____, with an applicable rate of ____, and a current Interest
Period ending on ________________, _____, to CB Floating Rate Loans on
________________, ____.




 









 












	 	[2.	 	Use if converting CB Floating Rate Loans to Eurocurrency Loans.]
	 
	 	 	 	Convert $____________ in aggregate principal amount of CB Floating Rate Loans to
Eurocurrency Loans on ________________, ____. The initial Interest Period for such
Eurocurrency Loans is requested to be [one] [two] [three] [six] month[s].]
	 
	 	[3.	 	Use if continuing Eurocurrency Loans.]
	 
	 	 	 	Continue ____________, denominated in [US Dollars] [Sterling] [Euro], in aggregate
principal amount of Eurocurrency Loans made on ________________, _____, with an
applicable rate of ____, and a current Interest Period ending on ________________,
____. The new Interest Period for such Eurocurrency Loans is requested to be [one]
[two] [three] [six] month[s].]
	 
	 	[4.	 	Use if converting Canadian Prime Loans to CDOR Loans]
	 
	 	 	 	Convert C $___________________, in aggregate principal amount of Canadian Prime Loans to CDOR Loans on
__________________, _______. The initial Interest Period for such CDOR Loans is requested to be [one] [two]
[three] [six] month[s].]
	 
	 	[5.	 	Use if converting CDOR Loans to Canadian Prime Loans]
	 
	 	 	 	Convert C $__________________ in aggregate principal amount of CDOR Loans made
on _________________, _______, with an
applicable rate of ______, and an Interest Period ending on ____________________, _______, to Canadian
Prime Loans on __________________, ______.]
	 
	 	[6.	 	Use if continuing CDOR Loans]
	 
	 	 	 	Continue C$____________, in aggregate principal amount of CDOR Loans made on
________________, _____, with an applicable rate of ____, and a current Interest
Period ending on _________________, _______. The new Interest Period for such CDOR Loans is requested to be
[one] [two] [three] [six] month[s].]




 









 










EXECUTED
AND DELIVERED this ___ day of __________ 201_.





	 	 	 	 	 
	 	[__________________________________]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT H




[FORM OF]

NOTICE OF COMMITMENT INCREASE



[Date]



JPMorgan Chase Bank, N.A., as Administrative Agent

707 Travis Street, 8th Floor (8CBBN78)

Houston, Texas 77002

Attention: Mr. Robert L. Mendoza




Ladies and Gentlemen:



The undersigned, The Men’s Wearhouse, Inc. (the “Borrower”), refers to the Second Amended and
Restated Credit Agreement dated as of January __, 2011 (as same may be amended, modified,
increased, supplemented and/or restated from time to time, the “Credit Agreement”) among the
Borrower, Moores The Suit People Inc. (“MSP”), MWUK Holding Company Limited (“MWUK”), the Lenders
party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A.,
Toronto Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as European Agent. Capitalized
terms used but not defined herein shall have the meanings given to them in the Credit Agreement.



The Borrower hereby notifies you, pursuant to Section 4.11 of the Credit Agreement, that it intends
to increase the Commitments by $___________________ and, if applicable, to increase the Alternative
Currency Sublimit, each effective as of __________________.



The Borrower further proposes _________________, whose address for notices is
_______________________, as an Additional Lender and that such Additional Lender requests the
Commitment in the amount of $________________.



Pursuant to Section 4.11, the existing Lenders are hereby offered the first opportunity to provide
the requested Commitment Increase.



Delivery of an executed counterpart of this Notice of Commitment Increase by facsimile transmission
or electronic submission (in .pdf form) shall be effective as delivery of an original manually
executed counterpart of this Notice of Commitment Increase.




	 	 	 	 	 
	 	Very truly yours,



THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Acknowledged by:




	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 






	 	 	 	 	 



EXHIBIT I




[FORM OF]

COMPLIANCE CERTIFICATE




     The undersigned hereby certifies that [he] [she] is a Responsible Officer of The Men’s
Wearhouse, Inc., a Texas corporation (the “Borrower”), and that, as such, [he] [she] is
authorized to execute this certificate on behalf of the Borrower.



     Reference is made to the Second Amended and Restated Credit Agreement dated as of January __,
2011 (as same may be amended, modified, increased, supplemented and/or restated from time to time,
the “Credit Agreement”) among the Borrower, Moores The Suit People Inc., a corporation
organized under the laws of the Province of New Brunswick, Canada, MWUK Holding Company Limited, a
corporation organized under the 2006 Companies Act of England and Wales, the financial institutions
from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase
Bank, N.A., Toronto Branch, as Canadian Agent, and J.P. Morgan Europe Limited, as European Agent.
Terms defined in the Credit Agreement are used herein as defined therein.



     Pursuant to Section 9.1(d) of the Credit Agreement, the undersigned hereby certifies as
follows:




	 	(a)	 	As of the date hereof, there exists no Event of Default or Default, or if any
Event of Default or Default exists, the nature of such Event of Default or Default is
specified on Exhibit A attached hereto, along with the period of existence
thereof and what action the Borrower has taken or proposes to take with respect
thereto.
	 
	 	(b)	 	Attached hereto as Exhibit B are true and correct schedules,
computations and other information which demonstrate that the Borrower is in compliance
with the covenants set forth in Sections 10.2, 10.3 and 10.10 of the Credit Agreement.
	 
	 	(c)	 	The calculation of the Applicable Margin contained in the Applicable Margin
Certificate dated ______________, 201_ was accurate.
	 
	 	(d)	 	Attached hereto as Exhibit C is a list of all Material Domestic
Subsidiaries as of the date hereof.
	 
	 	(e)	 	That during the four Fiscal Quarters ending with the Fiscal Quarter or Fiscal
Year, as the case may be, for which the relevant financial statements were most
recently delivered pursuant to Sections 9.1(a) or 9.1(b) of the Credit Agreement (check
as applicable):
	 
	 	 	 	______ there has been no change in GAAP or in the application thereof that has had
a material effect on such financial statements.
	 
	 		 	or





 









 











	 	 	 	_______ there has been a change in GAAP or in the application thereof and such
change has had a material effect on such financial statements. The effect of such
change is described in Exhibit D.
	 
	 	 	 	and
	 
	 	 	 	_____ The reconciliation required by Section 9.1(d) of the Credit Agreement is
attached to this Certificate.





     EXECUTED AND DELIVERED as of the ___ day of __________ 201_.



	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT A






 









 








EXHIBIT B






 









 








EXHIBIT C






 









 








EXHIBIT D





 












 





EXHIBIT J




[FORM OF]

APPLICABLE MARGIN CERTIFICATE



     The undersigned hereby certifies that he/she is a Responsible Officer of The Men’s Wearhouse,
Inc., a Texas corporation (the “Borrower”), and that, as such, he/she is authorized to execute this
certificate on behalf of the Borrower.



     Reference is made to the Second Amended and Restated Credit Agreement dated as of January __,
2011 (as same may be amended, modified, increased, supplemented and/or restated from time to time,
the “Credit Agreement”) among The Men’s Wearhouse, Inc. (the “Borrower”), Moores The Suit People
Inc. (“MSP”), MWUK Holding Company Limited (“MWUK”), the Lenders party thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent,
and J.P. Morgan Europe Limited, as European Agent. Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement.




	 	(a)	 	As of the last day of the [Fiscal Quarter] [Fiscal Year] ended ____________,
201___, the Leverage Ratio was __________. The resultant Applicable Margin is:





	 	 	 	 	 	 	 

	(i)

	 	for Eurocurrency Loans, CDOR 
Loans or Letter of Credit Fees:
	 	 

	 	 
	 
	 	 	 	 	 	 
	(ii)

	 	for CB Floating Rate Loans or
 Canadian Prime Loans:
	 	 

	 	 
	 
	 	 	 	 	 	 
	(iii)

	 	for Commitment Fees:
	 	 

	 	 







	 	(b)	 	Exhibit A attached hereto contains true and correct computations and other
financial information from which the Leverage Ratio was determined.





     EXECUTED AND DELIVERED as of the ___ day of __________ 201_.



	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






Exhibit A











 









 








EXHIBIT K RIDER




MANDATORY COST FORMULA





     (1) The Mandatory Cost (to the extent applicable) is an addition to the interest rate
to compensate a Lender that funds Loans denominated in Euro or Sterling from a lending
office located in the UK for the cost of compliance with the requirements of the Bank of
England or the Financial Services Authority of the UK (the “FSA”) (or, in either
case, any other authority succeeding to all or any of its functions), or both of them as the
case may be, or the requirements of the European Central Bank.




     (2) On the first day of each Interest Period (or as soon as possible thereafter) the
European Agent shall calculate, as a percentage rate, a rate (the “Associated Costs
Rate”) for each applicable Lender in accordance with the paragraphs set out below. The
Mandatory Cost will be calculated by the European Agent as a weighted average of the
Lenders’ Associated Costs Rates (weighted in proportion to the percentage participation of
each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.




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




     (4) The Associated Costs Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the European Agent as follows:




	 	 	 	in relation to any Revolving Loan in Sterling:





	 	 	 

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

	 	per cent per
	 

100 − (A + C)

	 	 annum







	 	 	 	In relation to a Loan in any currency other than Sterling:





	 	 	 

	E x 0.01

	 	per cent per annum
	 300
	 	 





Where:





	 	“A” 	 	 is the percentage of Eligible Liabilities (assuming these to be
in excess of any stated minimum) which such Lender is from time to time
required to maintain as an interest free cash ratio deposit with the Bank of
England to comply with cash ratio requirements.
	 
	 	“B” 	 	 is the percentage rate of interest (excluding the Applicable
Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in Section 3.1(h)) payable for the relevant Interest
Period on such Loan.




1









 












	 	“C” 	 	 is the percentage (if any) of Eligible Liabilities which such
Lender is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
	 
	 	“D” 	 	 is the percentage rate per annum payable by the Bank of England
to the European Agent on interest bearing Special Deposits.
	 
	 	“E” 	 	 is designed to compensate such Lender for amounts payable under
the Fees Rules and is calculated by the European Agent as being the most recent
rate of charge supplied by such Lender to the European Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.
	 
	 	(5)	 	For the purposes of this Exhibit:
	 
	 	(a)	 	“Eligible Liabilities” and “Special Deposits”
have the meanings given to them from time to time under or pursuant to the Bank
of England Act 1998 or (as may be appropriate) by the Bank of England;
	 
	 	(b)	 	“Facility Office” means the office or offices notified
by a Lender to the European Agent in writing on or before the date it becomes a
Lender (or, following that date, by not less than five Business Days’ written
notice) as the office or offices through which it will perform its obligations
under this Agreement.
	 
	 	(c)	 	“Fees Rules” means the rules on periodic fees contained
in the FSA Fees Manual or such other law or regulation as may be in force from
time to time in respect of the payment of fees for the acceptance of deposits;
	 
	 	(d)	 	“Fee Tariffs” means the fee tariffs specified in the
Fees Rules under Column 1 of the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the Fees Rules but
taking into account any applicable discount rate);
	 
	 	(e)	 	“Tariff Base” has the meaning given to it in, and will
be calculated in accordance with, the Fees Rules; and
	 
	 	(f)	 	“Unpaid Sum” means any sum due and payable but unpaid
by any Borrower under the Loan Documents..






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




     (7) If requested by the European Agent, such Lender shall, as soon as practicable after
publication by the FSA, supply to the European Agent the rate of charge payable by such
Lender to the FSA pursuant to the Fees Rules in respect of the relevant financial year of
the FSA (calculated for this purpose by such Lender as being the average of the Fee Tariffs
applicable to such Lender for that financial year) and expressed in pounds per £1,000,000 of
the Tariff Base of such Lender.



2









 






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




	 	(a)	 	Its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
	 
	 	(b)	 	Any other information that the European Agent may reasonably
require for such purpose.






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




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




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




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




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




     The European Agent may from time to time, after consultation with the Applicable
Borrower and the relevant Lenders, determine and notify to all parties hereto any amendments
which are required to be made to this Exhibit in order to comply with any Change in Law or
any requirements from time to time imposed by the Bank of
England, the FSA, or the European Central Bank (or, in any case, any other authority
which replaces all or any of its functions), and any such determination shall, in the
absence of manifest error, be conclusive and binding on all parties hereto.



3









 





EXHIBIT L




[FORM OF]

JOINDER AGREEMENT



Dated as of _________, 201____



     Reference is hereby made to the Second Amended and Restated Credit Agreement, dated as of
January ___, 2011 (as same may be amended, modified, increased, supplemented and/or restated from
time to time, the “Credit Agreement”) among The Men’s Wearhouse, Inc., Moores The Suit
People Inc., MWUK Holding Company Limited, the Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Agent, and J.P. Morgan
Europe Limited, as European Agent. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Credit Agreement.



     Pursuant to the terms of Section 4.11(d) of the Credit Agreement, the Borrower, the Issuing
Banks, the Administrative Agent and [_______________] (the “Additional Lender”) hereby
agree as follows:



     1. Subject to the terms and conditions of this Joinder Agreement, the Additional
Lender hereby agrees to assume, without recourse to the Lenders or the Administrative
Agent, on the Effective Date (as defined below), a Commitment of [$__________] in
accordance with the terms and conditions set forth in the Credit Agreement. Upon such
assumption, the Total Commitment shall be automatically increased by the amount of such
assumption. The Additional Lender hereby agrees to be bound by and to assume all
rights and obligations of a Lender, and hereby requests the agreement of the Borrower,
the Issuing Banks and the Administrative Agent that the Additional Lender shall be
entitled to the benefits of, all of the terms, conditions and provisions of the Credit
Agreement as if the Additional Lender had been one of the lending institutions
originally executing the Credit Agreement as a ‘Lender’; provided that nothing
herein shall be construed as making the Additional Lender liable to the Borrower, the
Issuing Banks or the other Lenders in respect to any acts or omissions of any party to
the Credit Agreement or in respect of any other event occurring prior to the Effective
Date (as defined below) of this Joinder Agreement.



     2. The Additional Lender (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Joinder Agreement and to
consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement,
(ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to
be satisfied by it in order to become an Additional Lender, (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of its Commitment, shall have the obligations of a Lender thereunder, (iv) confirms that
it has received a copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 9.1 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into this Joinder
Agreement and has made such analysis and decision
independently and without reliance on Administrative Agent or any other Lender, and (v) if it
is a Foreign Lender, attached to the Joinder Agreement is any documentation required to be



1









 




delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Additional Lender; (b) agrees that (i) it will, independently and without reliance on
Administrative Agent 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; (c) appoints and authorizes the entities named as the Administrative Agent, the European
Agent and the Canadian Agent to serve as the Administrative Agent, the European Agent or the
Canadian Agent, as the case may be, under the Loan Documents and to take such action in such
capacity on its behalf and to exercise such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Agents by the terms thereof, together with such powers as are
reasonably incidental thereto; and (d) acknowledges that it has made arrangements with the
Administrative Agent satisfactory to the Additional Lender with respect to its prorata share of
Letter of Credit Fees in respect of outstanding Letters of Credit.




     3. [The Additional Lender hereby requests that the Borrower issue a new promissory note
payable to the order of Additional Lender in the principal amount of [$______].]



     4. The effective date for this Joinder Agreement shall be [_________, 201___] (the
“Effective Date”). Following the execution of this Joinder Agreement by the Borrower, the
Issuing Banks and the Additional Lender, it will be delivered to the Administrative Agent for
acceptance pursuant to the Credit Agreement. Upon acceptance of this Joinder Agreement by the
Administrative Agent, Schedule 2.1 to the Credit Agreement shall thereupon be replaced as
of the Effective Date by the Schedule 2.1 annexed hereto. The Administrative Agent shall
thereafter notify the other Lenders of the revised Schedule 2.1.



     5. Upon such acceptance, from and after the Effective Date, the Borrower shall make all
payments in respect of the Additional Lender’s Commitment (including payments of principal,
interest, fees and other amounts) to the Administrative Agent for the account of the Additional
Lender.



     6. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.



     7. This Joinder Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. Delivery of an executed counterpart of a signature
page of this Joinder Agreement by facsimile transmission or electronic submission (in .pdf form)
shall be effective as delivery of an original manually executed counterpart of this Joinder
Agreement.



[Signatures continue on following pages]






2









 








	 	 	 	 	 
	 	ADDITIONAL LENDER:

[_______________________________]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Joinder Agreement







 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Joinder Agreement







 









 








	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.,

a Texas corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Joinder Agreement







 









 








	 	 	 	 	 
	 	[JPMORGAN CHASE BANK, N.A.],

as Issuing Bank

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[_________________________________,1

as Issuing Bank

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	] 
	 





 




			
	1	 	To be added for each Issuing Bank, if any, in addition to JPMorgan Chase Bank, N.A.





Signature Page to Joinder Agreement





 









 








Schedule 2.1

Commitments




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lender	 	Title	 	Final Allocation	 	Sublimit (CAD)	 	Sublimit (Euro)	 	Sublimit (Sterling)
	JPMorgan Chase Bank, N.A.
	 	Administrative Agent	 	$	35,000,000.0	 	 	$	19,178,082.2	 	 	$	23,489,932.9	 	 	$	23,489,932.9	 
	Bank of America, N.A.
	 	Co-Lead Arranger & Bookrunner	 	 	33,500,000.0	 	 	 	18,356,164.4	 	 	 	22,483,221.5	 	 	 	22,483,221.5	 
	U.S Bank National Association
	 	Syndication Agent	 	 	33,500,000.0	 	 	 	18,356,164.4	 	 	 	0.0	 	 	 	0.0	 
	Union Bank N.A.
	 	Documentation Agent	 	 	23,000,000.0	 	 	 	12,602,739.7	 	 	 	15,436,241.6	 	 	 	15,436,241.6	 
	Wells Fargo Bank, N.A.
	 	 	 	 	 	 	20,000,000.0	 	 	 	10,958,904.1	 	 	 	13,422,818.8	 	 	 	13,422,818.8	 
	HSBC Bank USA, N.A.
	 	 	 	 	 	 	20,000,000.0	 	 	 	10,958,904.1	 	 	 	13,422,818.8	 	 	 	13,422,818.8	 
	BOKF, N.A. dba Bank of Texas
	 	 	 	 	 	 	17,500,000.0	 	 	 	0.0	 	 	 	0.0	 	 	 	0.0	 
	The Bank of Nova Scotia
	 	 	 	 	 	 	17,500,000.0	 	 	 	9,589,041.1	 	 	 	11,744,966.4	 	 	 	11,744,966.4	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total
	 	 	 	 	 	$	200,000,000.0	 	 	$	100,000,000.0	 	 	$	100,000,000.0	 	 	$	100,000,000.0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





Schedule 2.1












 









 







Schedule 2.7




Letters of Credit



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicant	 	JPM Reference (LC number)	 	Effective Date	 	Expiry Date	 	Ccy	 	Outstanding Amount
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	MEN’S WEARHOUSE, INC
	 	D-234855	 	08-Oct-2007	 	14-May-2011	 	USD	 	 	900,000.00	 
	MEN’S WEARHOUSE, INC
	 	D-236267	 	08-Oct-2007	 	31-Mar-2011	 	USD	 	 	23,045.00	 
	MEN’S WEARHOUSE, INC
	 	D-238274	 	08-Oct-2007	 	31-May-2011	 	USD	 	 	1,427,009.00	 
	MEN’S WEARHOUSE, INC
	 	D-239131	 	08-Oct-2007	 	31-Jul-2011	 	USD	 	 	67,500.00	 
	MEN’S WEARHOUSE, INC
	 	TDTS-637978	 	08-Oct-2007	 	02-May-2011	 	USD	 	 	1,002,000.00	 
	MEN’S WEARHOUSE, INC
	 	TPTS-265032	 	08-Oct-2007	 	01-May-2011	 	USD	 	 	1,643,000.00	 
	MEN’S WEARHOUSE, INC
	 	TPTS-334740	 	08-Oct-2007	 	06-Jun-2011	 	USD	 	 	4,777,976.00	 
	MEN’S WEARHOUSE, INC
	 	CPCS-836079	 	06-May-2010	 	03-May-2011	 	USD	 	 	1,000,000.00	 
	MEN’S WEARHOUSE, INC
	 	CPCS-853200	 	06-Aug-2010	 	11-Feb-2012	 	USD	 	 	236,055.44	 
	MEN’S WEARHOUSE, INC
	 	CPCS-853218	 	06-Aug-2010	 	11-Feb-2012	 	USD	 	 	439,553.40	 
	MEN’S WEARHOUSE, INC
	 	CPCS-868188	 	26-Aug-2010	 	30-Sep-2011	 	USD	 	 	1,792,505.00	 
	MEN’S WEARHOUSE, INC
	 	CPCS-868189	 	26-Aug-2010	 	30-Sep-2011	 	USD	 	 	779,350.00	 
	MEN’S WEARHOUSE, INC
	 	CPCS-868190	 	26-Aug-2010	 	30-Sep-2011	 	USD	 	 	498,784.00	 
	MEN’S WEARHOUSE, INC
	 	CPCS-878750	 	27-Sep-2010	 	31-Mar-2011	 	USD	 	 	425,000.00	 
	MEN’S WEARHOUSE, INC
	 	R4RI-869632	 	27-Oct-2010	 	15-Jan-2011	 	USD	 	 	166,436.34	 
	MWUK ACQUISITION COMPANY LTD T/A
	 	HLCTMW00000516	 	24-Sep-2010	 	15-Jan-2011	 	USD	 	 	4,203.39	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000525	 	22-Sep-2010	 	21-Feb-2011	 	USD	 	 	151,052.11	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000526	 	22-Sep-2010	 	31-Jan-2011	 	USD	 	 	10,601.64	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000527	 	22-Sep-2010	 	31-Jan-2011	 	USD	 	 	18,082.80	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000528	 	22-Sep-2010	 	31-Jan-2011	 	USD	 	 	154,965.30	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000530	 	22-Sep-2010	 	31-Jan-2011	 	USD	 	 	1,332,311.00	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000535	 	04-Oct-2010	 	31-Jan-2011	 	USD	 	 	174,449.96	 
	K AND G MEN’S COMPANY, INC.
	 	HLCTMW00000538	 	14-Oct-2010	 	20-Feb-2011	 	USD	 	 	704,492.00	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000539	 	08-Oct-2010	 	31-Jan-2011	 	USD	 	 	85,498.31	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000540	 	08-Oct-2010	 	31-Jan-2011	 	USD	 	 	19,386.03	 
	MWUK ACQUISITION COMPANY LTD T/A
	 	HLCTMW00000542	 	18-Oct-2010	 	15-Jan-2011	 	USD	 	 	231,672.00	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000543	 	15-Oct-2010	 	31-Jan-2011	 	USD	 	 	111,355.20	 
	MWUK ACQUISITION COMPANY LTD T/A
	 	HLCTMW00000544	 	18-Oct-2010	 	12-Feb-2011	 	USD	 	 	8,771.14	 
	TMW PURCHASING LLC
	 	HLCTMW00000545	 	21-Oct-2010	 	13-Jan-2011	 	USD	 	 	48,951.41	 
	MWUK ACQUISITION COMPANY LTD T/A
	 	HLCTMW00000549	 	26-Oct-2010	 	01-Mar-2011	 	USD	 	 	25,527.93	 
	MWUK ACQUISITION COMPANY LTD T/A
	 	HLCTMW00000552	 	29-Oct-2010	 	16-Jun-2011	 	USD	 	 	46,331.57	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000553	 	03-Nov-2010	 	31-Mar-2011	 	USD	 	 	189,708.75	 
	MWUK ACQUISITION COMPANY LTD T/A
	 	HLCTMW00000560	 	10-Nov-2010	 	04-Jun-2011	 	USD	 	 	5,363.92	 
	TMW PURCHASING LLC
	 	HLCTMW00000563	 	12-Nov-2010	 	19-Jan-2011	 	USD	 	 	2,981.29	 
	MWUK ACQUISITION COMPANY LTD T/A
	 	HLCTMW00000564	 	17-Nov-2010	 	15-Jan-2011	 	USD	 	 	9,624.50	 
	MOORES PURCHASING A DIVISION OF
	 	HLCTMW00000565	 	17-Nov-2010	 	08-Feb-2011	 	USD	 	 	157,653.35	 
	TMW PURCHASING LLC
	 	HLCTMW00000566	 	16-Nov-2010	 	03-Feb-2011	 	USD	 	 	111,240.00	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000567	 	19-Nov-2010	 	30-Apr-2011	 	USD	 	 	737,489.52	 
	TMW PURCHASING LLC
	 	HLCTMW00000568	 	07-Dec-2010	 	24-Jan-2011	 	USD	 	 	901.13	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000569	 	30-Nov-2010	 	28-Feb-2011	 	USD	 	 	50,709.55	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000570	 	03-Dec-2010	 	30-May-2011	 	USD	 	 	659,999.45	 
	TMW PURCHASING LLC
	 	HLCTMW00000571	 	03-Dec-2010	 	15-Jan-2011	 	USD	 	 	230,790.14	 
	TMW PURCHASING LLC
	 	HLCTMW00000572	 	09-Dec-2010	 	06-Mar-2011	 	USD	 	 	100,702.46	 
	TMW PURCHASING LLC
	 	HLCTMW00000573	 	10-Dec-2010	 	03-Feb-2011	 	USD	 	 	13,942.08	 
	TMW PURCHASING LLC
	 	HLCTMW00000574	 	13-Dec-2010	 	24-Jan-2011	 	USD	 	 	10,609.00	 
	K AND G MEN’S COMPANY, INC.
	 	HLCTMW00000575	 	14-Dec-2010	 	24-Jan-2011	 	USD	 	 	69,436.32	 
	K AND G MEN’S COMPANY, INC.
	 	HLCTMW00000576	 	14-Dec-2010	 	15-Apr-2011	 	USD	 	 	1,286,890.20	 
	TMW PURCHASING LLC
	 	HLCTMW00000577	 	17-Dec-2010	 	04-Feb-2011	 	USD	 	 	194,041.47	 
	MOORES PURCHASING A DIVISION OF
	 	HLCTMW00000578	 	17-Dec-2010	 	08-Feb-2011	 	USD	 	 	55,290.40	 
	TMW PURCHASING LLC
	 	HLCTMW00000579	 	20-Dec-2010	 	06-Mar-2011	 	USD	 	 	23,623.67	 
	TMW PURCHASING LLC
	 	HLCTMW00000580	 	20-Dec-2010	 	06-Mar-2011	 	USD	 	 	54,240.62	 
	TMW PURCHASING LLC
	 	HLCTMW00000581	 	17-Dec-2010	 	06-Mar-2011	 	USD	 	 	50,061.71	 
	TMW PURCHASING LLC
	 	HLCTMW00000582	 	21-Dec-2010	 	04-Feb-2011	 	USD	 	 	5,305.61	 
	TMW PURCHASING LLC
	 	HLCTMW00000583	 	23-Dec-2010	 	20-Mar-2011	 	USD	 	 	40,509.90	 
	TMW PURCHASING LLC
	 	HLCTMW00000584	 	23-Dec-2010	 	20-Mar-2011	 	USD	 	 	78,887.70	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000585	 	24-Dec-2010	 	30-Apr-2011	 	USD	 	 	16,327.69	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000586	 	24-Dec-2010	 	31-Mar-2011	 	USD	 	 	18,400.80	 
	MOORES PURCHASING A DIVISION OF
	 	HLCTMW00000588	 	31-Dec-2010	 	08-Mar-2011	 	USD	 	 	325,301.60	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000589	 	30-Dec-2010	 	30-Apr-2011	 	USD	 	 	158,233.43	 
	DIMENSIONS CLOTHING LIMITED
	 	HLCTMW00000590	 	30-Dec-2010	 	28-Feb-2011	 	USD	 	 	115,028.21	 
	K AND G MEN’S COMPANY, INC.
	 	HLCTMW00000591	 	06-Jan-2011	 	22-May-2011	 	USD	 	 	1,539,562.50	 
	MOORES PURCHASING A DIVISION OF
	 	HLCTMW00000592	 	05-Jan-2011	 	14-Feb-2011	 	USD	 	 	76,927.51	 
	TMW PURCHASING LLC
	 	HLCTMW00000593	 	05-Jan-2011	 	15-Feb-2011	 	USD	 	 	33,217.87	 
	MOORES PURCHASING A DIVISION OF
	 	HLCTMW00000594	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	23,859.13	 
	TMW PURCHASING LLC
	 	HLCTMW00000595	 	20-Jan-2011	 	04-Apr-2011	 	USD	 	 	127,926.00	 
	TMW PURCHASING LLC
	 	HLCTMW00000596	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	65,317.97	 
	TMW PURCHASING LLC
	 	HLCTMW00000597	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	101,769.77	 
	TMW PURCHASING LLC
	 	HLCTMW00000598	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	32,537.70	 
	TMW PURCHASING LLC
	 	HLCTMW00000599	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	48,527.83	 
	TMW PURCHASING LLC
	 	HLCTMW00000600	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	59,644.42	 
	TMW PURCHASING LLC
	 	HLCTMW00000601	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	39,108.28	 
	TMW PURCHASING LLC
	 	HLCTMW00000602	 	19-Jan-2011	 	01-Mar-2011	 	USD	 	 	174,296.39	 
	MWUK ACQUISITION COMPANY LTD
T/A ALEXANDER
	 	4L4I-732958	 	DEC 10, 2010	 	31-Mar-2011	 	USD	 	 	114,278.16	 
	MWUK ACQUISITION COMPANY LTD
T/A ALEXANDER
	 	4L4I-732959	 	DEC 10, 2010	 	04-Jun-2011	 	USD	 	 	21,772.17	 
	MWUK ACQUISITION COMPANY LTD
T/A ALEXANDER
	 	4L4I-733649	 	JAN 14, 2011	 	14-May-2011	 	USD	 	 	124,471.50	 
	MWUK ACQUISITION COMPANY LTD
T/A ALEXANDER
	 	4L4I-733859	 	JAN 20, 2011	 	15-Apr-2011	 	GBP	 	 	339,937.50	 
	DIMENSIONS CLOTHING LIMITED
	 	4L4I-733556	 	JAN 07, 2011	 	30-Apr-2011	 	USD	 	 	240,680.95	 
	DIMENSIONS CLOTHING LIMITED
	 	4L4I-733686	 	JAN 14, 2011	 	30-Apr-2011	 	USD	 	 	187,931.93	 
	DIMENSIONS CLOTHING LIMITED
	 	4L4I-733697	 	JAN 14, 2011	 	31-Mar-2011	 	USD	 	 	116,239.20	 
	DIMENSIONS CLOTHING LIMITED
	 	4L4I-733698	 	JAN 14, 2011	 	30-Jun-2011	 	USD	 	 	133,009.80	 
	DIMENSIONS CLOTHING LIMITED
	 	4L4I-733906	 	JAN 20, 2011	 	30-Apr-2011	 	USD	 	 	252,263.04	 
	DIMENSIONS CLOTHING LIMITED
	 	4L4I-733965	 	JAN 20, 2011	 	31-Jul-2011	 	USD	 	 	112,935.90