exv10w1






Exhibit 10.1




EXECUTION COPY




 

 













CREDIT AGREEMENT




dated as of




July 27, 2011




among




CHICO’S FAS, INC.




The Lenders Party Hereto




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




HSBC BANK USA, NATIONAL ASSOCIATION

as Syndication Agent




 






J.P. MORGAN SECURITIES LLC and HSBC BANK USA, NATIONAL ASSOCIATION

as Joint Bookrunners and Joint Lead Arrangers




 

 














 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I Definitions	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Defined Terms
	 	 	1	 
	SECTION 1.02.

	 	Classification of Loans and Borrowings
	 	 	18	 
	SECTION 1.03.

	 	Terms Generally
	 	 	18	 
	SECTION 1.04.

	 	Accounting Terms; GAAP
	 	 	18	 
	SECTION 1.05.

	 	Status of Obligations
	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE II The Credits	 	 	19	 
	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Commitments
	 	 	19	 
	SECTION 2.02.

	 	Loans and Borrowings
	 	 	19	 
	SECTION 2.03.

	 	Requests for Revolving Borrowings
	 	 	20	 
	SECTION 2.04.

	 	Intentionally Omitted
	 	 	20	 
	SECTION 2.05.

	 	Swingline Loans
	 	 	20	 
	SECTION 2.06.

	 	Letters of Credit
	 	 	21	 
	SECTION 2.07.

	 	Funding of Borrowings
	 	 	25	 
	SECTION 2.08.

	 	Interest Elections
	 	 	25	 
	SECTION 2.09.

	 	Termination and Reduction of Commitments
	 	 	26	 
	SECTION 2.10.

	 	Repayment of Loans; Evidence of Debt
	 	 	27	 
	SECTION 2.11.

	 	Prepayment of Loans
	 	 	27	 
	SECTION 2.12.

	 	Fees
	 	 	28	 
	SECTION 2.13.

	 	Interest
	 	 	29	 
	SECTION 2.14.

	 	Alternate Rate of Interest
	 	 	29	 
	SECTION 2.15.

	 	Increased Costs
	 	 	30	 
	SECTION 2.16.

	 	Break Funding Payments
	 	 	31	 
	SECTION 2.17.

	 	Taxes
	 	 	31	 
	SECTION 2.18.

	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	34	 
	SECTION 2.19.

	 	Mitigation Obligations; Replacement of Lenders
	 	 	36	 
	SECTION 2.20.

	 	Expansion Option
	 	 	36	 
	SECTION 2.21.

	 	Defaulting Lenders
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE III Representations and Warranties	 	 	39	 
	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Organization; Powers; Subsidiaries
	 	 	39	 
	SECTION 3.02.

	 	Authorization; Enforceability
	 	 	39	 
	SECTION 3.03.

	 	Governmental Approvals; No Conflicts
	 	 	40	 
	SECTION 3.04.

	 	Financial Condition; No Material Adverse Change
	 	 	40	 
	SECTION 3.05.

	 	Properties
	 	 	40	 
	SECTION 3.06.

	 	Litigation, Environmental and Labor Matters
	 	 	40	 
	SECTION 3.07.

	 	Compliance with Laws and Agreements
	 	 	41	 
	SECTION 3.08.

	 	Investment Company Status
	 	 	41	 
	SECTION 3.09.

	 	Taxes
	 	 	41	 
	SECTION 3.10.

	 	ERISA
	 	 	41	 
	SECTION 3.11.

	 	Disclosure
	 	 	41	 






 









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 3.12.

	 	Federal Reserve Regulations
	 	 	41	 
	SECTION 3.13.

	 	Liens
	 	 	41	 
	SECTION 3.14.

	 	No Default
	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE IV Conditions	 	 	42	 
	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Effective Date
	 	 	42	 
	SECTION 4.02.

	 	Each Credit Event
	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE V Affirmative Covenants	 	 	43	 
	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Financial Statements and Other Information
	 	 	43	 
	SECTION 5.02.

	 	Notices of Material Events
	 	 	44	 
	SECTION 5.03.

	 	Existence; Conduct of Business
	 	 	45	 
	SECTION 5.04.

	 	Payment of Obligations
	 	 	45	 
	SECTION 5.05.

	 	Maintenance of Properties; Insurance
	 	 	45	 
	SECTION 5.06.

	 	Books and Records; Inspection Rights
	 	 	45	 
	SECTION 5.07.

	 	Compliance with Laws and Material Contractual Obligations
	 	 	45	 
	SECTION 5.08.

	 	Use of Proceeds
	 	 	45	 
	SECTION 5.09.

	 	Subsidiary Guaranty
	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE VI Negative Covenants	 	 	46	 
	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Indebtedness
	 	 	46	 
	SECTION 6.02.

	 	Liens
	 	 	47	 
	SECTION 6.03.

	 	Fundamental Changes and Asset Sales
	 	 	48	 
	SECTION 6.04.

	 	Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	49	 
	SECTION 6.05.

	 	Swap Agreements
	 	 	50	 
	SECTION 6.06.

	 	Transactions with Affiliates
	 	 	50	 
	SECTION 6.07.

	 	Restricted Payments
	 	 	50	 
	SECTION 6.08.

	 	Restrictive Agreements
	 	 	51	 
	SECTION 6.09.

	 	Subordinated Indebtedness and Amendments to Subordinated
Indebtedness Documents
	 	 	51	 
	SECTION 6.10.

	 	Sale and Leaseback Transactions
	 	 	51	 
	SECTION 6.11.

	 	Financial Covenants
	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE VII Events of Default	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE VIII The Administrative Agent	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE IX Miscellaneous	 	 	56	 
	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Notices
	 	 	56	 
	SECTION 9.02.

	 	Waivers; Amendments
	 	 	57	 
	SECTION 9.03.

	 	Expenses; Indemnity; Damage Waiver
	 	 	58	 
	SECTION 9.04.

	 	Successors and Assigns
	 	 	60	 






ii









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 9.05.

	 	Survival
	 	 	62	 
	SECTION 9.06.

	 	Counterparts; Integration; Effectiveness
	 	 	63	 
	SECTION 9.07.

	 	Severability
	 	 	63	 
	SECTION 9.08.

	 	Right of Setoff
	 	 	63	 
	SECTION 9.09.

	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	63	 
	SECTION 9.10.

	 	WAIVER OF JURY TRIAL
	 	 	64	 
	SECTION 9.11.

	 	Headings
	 	 	64	 
	SECTION 9.12.

	 	Confidentiality
	 	 	64	 
	SECTION 9.13.

	 	USA PATRIOT Act
	 	 	65	 
	SECTION 9.14.

	 	Releases of Subsidiary Guarantors
	 	 	65	 






iii









 






Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page
	SCHEDULES:

	 
	Schedule 2.01 — Commitments

	Schedule 3.01 — Subsidiaries

	Schedule 6.01 — Existing Indebtedness

	Schedule 6.02 — Existing Liens

	Schedule 6.04 — Existing Investments

	 
	EXHIBITS:

	 
	Exhibit A — Form of Assignment and Assumption

	Exhibit B — Form of Opinion of Loan Parties’ Counsel

	Exhibit C — Form of Increasing Lender Supplement

	Exhibit D — Form of Augmenting Lender Supplement

	Exhibit E — List of Closing Documents

	Exhibit F — Form of Subsidiary Guaranty

	Exhibit G-1 — Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Not Partnerships)

	Exhibit G-2 — Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Partnerships)

	Exhibit G-3 — Form of U.S. Tax Certificate (Non-U.S. Participants That Are Not Partnerships)

	Exhibit G-4 — Form of U.S. Tax Certificate (Non-U.S. Participants That Are Partnerships)








iv











 





          CREDIT AGREEMENT (this “Agreement”) dated as of July 27, 2011 among CHICO’S FAS,
INC., the LENDERS from time to time party hereto, JPMORGAN CHASE BANK, N.A., as Administrative
Agent and HSBC BANK USA, NATIONAL ASSOCIATION, as Syndication Agent.



          The parties hereto agree as follows:



ARTICLE I




Definitions



          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



          “ABR”, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans
comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base
Rate.



          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.



          “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.



          “Aggregate Commitment” means the aggregate of the Commitments of all of the Lenders,
as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the
Effective Date, the Aggregate Commitment is $70,000,000.



          “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided
that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate
appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted LIBO Rate, respectively.



          “Applicable Percentage” means, with respect to any Lender, the percentage of the
Aggregate Commitment represented by such Lender’s Commitment; provided that, in the case of
Section 2.21 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the
percentage of the Aggregate Commitment (disregarding any Defaulting Lender’s Commitment)
represented by such Lender’s Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall



 









 




be determined based upon the Commitments most recently in effect, giving effect to any
assignments and to any Lender’s status as a Defaulting Lender at the time of determination.




          “Applicable Rate” means, for any day, with respect to any Eurodollar Revolving Loan or
any ABR Revolving Loan or with respect to the commitment fees payable hereunder, as the case may
be, the applicable rate per annum set forth below under the caption “Eurodollar Spread”, “ABR
Spread” or “Commitment Fee Rate”, as the case may be, based upon the Leverage Ratio applicable on
such date:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurodollar	 	 	ABR	 	 	Commitment	 
	 	 	Leverage Ratio:	 	Spread	 	 	Spread	 	 	Fee Rate	 
	Category 1:
	 	< 2.00 to 1.00	 	 	1.25	%	 	 	0.25	%	 	 	0.375	%
	Category 2:
	 	≥ 2.00 to 1.00 but	 	 	1.50	%	 	 	0.50	%	 	 	0.375	%
	 
	 	< 2.50 to 1.00	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3:
	 	≥ 2.50 to 1.00 but	 	 	1.75	%	 	 	0.75	%	 	 	0.50	%
	 
	 	< 3.00 to 1.00	 	 	 	 	 	 	 	 	 	 	 	 
	Category 4:
	 	> 3.00 to 1.00	 	 	2.00	%	 	 	1.00	%	 	 	0.55	%






          For purposes of the foregoing,




     (i) if at any time the Borrower fails to deliver the Financials on or before the date
the Financials are due pursuant to Section 5.01, Category 4 shall be deemed applicable for
the period commencing three (3) Business Days after the required date of delivery and ending
on the date which is three (3) Business Days after the Financials are actually delivered,
after which the Category shall be determined in accordance with the table above as
applicable;




     (ii) adjustments, if any, to the Category then in effect shall be effective three (3)
Business Days after the Administrative Agent has received the applicable Financials (it
being understood and agreed that each change in Category shall apply during the period
commencing on the effective date of such change and ending on the date immediately preceding
the effective date of the next such change); and




     (iii) notwithstanding the foregoing, Category 2 shall be deemed to be applicable until
the Administrative Agent’s receipt of the applicable Financials for the Borrower’s first
fiscal quarter ending after the Effective Date (unless such Financials demonstrate that
Category 3 or 4 should have been applicable during such period, in which case such other
Category shall be deemed to be applicable during such period) and adjustments to the
Category then in effect shall thereafter be effected in accordance with the preceding
paragraphs.



          “Approved Fund” has the meaning assigned to such term in Section 9.04.



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



2









 





          “Augmenting Lender” has the meaning assigned to such term in Section 2.20.



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



          “Available Revolving Commitment” means, at any time with respect to any Lender, the
Commitment of such Lender then in effect minus the Revolving Credit Exposure of such Lender at such
time; it being understood and agreed that any Lender’s Swingline Exposure shall not be deemed to be
a component of the Revolving Credit Exposure for purposes of calculating the commitment fee under
Section 2.12(a).



          “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business 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, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.



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



          “Borrower” means Chico’s FAS, Inc., a Florida corporation, and its successors provided
that upon consummation of a Holding Company Reorganization in compliance with Section 6.03, the
Holding Company shall thereafter be the Borrower for purposes hereof, except that any reference
made to the Borrower as of a specific date prior to any such Holding Company Reorganization shall
continue to refer to Chico’s FAS, Inc.



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



          “Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.



          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in Dollars in the
London interbank market.



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



3









 





          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity
Interests representing more than 35% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests of the Borrower; (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower (or, in the event of any merger, consolidation
or reorganization the principal purpose of which is to form a holding company or effect a similar
reorganization as to form, the board of directors of the original Borrower) nor (ii) appointed by
directors so nominated; or (c) the occurrence of a change in control, or other similar provision,
as defined in any agreement or instrument evidencing any Material Indebtedness (triggering a
default or mandatory prepayment, which default or mandatory prepayment has not been waived in
writing).



          “Change in Law” means the occurrence, after the date of this Agreement (or with
respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority, or (c) the making or issuance of any request, rules,
guideline, requirement or directive (whether or not having the force of law) by any Governmental
Authority; provided however, that notwithstanding anything herein to the contrary,
(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines, requirements and directives thereunder, issued in connection therewith or in
implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of
the date enacted, adopted, issued or implemented.



          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.



          “Code” means the Internal Revenue Code of 1986.



          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant
to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender
shall have assumed its Commitment, as applicable.



          “Consolidated Capital Expenditures” means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a fixed or capital
asset on a consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance
with GAAP.



          “Consolidated EBITDA” means, for any period, Consolidated Net Income plus, to
the extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) depreciation, (iv) amortization, (v) extraordinary or
non-recurring non-cash expenses or losses incurred other than in the ordinary course of business,
(vi) extraordinary or non-recurring cash expenses, charges or losses in an aggregate amount (for
all periods commencing on or



4









 




after the Effective Date) not to exceed $75,000,000, (vii) extraordinary or non-recurring
expenses, charges or losses incurred other than in the ordinary course of business and related to a
Permitted Acquisition, (viii) non-cash expenses related to stock based compensation, minus,
to the extent included in Consolidated Net Income, (1) interest income, (2) any cash payments made
in respect of items described in clause (vii) above greater than two years after the effective date
of the Permitted Acquisition that were classified as a non-cash charge, expense or loss in a
previous period and (3) income or gains realized other than in the ordinary course of business, all
calculated for the Borrower and its Subsidiaries in accordance with GAAP on a consolidated basis.
For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a “Reference Period”), (i) if at any time during such Reference Period the
Borrower or any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for
such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the property that is the subject of such Material Disposition for such Reference
Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable
thereto for such Reference Period, and (ii) if during such Reference Period the Borrower or any
Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving effect thereto on a Pro Forma Basis as if such Material
Acquisition occurred on the first day of such Reference Period. As used in this definition,
“Material Acquisition” means any acquisition of property or series of related acquisitions of
property that (a) constitutes (i) assets comprising all or substantially all or any significant
portion of a business or operating unit of a business, or (ii) all or substantially all of the
common stock or other Equity Interests of a Person, and (b) involves the payment of consideration
by the Borrower and its Subsidiaries in excess of $150,000,000; and “Material Disposition” means
any sale, transfer or disposition of property or series of related sales, transfers, or
dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in
excess of $150,000,000.




          “Consolidated EBITDAR” means, with reference to any period, Consolidated EBITDA
plus, to the extent deducted from revenues in determining Consolidated Net Income,
Consolidated Rental Expense, all calculated for the Borrower and its Subsidiaries in accordance
with GAAP on a consolidated basis.



          “Consolidated Funded Indebtedness” means at any time the sum, without duplication, of
(a) the aggregate Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated
basis as of such time in accordance with GAAP, (b) the aggregate amount of Indebtedness of the
Borrower and its Subsidiaries relating to the maximum drawing amount of all letters of credit
outstanding and bankers acceptances and (c) Indebtedness of the type referred to in clauses (a) or
(b) hereof of another Person guaranteed by the Borrower or any of its Subsidiaries.



          “Consolidated Interest Expense” means, with reference to any period, the interest
expense (including without limitation interest expense under Capital Lease Obligations that is
treated as interest in accordance with GAAP) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period with respect to all outstanding Indebtedness of the Borrower and
its Subsidiaries allocable to such period in accordance with GAAP (including, without limitation,
all commissions, discounts and other fees and charges owed with respect to letters of credit and
bankers acceptance financing and net costs under interest rate Swap Agreements to the extent such
net costs are allocable to such period in accordance with GAAP). In the event that the Borrower or
any Subsidiary shall have completed a Material Acquisition or a Material Disposition since the
beginning of the relevant period, Consolidated Interest Expense shall be determined for such period
on a Pro Forma Basis as if such acquisition or disposition, and any related incurrence or repayment
of Indebtedness, had occurred at the beginning of such period.



5









 





          “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Borrower and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis (without duplication) for such period; provided that there shall be excluded any
income (or loss) of any Person other than the Borrower or a Subsidiary, but any such income so
excluded may be included in such period or any later period to the extent of any cash dividends or
distributions actually paid in the relevant period to the Borrower or any wholly-owned Subsidiary
of the Borrower.



          “Consolidated Rental Expense” means, with reference to any period, the aggregate fixed
amounts payable by the Borrower and its Subsidiaries under any operating leases, excluding any
leases that can be terminated without premium or penalty and without any other payments after such
termination, calculated on a consolidated basis for the Borrower and its Subsidiaries for such
period in accordance with GAAP.



          “Consolidated Total Assets” means, as of the date of any determination thereof, total
assets of the Borrower and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis as of such date.



          “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 Event” means a Borrowing, the issuance of a Letter of Credit, an LC
Disbursement or any of the foregoing.



          “Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender
or any other Lender.



          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



          “Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any
portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any
Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause
(i) above, such Lender notifies the Administrative Agent in writing that such failure is the result
of such Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (b) has notified
the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it
does not intend or expect to comply with any of its funding obligations under this Agreement
(unless such writing or public statement indicates that such position is based on such Lender’s
good faith determination that a condition precedent (specifically identified and including the
particular default, if any) to funding a loan under this Agreement cannot be satisfied) or
generally under other agreements in which it commits to extend credit, (c) has failed, within three
(3) Business Days after request by a Credit Party, acting in good faith, to provide a certification
in writing from an authorized officer of such Lender that it will comply with 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 under this Agreement, provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt
of such certification in form and substance satisfactory to it and the Administrative Agent, or (d)
has become the subject of a Bankruptcy Event.



          “Dollars” or “$” refers to lawful money of the United States of America.



6









 





          “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America.



          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).



          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) 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.



          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any of the foregoing.



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



          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.



          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) 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 Plan; (e) 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 Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Borrower or
any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) 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 upon the Borrower or any of its ERISA
Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.



7









 





          “Eurodollar”, when used in reference to any Loan or Borrowing, means that such Loan,
or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the
Adjusted LIBO Rate.



          “Event of Default” has the meaning assigned to such term in Article VII.



          “Excluded Taxes” means, with respect to any payment made by any Loan Party under any
Loan Document, any of the following Taxes imposed on or with respect to a Recipient:



          (a) income or franchise Taxes imposed on (or measured by) net income by the United States of
America, or by the jurisdiction under the laws of which such Recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located;



          (b) any branch profits Taxes imposed by the United States of America or any similar Taxes
imposed by any other jurisdiction in which the Borrower is located; and



          (c) in the case of a Non U.S. Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any U.S. Federal withholding Taxes resulting from any law in
effect (including FATCA) on the date such Non U.S. Lender becomes a party to this Agreement (or
designates a new lending office) or is attributable to such Non U.S. Lender’s failure to comply
with Section 2.17(f), except to the extent that such Non U.S. Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding Taxes pursuant to Section 2.17(a).



          “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement, and any current or future regulations or official interpretations thereof.



          “Federal Funds Effective Rate” means, for any day, 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 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.



          “Financials” means the annual or quarterly financial statements, and accompanying
certificates and other documents, of the Borrower and its Subsidiaries required to be delivered
pursuant to Section 5.01(a) or 5.01(b).



          “Fixed Charge Coverage Ratio” has the meaning assigned to such term in Section
6.11(b).



          “GAAP” means generally accepted accounting principles in the United States of America.



          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority,



8









 




instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness 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 or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness 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 Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



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



          “Holding Company” means a corporation or other legal entity organized under the laws
of a State of the United States which becomes the direct or indirect owner of Equity Interests of
the original Borrower and its Subsidiaries pursuant to a Holding Company Reorganization.



          “Holding Company Reorganization” means a transaction or series of transactions
pursuant to which the original Borrower becomes a direct or indirect wholly-owned subsidiary of the
Holding Company.



          “Increasing Lender” has the meaning assigned to such term in Section 2.20.



          “Incremental Term Loan” has the meaning assigned to such term in Section 2.20.



          “Incremental Term Loan Amendment” has the meaning assigned to such term in Section
2.20.



          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services, the payment of which is
not contingent, (e) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed;
provided that if recourse for the payment of such Indebtedness is limited exclusively to
such property and such Person has absolutely no personal liability with respect thereto, the amount
of such Indebtedness shall equal the lesser of (A) the fair market value of such property and (B)
the amount of Indebtedness so secured, (f) all Guarantees by such Person of Indebtedness of others
(without duplication), (g) all Capital Lease Obligations of such Person, (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances and (j) all obligations of such Person under Sale and Leaseback Transactions.



9









 




Indebtedness shall not include accounts payable incurred in the ordinary course of business
and accrued liabilities in the ordinary course of business, all determined in accordance with GAAP.
The Indebtedness of any Person shall include the Indebtedness 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 Indebtedness provide that such Person is not liable therefor.
Notwithstanding the foregoing, Indebtedness shall not include (w) unsecured trade payables that are
paid to banks, factors or other third parties that provide financing of vendor receivables in the
ordinary course of business of the Borrowers to the extent any such trade payables are deemed to be
indebtedness solely as a result of requirements under GAAP; (x) trade letters of credit; (y) Swap
Agreements; and (z) operating leases as defined under GAAP as of the Effective Date to the extent
that such leases are deemed to be Indebtedness solely as a result of any change in the requirements
under GAAP after the Effective Date.




          “Indemnified Taxes” means Taxes (including Other Taxes) other than Excluded Taxes,
imposed on or with respect to any payment made by any Loan Party under any Loan Document.



          “Information Memorandum” means the Confidential Information Memorandum dated June 2011
relating to the Borrower and the Transactions.



          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.08.



          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December and the Maturity Date, (b) with
respect to any Eurodollar 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 Eurodollar 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 the
Maturity Date and (c) with respect to any Swingline Loan, the day that such Loan is required to be
repaid and the Maturity Date.



          “Interest Period” means with respect to any Eurodollar 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 six months thereafter, as the Borrower may elect;
provided, that (i) 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, in the case of a
Eurodollar Borrowing only, 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 (ii) any
Interest Period pertaining to a Eurodollar Borrowing 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, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such Borrowing.



          “IRS” means the United States Internal Revenue Service.



          “Issuing Bank” means JPMorgan Chase Bank, N.A., in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.06(i).
The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.



10









 





          “LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).



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



          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.



          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or 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
Lender.



          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.



          “Leverage Ratio” has the meaning assigned to such term in Section 6.11(a).



          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate quotations comparable
to those currently provided on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates applicable to deposits in
Dollars in the London interbank market) at approximately 11:00 a.m., London time, two (2) Business
Days prior to the commencement of such Interest Period, as the rate for deposits in Dollars with a
maturity comparable to such Interest Period. In the event that such rate is not available at such
time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which deposits in Dollars in an amount equal to
$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, two (2) Business Days prior to the commencement of
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, (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 Documents” means this Agreement, any promissory notes issued pursuant to Section
2.10(e) of this Agreement, any Letter of Credit applications, the Subsidiary Guaranty, and all
other agreements, instruments, documents and certificates identified in Section 4.01 executed and
delivered to, or in favor of, the Administrative Agent or any Lenders and including all other
pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit agreements
and all other written matter whether heretofore, now or hereafter executed by or on behalf of any
Loan Party, or any employee of any Loan Party, and delivered to the Administrative Agent or any
Lender in connection with this Agreement or the transactions contemplated hereby. Any reference in
this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits
or schedules thereto, and all amendments, restatements, supplements or other modifications thereto,
and shall refer to this Agreement



11









 




or such Loan Document as the same may be in effect at any and all times such reference becomes
operative.




          “Loan Parties” means, collectively, the Borrower and the Subsidiary Guarantors.



          “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.



          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, condition (financial or otherwise) of the Borrower and the Subsidiaries, taken as a
whole or (b) the validity or enforceability of this Agreement or any and all other Loan Documents
or the rights or remedies of the Administrative Agent and the Lenders thereunder, taken as a whole.



          “Material Domestic Subsidiary” means each Domestic Subsidiary (i) which, as of the
most recent fiscal quarter of the Borrower, for the period of four consecutive fiscal quarters then
ended, for which financial statements have been delivered pursuant to Section 5.01, contributed
greater than ten percent (10%) of the Borrower’s Consolidated EBITDA for such period or (ii) which
contributed greater than ten percent (10%) of the Borrower’s Consolidated Total Assets as of such
date;provided that, if at any time the aggregate amount of the EBITDA or consolidated total assets
of all Domestic Subsidiaries that are not Material Domestic Subsidiaries exceeds fifteen percent
(15%) of the Borrower’s Consolidated EBITDA for any such period or fifteen percent (15%) of the
Borrower’s Consolidated Total Assets as of the end of any such fiscal quarter, the Borrower (or, in
the event the Borrower has failed to do so within ten (10) days, the Administrative Agent) shall
designate sufficient Domestic Subsidiaries as “Material Domestic Subsidiaries” to eliminate such
excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute
Material Domestic Subsidiaries.



          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $20,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.



          “Maturity Date” means July 27, 2016.



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



          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



          “Non-U.S. Lender” means a Lender that is not a U.S. Person.



          “Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities
and other obligations and indebtedness (including interest and fees accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed
or allowable in such proceeding), obligations and liabilities of any of the Borrower and its
Subsidiaries to any of the Lenders, the Administrative Agent, the Issuing Bank or any indemnified
party, individually or collectively, existing on the Effective Date or arising thereafter, direct
or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by



12









 




contract, operation of law or otherwise, arising or incurred under this Agreement or any of
the other Loan Documents or in respect of any of the Loans made or reimbursement or other
obligations incurred or any of the Letters of Credit or other instruments at any time evidencing
any thereof.




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



          “Other Taxes” means any present or future stamp, court, documentary, intangible,
recording, filing or similar excise or property Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, or from the registration,
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes that are Other Connection Taxes imposed with respect to an
assignment (other than an assignment under Section 2.19(b)).



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



          “Participant” has the meaning set forth in Section 9.04.



          “Participant Register” has the meaning set forth in Section 9.04(c).



          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



          “Permitted Acquisition” means any acquisition (whether by purchase, merger,
consolidation or otherwise) or series of related acquisitions by the Borrower or any Subsidiary of
(i) all or substantially all the assets of or (ii) all or substantially all the Equity Interests
in, a Person or division or line of business of a Person, if, at the time of and immediately after
giving effect thereto, (a) no Default has occurred and is continuing or would arise after giving
effect thereto, (b) such Person or division or line of business is engaged in the same or a similar
line of business as the Borrower and the Subsidiaries or business reasonably related thereto, (c)
all actions required to be taken with respect to such acquired or newly formed Subsidiary under
Section 5.09 shall have been taken, (d) the Borrower and the Subsidiaries are in compliance, on a
pro forma basis after giving effect to such acquisition (but without giving effect to any synergies
or cost savings), with the covenants contained in Section 6.11 recomputed as of the last day of the
most recently ended fiscal quarter of the Borrower for which financial statements are available, as
if such acquisition (and any related incurrence or repayment of Indebtedness, with any new
Indebtedness being deemed to be amortized over the applicable testing period in accordance with its
terms) had occurred on the first day of each relevant period for testing such compliance and, if
the aggregate consideration paid in respect of such acquisition exceeds $150,000,000, the Borrower
shall have delivered to the Administrative Agent a certificate of a Financial Officer of the
Borrower to such effect, together with all relevant financial information, statements and
projections requested by the Administrative Agent and (e) in the case of an acquisition or merger
involving the Borrower or a Subsidiary, the Borrower or such Subsidiary is the surviving entity of
such merger and/or consolidation or is part of a Holding Company Reorganization consummated in
compliance with Section 6.03.



          “Permitted Encumbrances” means:



13









 





          (a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance
with Section 5.04;



          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than thirty (30) days or are being contested in compliance with Section 5.04;



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



          (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;



          (e) judgment Liens in respect of judgments that do not constitute an Event of Default under
clause (j) of Article VII;



          (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary;



          (g) statutory Liens in favor of landlords with respect to assets at leased premises in a state
that provides for statutory Liens in favor of landlords or Liens arising under leases entered into
by a Loan Party in the ordinary course of business; and



          (h) Liens in favor of a credit card processor arising in the ordinary course of business under
any processor agreement;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Investments” means:



          (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;



          (b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or
from Moody’s;



          (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;



          (d) fully collateralized repurchase agreements with a term of not more than thirty (30) days
for securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;



14









 





          (e) any other investments permitted by the Borrower’s investment policy as approved by its
board of directors and as such policy is in effect, and as disclosed to the Administrative Agent,
prior to the Effective Date and as such policy may be amended, restated, supplemented or otherwise
modified from time to time with the consent of the Administrative Agent, such consent shall not be
unreasonably withheld and shall be deemed provided unless the Administrative Agent objects thereto
within ten (10) Business Days of receiving notice of any such amendment, restatement, supplement or
other modification; and



          (f) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have
portfolio assets of at least $5,000,000,000.



          “Permitted RP Amount” means, at any time, an amount equal to the excess of (a) the
amount of unrestricted and unencumbered cash and Permitted Investments maintained by the Borrower
at such time over (b) the sum of (i) $10,000,000, plus (ii) the Run Rate Dividend Amount at
such time, plus (iii) Consolidated Funded Indebtedness (excluding any issued but undrawn
letters of credit) at such time.



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



          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.



          “Pro Forma Basis” means, with respect to any event, that the Borrower is in compliance
on a pro forma basis with the applicable covenant, calculation or requirement
herein recomputed as if the event with respect to which compliance on a Pro Forma Basis is being
tested had occurred on the first day of the four fiscal quarter period most recently ended on or
prior to such date for which financial statements have been delivered pursuant to Section 5.01.



          “Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c)
the Issuing Bank.



          “Register” has the meaning set forth in Section 9.04.



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



          “Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.



          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any




15











 





payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such Equity Interests in the Borrower or any Subsidiary or any option, warrant
or other right to acquire any such Equity Interests in the Borrower or any Subsidiary.



          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.


          “Revolving Loan” means a Loan made pursuant to Section 2.01.


          “Run Rate Dividend Amount” means, at any time, an amount equal to the product of (a)
the aggregate dollar amount of the Borrower’s declared dividend during the then current fiscal
quarter multiplied by (b) 4.


          “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services
LLC business.


          “Sale and Leaseback Transaction” means any sale or other transfer of any property or
asset by any Person with the intent to lease such property or asset as lessee.


          “SEC” means the United States Securities and Exchange Commission.


          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such Regulation D of the
Board. Eurodollar 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 of the Board or any
comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.


          “Subordinated Indebtedness” means any Indebtedness of the Borrower or any Subsidiary
the payment of which is subordinated to payment of the obligations under the Loan Documents.


          “Subordinated Indebtedness Documents” means any document, agreement or instrument
evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated
Indebtedness.


          “subsidiary” means, with respect to any Person (the “parent”) at 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) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests 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.



16









 







          “Subsidiary” means any subsidiary of the Borrower.


          “Subsidiary Guarantor” means each Material Domestic Subsidiary that is a party to the
Subsidiary Guaranty. The Subsidiary Guarantors on the Effective Date are identified as such in
Schedule 3.01 hereto.


          “Subsidiary Guaranty” means that certain Guaranty dated as of the Effective Date in
the form of Exhibit F (including any and all supplements thereto) and executed by each
Subsidiary Guarantor, as amended, restated, supplemented or otherwise modified from time to time.


          “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.


          “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 Applicable Percentage of the total Swingline Exposure at such time.


          “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.


          “Swingline Loan” means a Loan made pursuant to Section 2.05.


          “Syndication Agent” means HSBC Bank USA, National Association in its capacity as
syndication agent for the credit facility evidenced by this Agreement.


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


          “Transactions” means the execution, delivery and performance by the Loan Parties of
this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder.


          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.


          “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)
of the Code.


          “U.S. Tax Certificate” has the meaning assigned to such term in Section
2.17(f)(ii)(D)(2).


          “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.



17









 







          “Withholding Agent” means any Loan Party and the Administrative Agent.


          SECTION 1.02. 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 “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Borrowing”).


          SECTION 1.03. 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”. The word
“law” shall be construed as referring to all statutes, rules, regulations, codes and other laws
(including official rulings and interpretations thereunder having the force of law or with which
affected Persons customarily comply), and all judgments, orders and decrees, of all Governmental
Authorities. 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, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, restatements, supplements or
modifications set forth herein), (b) any definition of or reference to any statute, rule or
regulation shall be construed as referring thereto as from time to time amended, supplemented or
otherwise modified (including by succession of comparable successor laws), (c) any reference herein
to any Person shall be construed to include such Person’s successors and assigns (subject to any
restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any
other Governmental Authority that shall have succeeded to any or all functions thereof, (d) 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, (e) 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 and (f) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.


          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof 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
provision amended in accordance herewith. Notwithstanding any other provision contained herein,
all terms of an accounting or financial nature used herein shall be construed, and all computations
of amounts and ratios referred to herein shall be made (i) without giving effect to any election
under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification
or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or
other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein, (ii)
without giving effect to any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or
Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in
a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be
valued at the full stated



18









 







principal amount thereof and (iii) in a manner such that any obligations relating to a lease that
was accounted for by a Person as an operating lease as of the Effective Date and any similar lease
entered into after the Effective Date by such Person shall be accounted for as obligations relating
to an operating lease and not as Capital Lease Obligations.


          SECTION 1.05. Status of Obligations. In the event that the Borrower or any other Loan
Party shall at any time issue or have outstanding any Subordinated Indebtedness, the Borrower shall
take or cause such other Loan Party to take all such actions as shall be necessary to cause the
Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated
Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any
payment blockage or other remedies available or potentially available to holders of senior
indebtedness under the terms of such Subordinated Indebtedness. Without limiting the foregoing,
the Obligations are hereby designated as “senior indebtedness” and as “designated senior
indebtedness” and words of similar import under and in respect of any indenture or other agreement
or instrument under which such Subordinated Indebtedness is outstanding and are further given all
such other designations as shall be required under the terms of any such Subordinated Indebtedness
in order that the Lenders may have and exercise any payment blockage or other remedies available or
potentially available to holders of senior indebtedness under the terms of such Subordinated
Indebtedness.



ARTICLE II




The Credits


          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Borrower in Dollars from time to time during the
Availability Period in an aggregate principal amount that will not result in (a) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the sum of the total Revolving
Credit Exposures exceeding the Aggregate Commitment. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans.


          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender’s failure to make Loans as required. Any Swingline Loan shall be made in
accordance with the procedures set forth in Section 2.05.


          (b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the
provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent
as to such Lender); provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.


          (c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused



19









 








balance of the Aggregate Commitment or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is
an integral multiple of $100,000 and not less than $500,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any time be more than a
total of ten (10) Eurodollar Revolving Borrowings outstanding.



          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.


          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, one (1) Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:


          (i) the aggregate amount of the requested Borrowing;


          (ii) the date of such Borrowing, which shall be a Business Day;


          (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.



If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.



          SECTION 2.04. Intentionally Omitted.


          SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans in Dollars 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 sum of the total Revolving Credit Exposures exceeding the Aggregate
Commitment; provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding



20









 








Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay 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, New York City time, on the
day of a proposed Swingline Loan. 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 Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.


          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline 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 Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender 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 payments in respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or
other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender 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 Lender, as their interests may appear; provided that
any such payment so remitted shall be repaid to the Swingline Lender 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.


          SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit denominated
in Dollars for its own account, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.



21









 







          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal
or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the amount of the LC Exposure shall not exceed
$40,000,000 and (ii) the sum of the total Revolving Credit Exposures shall not exceed the Aggregate
Commitment.


          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earliest of (i) the date designated by the Borrower, (ii) the date one year after
the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (iii) the date that is five (5) Business
Days prior to the Maturity Date; provided that (x) any Letter of Credit may contain
customary automatic renewal provisions agreed upon by the Borrower and the Issuing Bank pursuant to
which the expiration date of such Letter of Credit shall automatically be extended for consecutive
periods of up to twelve (12) months (but not to a date later than the date that is one year after
the Maturity Date subject to the following proviso (y)) and (y) a Letter of Credit may expire up to
one year beyond the Maturity Date so long as the Borrower cash collateralizes 100% of the face
amount of such Letter of Credit plus any accrued and unpaid interest and fees thereon by no later
than ninety (90) days prior to the Maturity Date pursuant to cash collateral arrangements
reasonably satisfactory to the Administrative Agent and the Issuing Bank.


          (d) Participations. 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
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
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.


          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent in Dollars the amount equal to such LC Disbursement, calculated as of the date the Issuing
Bank made such LC Disbursement not later than 1:00 p.m., New York City time, on the date that



22









 








such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 1:00 p.m., New York
City time, on the Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt; provided
that the Borrower may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing
or Swingline Loan in an equivalent amount of such LC Disbursement and, to the extent so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such payment when due,
the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in
Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment
made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.



          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, 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 (irrespective of any of the circumstances referred to in the
preceding sentence), 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 the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the 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 Issuing Bank (as finally determined by a court of competent
jurisdiction), the 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



23









 








of a Letter of Credit, the 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.



          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Lenders with respect to any such LC Disbursement.


          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for
the account of such Lender to the extent of such payment.


          (i) Replacement of Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit then outstanding and issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.


          (j) Cash Collateralization. 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 Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the Lenders (the “LC Collateral
Account”), an amount in cash equal to 100% of the amount of the LC Exposure as of such date
plus any accrued and unpaid interest and fees 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 with respect to the Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral for the payment and performance of
the Obligations. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Cash collateral



24









 








shall be maintained in blocked interest-bearing accounts at JPMorgan Chase Bank, N.A.
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 Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders
with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy
other 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.



          SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders in an amount equal to such Lender’s Applicable
Percentage; provided that Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City or Chicago and designated by the Borrower in the applicable
Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent
to the Issuing Bank.


          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.


          SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The 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 Borrowings, which may not be converted or continued.


          (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting




25









 








from such
election to be made on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower. Notwithstanding any contrary provision herein,
this Section shall not be construed to permit the Borrower to elect an Interest Period for
Eurodollar Loans that does not comply with Section 2.02(d).



          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




	(i)	 	the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);






     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which Interest Period shall be a
period contemplated by the definition of the term “Interest Period”.



If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.



          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.


          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.


          SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.


          (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the Aggregate
Commitment.




26









 







          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three (3) Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.


          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of (x) the Maturity
Date and (y) the date that is at least two (2) Business Days after such Swingline Loan is made but
no later than ten (10) Business Days after such Swingline Loan is made; provided that on
each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.


          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the 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 the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.


          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section 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 affect the obligation
of the Borrower to repay the Loans 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, the Borrower shall prepare, execute and deliver (occurring outside of the State of Florida,
if so requested by the Borrower) to such Lender a promissory note payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form
approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to Section 9.04) 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).


          SECTION 2.11. Prepayment of Loans. The Borrower shall have the right at any time and
from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance
with the provisions of this Section 2.11. The Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed
by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving
Borrowing, not later




27









 








than 11:00 a.m., New York City time, three (3) Business Days before the date
of prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, on the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment
is given in connection with a conditional notice of termination of the Commitments as contemplated
by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09. Promptly following receipt of any such notice relating to
a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in
the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by
Section 2.13 and (ii) break funding payments pursuant to Section 2.16. If at any time the sum of
the aggregate principal amount of all of the Revolving Credit Exposures exceeds the Aggregate
Commitment, the Borrower shall immediately repay Borrowings or cash collateralize LC Exposure in an
account with the Administrative Agent pursuant to Section 2.06(j), as applicable, in an aggregate
principal amount sufficient to cause the aggregate principal amount of all Revolving Credit
Exposures to be less than or equal to the Aggregate Commitment.



          SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily amount of the Available Revolving Commitment of such Lender during the period from
and including the Effective Date to but excluding the date on which such Lender’s Commitment
terminates; provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such commitment fee shall continue to accrue on the average
daily amount of such Lender’s Revolving Credit Exposure from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued commitment fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof. 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).


          (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure and (ii) to the Issuing Bank for its own
account a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) attributable to Letters of Credit issued by the Issuing Bank during the period from
and including the Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s
standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation,
transfer, presentment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Unless otherwise specified above, participation fees and fronting fees accrued through
and including the last day of March, June, September and December of
each year shall be payable on the third (3rd) Business Day following such last day, commencing
on the first such date to occur after the Effective Date; provided that all such fees shall
be payable on the date on which the Commitments terminate and any such fees accruing after the date
on which the Commitments





28









 








terminate shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within ten (10) days after demand. All
participation fees and fronting 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).



          (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.


          (d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders. Fees payable
hereunder and paid shall not be refundable under any circumstances.


          SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.


          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.


          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.


          (d) Accrued interest on each Revolving Loan shall be payable in arrears on each Interest
Payment Date for such Revolving Loan and upon termination of the Commitments; provided that
(i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving
Loan prior to the end of the Availability Period), 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 Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.


          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base 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). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.


          SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:


          (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or




29









 







          (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in
such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective and
any such Eurodollar Borrowing shall be repaid on the last day of the then current Interest Period
applicable thereto and (ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing,
such Borrowing shall be made as an ABR Borrowing.



          SECTION 2.15. Increased Costs. (a) If any Change in Law shall:




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




     (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein; or




     (iii) subject any Recipient to any Taxes on its loans, loan principal, letters of
credit, commitments, or other obligations, or its deposits, reserves, other liabilities or
capital attributable thereto (other than (A) Indemnified Taxes, (B) Excluded Taxes and (C)
Other Connection Taxes on gross or net income, profits or revenue (including value-added or
similar Taxes));



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan or of maintaining its obligation to make any such Loan or to increase the cost
to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder, whether of principal, interest or otherwise, then the Borrower will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction
suffered.



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




30









 







          (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as
the case may be, the amount shown as due on any such certificate within ten (10) days after receipt
thereof.


          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.


          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to
Section 2.11), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar
Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11 and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense attributable to such
event. 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 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
Dollars of a comparable amount and period from other banks in the eurodollar market. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10)
days after receipt thereof.


          SECTION 2.17. Taxes. (a) Withholding of Taxes; Gross-Up. Each payment by any
Loan Party under any Loan Document shall be made without withholding for any Taxes, unless such
withholding is required by any law. If any Withholding Agent determines, in its sole discretion
exercised in good faith, that it is so required to withhold Taxes, then such Withholding Agent may
so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental
Authority in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount
payable by such Loan Party shall be increased as necessary so that, net of such withholding
(including such withholding applicable to additional amounts payable under this Section), the
applicable Recipient receives the amount it would have received had no such withholding been made.


          (b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.




31









 







          (c) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.


          (d) Indemnification by the Borrower. The Borrower shall indemnify each Recipient for
any Indemnified Taxes that are paid or payable by such Recipient in connection with any Loan
Document (including amounts paid or payable under this Section 2.17(d)) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. The indemnity under this
Section 2.17(d) shall be paid within ten (10) days after the Recipient delivers to the Borrower a
certificate stating the amount of any Indemnified Taxes so paid or payable by such Recipient and
describing the basis for the indemnification claim. Such certificate shall be conclusive of the
amount so paid or payable absent manifest error. Such Recipient shall deliver a copy of such
certificate to the Administrative Agent.


          (e) Indemnification by the Lenders. Each Lender shall severally indemnify the
Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent
that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Loan Parties to do so) attributable to such Lender that
are paid or payable by the Administrative Agent or the applicable Loan Party (as applicable) in
connection with any Loan Document and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 2.17(e) shall be paid within ten (10) days
after the Administrative Agent delivers to the applicable Lender a certificate stating the amount
of Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of
the amount so paid or payable absent manifest error.


          (f) Status of Lenders. (i) Any Lender that is entitled to an exemption from, or
reduction of, any applicable withholding Tax with respect to any payments under any Loan Document
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the Administrative Agent as will permit such
payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject
to any withholding (including backup withholding) or information reporting requirements.
Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution
and submission of such documentation (other than such documentation set forth in Section
2.17(f)(ii)(A) through (E) below) shall not be required if in the Lender’s judgment such
completion, execution or submission would subject such Lender to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such Lender. Upon the
reasonable request of the Borrower or the Administrative Agent, any Lender shall update any form or
certification previously delivered pursuant to this Section 2.17(f). If any form or certification
previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any
respect with respect to a Lender, such Lender shall promptly (and in any event within ten (10) days
after such expiration, obsolescence or inaccuracy) notify the Borrower and the Administrative Agent
in
writing of such expiration, obsolescence or inaccuracy and update the form or certification if
it is legally eligible to do so.




32









 









     (ii) Without limiting the generality of the foregoing, if the Borrower is a U.S.
Person, any Lender with respect to the Borrower shall, if it is legally eligible to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies reasonably
requested by the Borrower and the Administrative Agent) on or prior to the date on which
such Lender becomes a party hereto, duly completed and executed copies of whichever of the
following is applicable:




     (A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that
such Lender is exempt from U.S. Federal backup withholding tax;




     (B) in the case of a Non-U.S. Lender claiming the benefits of an income tax
treaty to which the United States is a party (1) with respect to payments of
interest under any Loan Document, IRS Form W-8BEN establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of
such tax treaty and (2) with respect to any other applicable payments under any Loan
Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S.
Federal withholding Tax pursuant to the “business profits” or “other income” article
of such tax treaty;




     (C) in the case of a Non-U.S. Lender for whom payments under any Loan Document
constitute income that is effectively connected with such Lender’s conduct of a
trade or business in the United States, IRS Form W-8ECI;




     (D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2)
a certificate substantially in the form of Exhibit G (a “U.S. Tax
Certificate”) to the effect that such Lender is not (a) a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code, (c) a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code and (d) conducting a
trade or business in the United States with which the relevant interest payments are
effectively connected;




     (E) in the case of a Non-U.S. Lender that is not the beneficial owner of
payments made under this Agreement (including a partnership or a participating
Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms
prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) that
would be required of each such beneficial owner or partner of such partnership if
such beneficial owner or partner were a Lender; provided, however, that if the
Lender is a partnership and one or more of its partners are claiming the exemption
for portfolio interest under Section 881(c) of the Code, such Lender may provide a
U.S. Tax Certificate on behalf of such partners; or




     (F) any other form prescribed by law as a basis for claiming exemption from, or
a reduction of, U.S. Federal withholding Tax together with such supplementary
documentation necessary to enable the Borrower or the Administrative Agent to
determine the amount of Tax (if any) required by law to be withheld.




     (iii) If a payment made to a Lender under any Loan Document would be subject to U.S.
Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at
the time or times prescribed by law and at such time or times
reasonably requested by
the
Withholding Agent, such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by



33









 






the Withholding Agent as may be necessary for the Withholding Agent to comply
with its obligations under FATCA, to determine that such Lender has or has not complied with
such Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct
and withhold from such payment. Solely for purposes of this Section 2.17(f)(iii), “FATCA”
shall include any amendments made to FATCA after the date of this Agreement.


          (g) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.17 (including additional amounts paid pursuant to this
Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to
the extent of indemnity payments made under this Section with respect to the Taxes giving rise to
such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay
to such indemnified party the amount paid to such indemnified party pursuant to the previous
sentence (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event such indemnified party is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this Section 2.17(g), in no
event will any indemnified party be required to pay any amount to any indemnifying party pursuant
to this Section 2.17(g) if such payment would place such indemnified party in a less favorable
position (on a net after-Tax basis) than such indemnified party would have been in if the
indemnification payments or additional amounts giving rise to such refund had never been paid. This
Section 2.17(g) shall not be construed to require any indemnified party to make available its Tax
returns (or any other information relating to its Taxes which it deems confidential) to the
indemnifying party or any other Person.


          (h) Issuing Bank. For purposes of Section 2.17(e) and (f), the term “Lender” includes
the Issuing Bank.


          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.


          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to 1:00 p.m., New York City time on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 10 South Dearborn Street,
7th Floor, Chicago, Illinois 60603, except payments to be made directly to the Issuing
Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections
2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. 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, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
Dollars.


          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC




34









 








Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.



          (c) At the election of the Administrative Agent, all payments of principal, interest, LC
Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all
reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the
Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a
request by the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section or
may be deducted from any deposit account of the Borrower maintained with the Administrative Agent.


          (d) If any Lender shall, by exercising any right of set-off or counterclaim 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 receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders 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 principal of and accrued
interest on their respective Revolving Loans and participations in LC Disbursements and Swingline
Loans; 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 the Borrower 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 and Swingline Loans to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The 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 the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of the Borrower in
the amount of such participation.


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


          (f) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter
received by the Administrative Agent for the account of such Lender and for the benefit of the
Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lender’s obligations
to it under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any
such amounts in a segregated




35












 





account as cash collateral for, and application to, any future funding
obligations of such Lender under any such Section; in the case of each of clauses (i) and (ii)
above, in any order as determined by the Administrative Agent in its discretion.



          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.


          (b) If (i) any Lender requests compensation under Section 2.15, (ii) the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.17 or (iii) any Lender becomes a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and obligations under the Loan
Documents to an 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 received
the prior written consent of the Administrative Agent (and if a Commitment is being assigned, the
Issuing Bank), which consent shall not unreasonably be withheld, (ii) 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, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, 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) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.15 or payments required to
be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation
or payments. 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 cease to apply.


          SECTION 2.20. Expansion Option. The Borrower may from time to time, but not more than
five (5) times during the term of this Agreement, elect to increase the Commitments or enter into
one or more tranches of term loans (each an “Incremental Term Loan”), in each case in a
minimum amount of $5,000,000 and an integral multiple of $1,000,000 in excess thereof so long as,
after giving effect thereto, the aggregate amount of such increases and all such Incremental Term
Loans does not exceed $55,000,000. The Borrower may arrange for any such increase or tranche to be
provided by one or more Lenders (each Lender so agreeing to an increase in its Commitment, or to
participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new
banks, financial institutions or other entities (each such new bank, financial institution or other
entity, an “Augmenting Lender”), to increase their existing Commitments, or to participate
in such Incremental Term Loans, or extend Commitments, as the case may be; provided that
(i) each Augmenting Lender, shall be subject to the
approval of the Borrower and the Administrative Agent, which approvals shall not be
unreasonably withheld and (ii) (x) in the case of an Increasing Lender, the Borrower and such
Increasing Lender execute an agreement substantially in the form of Exhibit C hereto, and
(y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an
agreement substantially in the form of Exhibit D hereto. No consent of any Lender (other
than the Lenders participating in the increase or any Incremental Term Loan) shall be required for
any increase in Commitments or Incremental Term Loan 


36









 







pursuant to this Section 2.20. Increases and
new Commitments and Incremental Term Loans created pursuant to this Section 2.20 shall become
effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing
Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof.
Notwithstanding the foregoing, no increase in the Commitments (or in the Commitment of any Lender)
or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the
proposed date of the effectiveness of such increase or Incremental Term Loans, (A) the conditions
set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required
Lenders and the Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Borrower and (B) the Borrower shall be in
compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the
covenants contained in Section 6.11 and (ii) the Administrative Agent shall have received documents
consistent with those delivered on the Effective Date as to the corporate power and authority of
the Borrower to borrow hereunder after giving effect to such increase. On the effective date of
any increase in the Commitments or any Incremental Term Loans being made, (i) each relevant
Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such
amounts in immediately available funds as the Administrative Agent shall determine, for the benefit
of the other Lenders, as being required in order to cause, after giving effect to such increase and
the use of such amounts to make payments to such other Lenders, each Lender’s portion of the
outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such
outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, the
Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the
date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving
Loans, with related Interest Periods if applicable, specified in a notice delivered by the
Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant
to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued
interest on the amount prepaid and, in respect of each Eurodollar Loan, shall be subject to
indemnification by the Borrower pursuant to the provisions of Section 2.16 if the deemed payment
occurs other than on the last day of the related Interest Periods. The Incremental Term Loans (a)
shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier
than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated
substantially the same as (and in any event no more favorably than) the Revolving Loans; provided
that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing
after the Maturity Date may provide for material additional or different financial or other
covenants or prepayment requirements applicable only during periods after the Maturity Date and
(ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental
Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term
Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by
the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender
participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan
Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the
Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this
Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender
to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.



          SECTION 2.21. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:


          (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.12(a);



37









 







          (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 9.02);
provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification requiring the consent of such Lender or each
Lender affected thereby;


          (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes 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 their respective
Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’
Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure
does not exceed the total of all non-Defaulting Lenders’ Commitments;




     (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one (1) Business Day following notice by the
Administrative Agent (x) first, prepay such Swingline Exposure and (y)
second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to
any partial reallocation pursuant to clause (i) above) in accordance with the procedures set
forth in Section 2.06(j) for so long as such LC Exposure is outstanding;




     (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees
to such Defaulting Lender pursuant to Section 2.12(b) 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
(i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and Section
2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable
Percentages; and




     (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (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 2.12(b) with respect to such Defaulting Lender’s
LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and


          (d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required
to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase
any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s
then outstanding LC Exposure 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 2.21(c),
and participating interests in any such 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 2.21(c)(i) (and such Defaulting Lender shall not participate therein).



38









 







          If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the
Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Swingline
Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank,
as the case may be, shall have entered into arrangements with the Borrower or such Lender,
satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk
to it in respect of such Lender hereunder.


          In the event that the Administrative Agent, the Borrower, the Swingline Lender and the Issuing
Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender
shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Applicable Percentage.



ARTICLE III




Representations and Warranties


          The Borrower represents and warrants to the Lenders that:


          SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing or active status under the
laws of the jurisdiction of its organization, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction where such qualification is required.
Schedule 3.01 hereto (as supplemented from time to time) identifies each Subsidiary, noting
whether such Subsidiary is a Material Domestic Subsidiary, the jurisdiction of its incorporation or
organization, as the case may be, the percentage of issued and outstanding shares of each class of
its capital stock or other equity interests owned by the Borrower and the other Subsidiaries and,
if such percentage is not 100% (excluding directors’ qualifying shares as required by law), a
description of each class issued and outstanding. All of the outstanding shares of capital stock
and other equity interests of each Subsidiary are validly issued and outstanding and fully paid and
nonassessable and all such shares and other equity interests indicated on Schedule 3.01 as
owned by the Borrower or another Subsidiary are owned, beneficially and of record, by the Borrower
or any Subsidiary free and clear of all Liens. There are no outstanding commitments or other
obligations of the Borrower or any Subsidiary to issue, and no options, warrants or other rights of
any Person to acquire, any shares of any class of capital stock or other equity interests of the
Borrower or any Subsidiary, except for compensatory stock options.


          SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan
Party’s organizational powers and have been duly authorized by all necessary organizational actions
and, if required, actions by equity holders. The Loan Documents to which each Loan Party is a
party
have been duly executed and delivered by such Loan Party and constitute a legal, valid and
binding obligation of such Loan Party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



39









 







          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, material
agreement or other material instrument binding upon the Borrower or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any
of its Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset
of the Borrower or any of its Subsidiaries.


          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended January 29, 2011
reported on by Ernst & Young LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended April 30, 2011, certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (ii)
above.


          (b) Since January 29, 2011, there has been no material adverse change in the business, assets,
operations or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a
whole.


          SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes.


          (b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and, to
the Borrower’s knowledge, the use thereof by the Borrower and its Subsidiaries does not infringe
upon the rights of any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.


          SECTION 3.06. Litigation, Environmental and Labor Matters. (a) There are no actions,
suits, proceedings or investigations by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination
and that, if adversely determined, could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.


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


          (c) There are no strikes, lockouts or slowdowns against the Borrower or any of its
Subsidiaries pending or, to their knowledge, threatened. To the Borrower’s knowledge, the hours
worked 


40









 







by and payments made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign
law relating to such matters. To the Borrower’s knowledge, all material payments due from the
Borrower or any of its Subsidiaries, or for which any claim may be made against the Borrower or any
of its Subsidiaries, on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as liabilities on the books of the Borrower or such Subsidiary.
The consummation of the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement under which the
Borrower or any of its Subsidiaries is bound.



          SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.


          SECTION 3.08. Investment Company Status. Neither the Borrower nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.


          SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.


          SECTION 3.10. ERISA. 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
expected to occur, could reasonably be expected to result in a Material Adverse Effect.


          SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished by or on behalf of
the Borrower or any Subsidiary to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; 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. For the purpose of this Section 3.11, all
information filed by the Borrower with the SEC shall be deemed to have been delivered and disclosed
to the Lenders.


          SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have
been used or will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.


          SECTION 3.13. Liens. There are no Liens on any of the real or personal properties of
the Borrower or any Subsidiary except for Liens permitted by Section 6.02.



41









 







          SECTION 3.14. No Default. No Default or Event of Default has occurred and is
continuing.



ARTICLE IV




Conditions


          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank 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 9.02):


          (a) The Administrative Agent (or its counsel) shall have received from (i) each party hereto
either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence
satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of
a signed signature page of this Agreement) that such party has signed a counterpart of this
Agreement and (ii) duly executed copies of the Loan Documents and such other legal opinions,
certificates, documents, instruments and agreements as the Administrative Agent shall reasonably
request in connection with the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel and as further described in the list of closing documents
attached as Exhibit E.


          (b) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Trenam, Kemker, Scharf,
Barkin, Frye, O’Neill & Mullis, PA, counsel for the Loan Parties, substantially in the form of
Exhibit B, and covering such other matters relating to the Loan Parties, the Loan Documents
or the Transactions as the Administrative Agent shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinion.


          (c) The Lenders shall have received (i) reasonably satisfactory audited consolidated financial
statements of the Borrower for the two most recent fiscal years ended prior to the Effective Date
as to which such financial statements are available, (ii) reasonably satisfactory unaudited interim
consolidated financial statements of the Borrower for each quarterly period ended subsequent to the
date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to
which such financial statements are publicly available and (iii) reasonably satisfactory financial
statement annual projections through and including the Borrower’s 2016 fiscal year.


          (d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence,
good standing and/or active status of the initial Loan Parties, the authorization of the
Transactions and any other legal matters relating to such Loan Parties, the Loan Documents or the
Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its
counsel and as further described in the list of closing documents attached as Exhibit E.


          (e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.


          (f) The Administrative Agent shall have received evidence reasonably satisfactory to it that
any credit facility currently in effect for the Borrower shall have been terminated and cancelled
and all indebtedness thereunder shall have been fully repaid (except to the extent being so repaid
with the initial Revolving Loans) and any and all liens thereunder shall have been terminated.



42









 







          (g) The Administrative Agent shall have received evidence reasonably satisfactory to it that
all governmental and third party approvals reasonably necessary or advisable in connection with the
Transactions have been obtained and are in full force and effect.


          (h) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.



          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:


          (a) The representations and warranties of the Borrower set forth in this Agreement shall be
true and correct in all material respects (or, if qualified by materiality or Material Adverse
Effect, in all respects) on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.


          (b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall have occurred and be continuing.



Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants


          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:


          SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent and each Lender:


          (a) within ninety (90) days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and cash
flows as of the end of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Ernst & Young LLP or other independent
public accountants of recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied;



43









 







          (b) within forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower, its consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the Borrower
and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes;


          (c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.11 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;


          (d) as soon as available, but in any event not more than sixty (60) days after the end of each
fiscal year of the Borrower, a copy of the plan and forecast (including a projected consolidated
and consolidating balance sheet, income statement and funds flow statement) of the Borrower for the
upcoming fiscal year in form reasonably satisfactory to the Administrative Agent;


          (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC,
or any Governmental Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its shareholders generally, as
the case may be; and


          (f) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.


          (g) Documents required to be delivered pursuant to clauses (a) and (b) and (e) of this Section
5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on
the date on which such documents are filed for public availability on the SEC’s Electronic Data
Gathering and Retrieval System.


          SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:


          (a) the occurrence of any Default;


          (b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material Adverse Effect;


          (c) 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 a Material Adverse Effect; and



44









 







          (d) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.



Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.



          SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, qualifications, licenses, permits,
privileges, franchises, governmental authorizations and intellectual property rights material to
the conduct of its business, and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.


          SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in
a Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.


          SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.


          SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made, in all material respects, of all dealings and transactions in relation to
its business and activities. The Borrower will, and will cause each of its Subsidiaries to, permit
any representatives designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested. The Borrower
acknowledges that the Administrative Agent, after exercising its rights of inspection, may prepare
and distribute to the Lenders certain reports pertaining to the Borrower and its Subsidiaries’
assets for internal use by the Administrative Agent and the Lenders.


          SECTION 5.07. Compliance with Laws and Material Contractual Obligations. The
Borrower will, and will cause each of its Subsidiaries to, (i) comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its property (including
without limitation Environmental Laws) and (ii) perform in all material respects its obligations
under material agreements to which it is a party, in each case except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


          SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only to finance
the working capital needs, and for general corporate purposes (including Permitted Acquisitions),
of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used, whether
directly 


45









 







or indirectly, for any purpose that entails a violation of any of the Regulations of the
Board, including Regulations T, U and X.



          SECTION 5.09. Subsidiary Guaranty. As promptly as possible but in any event within
thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any
Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the
Borrower or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of
“Material Domestic Subsidiary”, the Borrower shall provide the Administrative Agent with written
notice thereof setting forth information in reasonable detail describing the material assets of
such Person and shall cause each such Subsidiary which also qualifies as a Material Domestic
Subsidiary to deliver to the Administrative Agent a joinder to the Subsidiary Guaranty (in the form
contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and
provisions thereof, such Subsidiary Guaranty to be accompanied by appropriate corporate
resolutions, other corporate documentation and legal opinions in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.



ARTICLE VI




Negative Covenants


          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:


          SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:


          (a) the Obligations;


          (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type
that does not increase the outstanding principal amount thereof;


          (c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or
any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party
to any Loan Party shall be subject to the limitations set forth in Section 6.04(d);


          (d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary;


          (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including real property, Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or within ninety (90)
days after such acquisition or the completion of such construction or improvement and (ii) the
aggregate outstanding principal amount of Indebtedness permitted by this clause (e) shall not
exceed $100,000,000 at any time outstanding;


          (f) Indebtedness of the Borrower or any Subsidiary as an account party in respect of trade
letters of credit;



46









 







          (g) Indebtedness owed to any Person providing workers’ compensation, health, disability or
other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred in the ordinary course of
business;


          (h) Indebtedness of any Borrower or any Subsidiary in respect of performance bonds, bid bonds,
appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of
business;


          (i) other Indebtedness of the Borrower or any Subsidiary secured by a Lien on any asset of the
Borrower or any Subsidiary; provided that the aggregate outstanding principal amount of
Indebtedness permitted by this clause (i) shall not in the aggregate exceed $10,000,000 at any
time; and


          (j) unsecured Indebtedness in an aggregate principal amount not exceeding $100,000,000 at any
time outstanding; provided that the aggregate principal amount of Indebtedness of the
Borrower’s Subsidiaries that are not Subsidiary Guarantors permitted by this clause (j) shall not
exceed $20,000,000 at any time outstanding.


          SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:


          (a) Permitted Encumbrances;


          (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date
hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not apply
to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;


          (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;


          (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) such security interests secure Indebtedness permitted by
clause (e) of Section 6.01, (ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within ninety (90) days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and (iv) such security interests
shall not apply to any other property or assets of the Borrower or any Subsidiary;


          (e) Liens (i) of a collecting bank arising in the ordinary course of business under Section
4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items
being collected upon or (ii) in favor of a banking institution arising as a matter of law,
encumbering



47









 








amounts credited to deposit or securities accounts (including the right of set-off) and
which are within the general parameters customary in the banking industry;



          (f) Liens granted by a Subsidiary that is not a Loan Party in favor of any Borrower or another
Loan Party in respect of Indebtedness owed by such Subsidiary;


          (g) Liens arising from precautionary UCC financing statements, including in respect of any
operating lease or disposition permitted by this Agreement;


          (h) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of setoff or similar rights and remedies, in each case as to deposit
accounts or other funds maintained with a creditor depositary institution; and


          (i) Liens on assets of the Borrower and its Subsidiaries not otherwise permitted above so long
as the aggregate principal amount of the Indebtedness and other obligations subject to such Liens
does not at any time exceed $10,000,000.


          SECTION 6.03. Fundamental Changes and Asset Sales. (a) The Borrower will not, and
will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) any of its assets (including pursuant to a Sale
and Leaseback Transaction), or any of the Equity Interests of any of its Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Event of Default shall have occurred
and be continuing:




     (i) any Person may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation;




     (ii) any Subsidiary may merge into a Loan Party in a transaction in which the surviving
entity is such Loan Party(provided that any such merger involving the Borrower must result
in the Borrower as the surviving entity);




     (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to a
Loan Party;




     (iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of
business, (B) effect sales, trade-ins or dispositions of used equipment for value in the
ordinary course of business consistent with past practice, (C) enter into licenses of
intellectual property and (D) make any other sales, transfers, leases or dispositions that,
together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as
permitted by this clause (D) during any fiscal year of the Borrower, does not exceed
$40,000,000;




     (v) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best interests of
the Borrower and is not materially disadvantageous to the Lenders;




     (vi) the original Borrower may consummate a Holding Company Reorganization so long as
after giving effect thereto, (A) no Default shall have occurred and be continuing, (B) the
Holding Company shall have assumed, pursuant to an instrument in form and substance
reasonably satisfactory to the Administrative Agent, the obligations of the original
Borrower under this Agreement and the other Loan Documents to which the original Borrower is
a party,



48









 






(C) any holding company created pursuant to such Holding Company Reorganization
shall be a corporation organized under the laws of a State in the United States, shall
expressly assume all obligations of the original Borrower under this Agreement and the other
Loan Documents pursuant to supplements hereto and thereto or other documents or instruments,
in each case in form and substance reasonably satisfactory to the Administrative Agent, and
shall take all actions as may be required to preserve the enforceability of the Loan
Documents, (D) any Person into which the original Borrower may be merged shall be a
corporation organized under the laws of a State in the United States and shall become a
Subsidiary Guarantor and shall execute and deliver a Subsidiary Guaranty or if the original
Borrower is the surviving corporation in such merger, the original Borrower shall become a
Subsidiary Guarantor and shall execute and deliver a Subsidiary Guaranty, (D) each
Subsidiary Guarantor shall have confirmed that its Subsidiary Guaranty shall apply to the
Obligations of any holding company created pursuant to such Holding Company Reorganization,
(E) the Administrative Agent shall have received such officers’ certificates and opinions of
counsel as it may reasonably request in connection with such transaction and (F) the revised
organizational structure of the Holding Company, the original Borrower and the Subsidiaries
shall be reasonably satisfactory to the Administrative Agent; and




     (vii) the Borrower or any Subsidiary may sell, transfer, lease or otherwise dispose of
all or any portion of its real property located on Alico Road, Florida.


          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related or
complementary thereto.


          (c) The Borrower will not, nor will it permit any of its Subsidiaries to, change its fiscal
year from the basis in effect on the Effective Date.


          SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower
will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary
prior to such merger or consolidation) any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the foregoing) of, make
or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to
exist any investment or any other interest in, any other Person, or purchase or otherwise acquire
(in one transaction or a series of transactions) any Person or any assets of any other Person
constituting a business unit, except:


          (a) Permitted Investments;


          (b) Permitted Acquisitions;


          (c) investments by the Borrower and its Subsidiaries existing on the date hereof in the
capital stock of its Subsidiaries;


          (d) investments, loans or advances made by the Borrower in or to any Subsidiary and made by
any Subsidiary in or to the Borrower or any other Subsidiary (provided that not more than an
aggregate amount of $50,000,000 in investments, loans or advances or capital contributions may be
made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan
Parties);


          (e) Guarantees constituting Indebtedness permitted by Section 6.01;



49









 







          (f) investments by the Borrower and its Subsidiaries in existence on the Effective Date and
described on Schedule 6.04;


          (g) loans or advances by the Borrower and the Subsidiaries to their employees in the ordinary
course of business consistent with past practices for travel and entertainment expenses, relocation
costs and similar purposes up to a maximum of $5,000,000 in the aggregate at any one time
outstanding;


          (h) investments in the form of Swap Agreements permitted by Section 6.05;


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


          (j) investments received in connection with the dispositions of assets permitted by Section
6.03;


          (k) investments constituting deposits described in paragraphs (c) and (d) of the definition of
the term “Permitted Encumbrances”;


          (l) Guarantees by the Borrower or any of the Subsidiaries of leases (other than Capital Lease
Obligations) or of other obligations of the Borrower or any of its Subsidiaries that do not
constitute Indebtedness; and


          (m) any other investment, loan or advance (other than acquisitions) so long as the aggregate
amount of all such investments, loans and advances does not exceed the greater of (i) $75,000,000
and (ii) five percent (5%) of Consolidated Total Assets (as of the most recently completed fiscal
quarter of the Borrower) during the term of this Agreement.


          SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.


          SECTION 6.06. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among
the Borrower and its wholly owned Subsidiaries not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.07.


          SECTION 6.07. Restricted Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make
Restricted Payments pursuant to




50












 




and in accordance with stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make
any other Restricted Payment so long as (i) no Default or Event of Default has occurred and is
continuing prior to making such Restricted Payment or would arise after giving effect (including
giving effect on a Pro Forma Basis) thereto and (ii) if the Leverage Ratio is, or would be after
giving effect (including pro forma effect) to such Restricted Payment, greater than 2.75 to 1.00,
such Restricted Payment does not exceed the Permitted RP Amount (it being understood and agreed
that if the Leverage Ratio is less than or equal to 2.75 to 1.00, such Restricted Payment made
pursuant to this clause (d) shall not be subject to a dollar limitation).




          SECTION 6.08. Restrictive Agreements. The Borrower will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to holders of its Equity Interests or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by any Loan Document, (ii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iii) the foregoing shall not apply to restrictions or conditions set forth in
any agreement governing Indebtedness permitted by Section 6.01; provided that such
restrictions and conditions are customary for such Indebtedness and are no more restrictive, taken
as a whole, than the comparable restrictions and conditions set forth in this Agreement, unless the
same are required under the then prevailing market conditions for such Indebtedness as reasonably
determined by the Administrative Agent, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by
this Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.




          SECTION 6.09. Subordinated Indebtedness and Amendments to Subordinated Indebtedness
Documents. The Borrower will not, and will not permit any Subsidiary to, directly or
indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or
otherwise acquire, any Subordinated Indebtedness or any Indebtedness from time to time outstanding
under the Subordinated Indebtedness Documents. Furthermore, the Borrower will not, and will not
permit any Subsidiary to, amend the Subordinated Indebtedness Documents or any document, agreement
or instrument evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness
Documents (or any replacements, substitutions, extensions or renewals thereof) or pursuant to which
such Indebtedness is issued where such amendment, modification or supplement amends, modifies or
adds any provision thereof in a manner which (i) when taken as a whole, is materially adverse to
the Borrower, any Subsidiary and/or the Lenders or (ii) is more onerous than the existing
applicable provision in the Subordinated Indebtedness Documents or the applicable provision in this
Agreement, unless the same are required under the then prevailing market conditions for such
Indebtedness as reasonably determined by the Administrative Agent.




          SECTION 6.10. Sale and Leaseback Transactions. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into any Sale and Leaseback Transaction, provided that, so
long as no Default or Event of Default has occurred and is continuing prior to entering into any
Sale and Leaseback Transaction or would arise after giving effect (including giving effect on a Pro
Forma Basis) thereto, the Borrower and its Subsidiaries may enter into Sale and Leaseback Transactions in respect of
which the net





51









 







cash proceeds received in connection therewith does not exceed $100,000,000 in the
aggregate during any fiscal year of the Borrower, determined on a consolidated basis for the
Borrower and its Subsidiaries.




          SECTION 6.11. Financial Covenants.




          (a) Maximum Leverage Ratio. The Borrower will not permit the ratio (the
“Leverage Ratio”), determined as of the end of each of its fiscal quarters ending after the
Effective Date, of (i) Consolidated Funded Indebtedness plus the product of (x) six (6)
multiplied by (y) Consolidated Rental Expense for the period of four (4) consecutive fiscal
quarters ending with the end of such fiscal quarter to (ii) Consolidated EBITDAR for the period of
four (4) consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for
the Borrower and its Subsidiaries on a consolidated basis, to be greater than 3.25 to 1.00.



          (b) Minimum Fixed Charge Coverage Ratio. The Borrower will not permit the ratio (the
“Fixed Charge Coverage Ratio”), determined as of the end of each of its fiscal quarters
ending after the Effective Date, of (i) Consolidated EBITDAR minus Consolidated Capital
Expenditures minus expense for taxes paid in cash to (ii) scheduled principal payments in
respect of Indebtedness plus Consolidated Rental Expense plus Consolidated Interest
Expense, in each case for the period of four (4) consecutive fiscal quarters ending with the end of
such fiscal quarter, all calculated for the Borrower and its Subsidiaries on a consolidated basis,
to be less than 1.20 to 1.00.



ARTICLE VII




Events of Default



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



          (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation
in respect of any LC Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;



          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement or
any other Loan Document, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five (5) days;



          (c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this Agreement or
any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove
to have been incorrect in any material respect when made or deemed made;



          (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in
Article VI;



          (e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform
any covenant, condition or agreement contained in this Agreement (other than those specified in
clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue



52









 




unremedied for a period of thirty (30) days after written notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request of any Lender);




          (f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable within the applicable grace period;



          (g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits, after the expiration of any applicable grace
period provided in the applicable agreement or instrument under which such Indebtedness was
created, the holder or holders of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;



          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for sixty (60) days or an order or decree
approving or ordering any of the foregoing shall be entered;



          (i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;



          (j) one or more judgments for the payment of money in an aggregate amount in excess of
$20,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of forty-five (45) consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;



          (k) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;



          (l) a Change in Control shall occur; provided that if a Holding Company Reorganization
is consummated in compliance with Section 6.03, (i) neither the Holding Company Reorganization nor
any of the transactions giving rise to the Holding Company Reorganization shall give rise to a
Default pursuant to this clause (l) and (ii) the definition of Change in Control shall apply as if
the Borrower prior thereto and the Borrower subsequent thereto were the same Person;



53









 





          (m) the occurrence of any “default”, as defined in any Loan Document (other than this
Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this
Agreement), which default or breach continues beyond any period of grace therein provided or for 30
days after written notice of such failure given to the Borrower by the Administrative Agent; or



          (n) any material provision of any Loan Document for any reason ceases to be valid, binding and
enforceable in accordance with its terms (or the Borrower or any Subsidiary shall challenge the
enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction
based on any such assertion, that any provision of any of the Loan Documents has ceased to be or
otherwise is not valid, binding and enforceable in accordance with its terms);


then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other Obligations of the Borrower accrued hereunder and under the
other Loan Documents, shall become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of
any event with respect to the Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other Obligations accrued hereunder and under the
other Loan Documents, shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the
occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at
the request of the Required Lenders shall, exercise any rights and remedies provided to the
Administrative Agent under the Loan Documents or at law or equity.




ARTICLE VIII




The Administrative Agent



          Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf, including
execution of the other Loan Documents, and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such actions and powers as
are reasonably incidental thereto.



          The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.



          The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly



54









 




contemplated by the Loan Documents that the Administrative Agent is required to exercise in
writing as directed by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not 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
Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or in connection
with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.




          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



          The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. 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 sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.



          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the approval of the Borrower (such approval not to be unreasonably withheld or
delayed), to appoint a successor; provided, however, if an Event of Default shall exist at
such time, no approval of the Borrower shall be required hereunder. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a
successor Administrative Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor



55









 




unless otherwise agreed between the Borrower and such successor. After the Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender 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.



          None of the Lenders, if any, identified in this Agreement as a Syndication Agent shall have
any right, power, obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders
shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes
the same acknowledgments with respect to the relevant Lenders in their respective capacities as
Syndication Agent as it makes with respect to the Administrative Agent in the preceding paragraph.



          The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right
on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after
the date such principal or interest has become due and payable pursuant to the terms of this
Agreement.



ARTICLE IX




Miscellaneous



          SECTION 9.01. 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 herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:




     (i) if to the Borrower, to it at Chico’s FAS, Inc., 11215 Metro Parkway, Fort Myers,
Florida 33966, Attention of A. Alexander Rhodes (Telecopy No. (239) 346-5429; Telephone No.
(239) 274-4620), with a copy (in the case of a notice of Default) to Gary Teblum, Esq.,
Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, P.A., 101 E. Kennedy Boulevard,
Suite 2700, Tampa, Florida 33602 (Telecopy No. (813) 229-6553);




     (ii) if to the Administrative Agent, the Issuing Bank or the Swingline Lender, to
JPMorgan Chase Bank, N.A., Loan and Agency Services, 10 South Dearborn, Chicago, Illinois
60603, Attention of Darren Cunningham (Telecopy No. (888) 292-9533), with a copy to JPMorgan
Chase Bank, N.A., 712 Main Street, 8th Floor North, Houston, Texas 77002,
Attention of Debra Harris (Telecopy No. (713) 216-6710); and




     (iii) if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.



56









 





          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.



          (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.



          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, 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, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time.



          (b) Except as provided in Section 2.20 with respect to an Incremental Term Loan Amendment,
neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender directly affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender directly affected
thereby, (iv) change Section 2.18(b) or (d) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written consent of
each Lender (it being understood that, solely with the consent of the parties prescribed by Section
2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in
the determination of Required Lenders on substantially the same basis as the Commitments and the
Revolving Loans are included on the Effective Date) or (vi) release all or substantially all of the
Subsidiary Guarantors from their obligations under the Subsidiary Guaranty, without the written
consent of each Lender; provided further that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the
Swingline Lender hereunder without



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the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be.




          (c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended
(or amended and restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower to each relevant Loan Document (x) to add one or more credit facilities (in
addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this
Agreement and to permit extensions of credit from time to time outstanding thereunder and the
accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Revolving Loans, Incremental Term Loans and the accrued interest
and fees in respect thereof and (y) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders and Lenders.



          (d) If, in connection with any proposed amendment, waiver or consent requiring the consent of
“each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is
obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent
is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then
the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement,
provided that, concurrently with such replacement, (i) another bank or other entity which is
reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date,
to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to
an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to
assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply
with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such
Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and
other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to
and including the date of termination, including without limitation payments due to such
Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment
which would have been due to such Lender on the day of such replacement under Section 2.16 had the
Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement
Lender.



          (e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the
consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan
Documents to cure any ambiguity, omission, mistake, defect or inconsistency.



          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication and distribution (including, without limitation, via the
internet or through a service such as Intralinks) of the credit facilities provided for herein, the
preparation and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) (provided, that, unless the
Administrative Agent has received the Borrower’s prior written approval, the Borrower’s obligation
to reimburse for all out-of-pocket expenses incurred by the Administrative Agent and the Lead
Arrangers prior to the Effective Date (excluding fees, charges, and disbursements of counsel, and
charges associated with Intralinks) shall not exceed $2,000), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection



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with this Agreement and any other Loan Document, including
its rights under this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties hereto of their
respective obligations thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the 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) 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, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any of its Subsidiaries, and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses 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 Indemnitee. This Section 9.03(b) shall not apply with
respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax
claim.



          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount
(it being understood that the Borrower’s failure to pay any such amount shall not relieve the
Borrower of any default in the payment thereof); provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline Lender in its
capacity as such.



          (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee (i) for any damages arising from the use by others of
information or other materials obtained through telecommunications, electronic or other information
transmission systems (including the Internet), except as determined by a court of competent
jurisdiction in a final and nonappealable judgment to have resulted form the gross negligence or
willful misconduct of such Indemnitee, or (ii) 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 or thereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.



          (e) All amounts due under this Section shall be payable not later than thirty (30) days after
written demand therefor.



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          SECTION 9.04. 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 the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder, other than in the context of, and strict adherence with the conditions of, a
Holding Company Reorganization, without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower 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. 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 the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and
the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.



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




     (A) the Borrower (provided that the Borrower shall be deemed to have consented
to any such assignment unless it shall object thereto by written notice to the
Administrative Agent within ten (10) Business Days after having received notice
thereof); provided, further, that no consent of the Borrower shall be required for
an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default has occurred and is continuing, any other assignee;




     (B) the Administrative Agent; and




     (C) the Issuing Bank.




     (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 $5,000,000 unless each of 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,
provided that this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in respect
of one Class of Commitments or Loans;




     (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, such fee to be paid by either the assigning Lender
or the assignee Lender or shared between such Lenders; and



60









 






     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
affiliates and their Related Parties or their respective securities) will be made
available and who may receive such information in accordance with the assignee’s
compliance procedures and applicable laws, including Federal and state securities
laws.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:



          “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, 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 2.15, 2.16, 2.17 and 9.03).
Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 9.04 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
paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
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, and the Borrower, the Administrative Agent, the Issuing Bank
and the Lenders shall treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrower, the
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 referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and 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 2.05(c), 2.06(d) or (e),
2.07(b), 2.18(e) or 9.03(c), the Administrative Agent shall have
no obligation to accept such Assignment and Assumption and record the information
therein in the Register unless and until such payment shall have been made in full, together
with all accrued



61









 






interest thereon. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph.



          (c) Any Lender may, without the consent of the Borrower, the Administrative Agent, the Issuing
Bank or the Swingline Lender, sell participations to one or more banks or other entities (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 Borrower, the Administrative Agent, the 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 a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 (subject to the requirements and limitations therein, including the requirements under Section
2.17(f) (it being understood that the documentation required under Section 2.17(f) shall be
delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section; provided that such
Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an
assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater
payment under Sections 2.15 or 2.17, with respect to any participation, than its participating
Lender would have been entitled to receive, except to the extent such entitlement to receive a
greater payment results from a Change in Law that occurs after the Participant acquired the
applicable participation. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.18(d) as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it
enters the name and address of each Participant and the principal amounts (and stated interest) of
each Participant’s interest in the Loans or other obligations under this Agreement (the
“Participant Register”); provided that no Lender shall have any obligation to
disclose all or any portion of the Participant Register to any Person (including the identity of
any Participant or any information relating to a Participant’s interest in any Commitments, Loans,
Letters of Credit or its other obligations under any this Agreement) except to the extent that such
disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other
obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and
such Lender shall treat each person whose name is recorded in the Participant Register as the owner
of such participation for all purposes of this Agreement notwithstanding any notice to the
contrary.



          (d) Any Lender may 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 without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that 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.



          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered
to have been relied upon by the other parties hereto and shall survive the execution and delivery
of the Loan



62









 




Documents and the making of any Loans and issuance of any Letters of Credit, regardless
of any investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the 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, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless 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 other Loan
Document or any provision hereof or thereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on 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 constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by facsimile or other electronic imaging shall be effective as delivery of a manually executed
counterpart of this Agreement.



          SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.



          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, 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 and in whatever currency denominated) at any time
held and other obligations at any time owing by such Lender or Affiliate to or for the credit or
the account of the Borrower or any Subsidiary Guarantor against any of and all of the Obligations
held by such Lender, irrespective of whether or not such Lender shall have made any demand under
the Loan Documents and although such obligations may be unmatured. Each Lender (or its Affiliate)
exercising its right of setoff shall notify the applicable Loan Party of such exercise of such
right promptly after exercising such right. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which such Lender may
have.



          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a)This Agreement shall be construed in accordance with and governed by the law of the
State of New York.



          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan



63









 




Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against any Loan Party or its properties in the courts of any jurisdiction.




          (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.



          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.



          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.



          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates’ directors, officers, 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), (b) to the extent requested by any regulatory authority (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process (in
which case each such Person agrees to promptly notify the Borrower to the extent not prohibited by
law), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies
under this Agreement or any other Loan Document or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any



64









 




prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)
with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower, which is not known by any such Person to be under a duty of confidentiality with
respect to the Information. For the purposes of this Section, “Information” means all information
received from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.




     EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS
AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND 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 AND STATE SECURITIES LAWS.



     ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER,
THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS 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 AND STATE SECURITIES LAWS.



          SECTION 9.13. USA PATRIOT Act. 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)) (the “Act”) hereby notifies each Loan Party that
pursuant to the requirements of the Act, it is required to obtain, verify and record information
that identifies such Loan Party, which information includes the name and address of such Loan Party
and other information that will allow such Lender to identify such Loan Party in accordance with
the Act.



          SECTION 9.14. Releases of Subsidiary Guarantors.



          (a) A Subsidiary Guarantor shall automatically be released from its obligations under the
Subsidiary Guaranty upon the consummation of any transaction permitted by this Agreement as a
result of which such Subsidiary Guarantor ceases to be a Subsidiary; provided that, if so
required by this Agreement, the Required Lenders shall have consented to such transaction and the
terms of such consent shall not have provided otherwise. In connection with any termination or
release pursuant to this Section,



65









 




the Administrative Agent shall (and is hereby irrevocably
authorized by each Lender to) execute and deliver to any Loan Party, at such Loan Party’s expense,
all documents that such Loan Party shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section shall be without
recourse to or warranty by the Administrative Agent.




          (b) Further, the Administrative Agent may (and is hereby irrevocably authorized by each Lender
to), upon the request of the Borrower, release any Subsidiary Guarantor from its obligations under
the Subsidiary Guaranty if such Subsidiary Guarantor is no longer a Material Domestic Subsidiary.



          (c) At such time as the principal and interest on the Loans, all LC Disbursements, the fees,
expenses and other amounts payable under the Loan Documents and the other Obligations (other than
Obligations expressly stated to survive such payment and termination) shall have been paid in full,
the Commitments shall have been terminated and no Letters of Credit shall be outstanding, the
Subsidiary Guaranty and all obligations (other than those expressly stated to survive such
termination) of each Subsidiary Guarantor thereunder shall automatically terminate, all without
delivery of any instrument or performance of any act by any Person.



[Signature Pages Follow]





66












 





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



	 	 	 	 	 
	 	CHICO’S FAS, INC., as the Borrower

 	 
	 	By  	/s/ Pamela K. Knous
 	 
	 	 	Name:  	Pamela K. Knous 	 
	 	 	Title:  	Executive Vice President – Chief Financial Officer

and Chief Accounting Officer 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,
individually as a Lender, as the Swingline Lender, as the Issuing Bank and as

Administrative Agent

 	 
	 	By  	/s/ Antje B. Focke
 	 
	 	 	Name:  	Antje B. Focke 	 
	 	 	Title:  	Senior Underwriter 	 
	 






Signature Page to Credit Agreement

Chico’s FAS, Inc.






 









 










	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION,

individually as a Lender and as Syndication Agent

 	 
	 	By  	/s/ Grace Lee
 	 
	 	 	Name:  	Grace Lee 	 
	 	 	Title:  	Vice President, Corporate Banking 	 
	 



Signature Page to Credit Agreement

Chico’s FAS, Inc.







 













 









	 	 	 	 	 
	 	BANK OF AMERICA, N.A, as a Lender

 	 
	 	By  	/s/ Mary Cone
 	 
	 	 	Name:  	Mary Cone 	 
	 	 	Title:  	Senior Vice President 	 
	 


Signature Page to Credit Agreement

Chico’s FAS, Inc.






 











 










	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL

ASSOCIATION, as a Lender

 	 
	 	By  	/s/ Kay Reedy
 	 
	 	 	Name:  	Kay Reedy 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to Credit Agreement

Chico’s FAS, Inc.






 









 





SCHEDULE 2.01




COMMITMENTS



	 	 	 	 	 
	LENDER	 	COMMITMENT	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, N.A.
	 	$	25,000,000	 
	 
	 	 	 	 
	HSBC BANK USA, NATIONAL ASSOCIATION
	 	$	25,000,000	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A.
	 	$	10,000,000	 
	 
	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION
	 	$	10,000,000	 
	 
	 	 	 	 
	AGGREGATE COMMITMENT
	 	$	70,000,000	 






 









 






EXHIBIT A




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 amended, 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.

	 	Borrower(s):
	 	Chico’s FAS, Inc.                                                            
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	JPMorgan Chase Bank, N.A., as the
administrative agent under the
Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Credit Agreement dated as of
July 27, 2011 among Chico’s FAS,
Inc., the Lenders parties
thereto, JPMorgan Chase Bank,
N.A., as Administrative Agent,
and the other agents parties
thereto








 




			
	1	 	Select as applicable.




 









 










6. Assigned Interest:




	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	Amount of	 	Percentage Assigned
	Commitment/Loans for all	 	Commitment/	 	of
	Lenders	 	Loans Assigned	 	Commitment/Loans2
	$

	 	$	 	 	 	%
	$

	 	$	 	 	 	%
	$

	 	$	 	 	 	%





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



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




	 	 	 	 	 
	 	ASSIGNOR





[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE







[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


Consented to and Accepted:




JPMORGAN CHASE BANK, N.A., as

Administrative Agent and Issuing Bank




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Title: 	 


[Consented to:]3



CHICO’S FAS, INC.




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	2	 	Set forth, so at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	3	 	To be added only if the consent of the
Borrower is required by the terms of the Credit Agreement.




2









 










ANNEX I




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 Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
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 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Non-U.S.
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 the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




          2. Payments. From and after the Effective Date, 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 telecopy 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 law of the State of New York.






2









 








EXHIBIT B




[Attached]



 









 





EXHIBIT C




FORM OF INCREASING LENDER SUPPLEMENT



          INCREASING LENDER SUPPLEMENT, dated __________, 20___ (this “Supplement”), by and
among each of the signatories hereto, to the Credit Agreement, dated as of July 27, 2011 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Chico’s FAS, Inc. (the “Borrower”), the Lenders party thereto and
JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative
Agent”).




W I T N E S S E T H



          WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the Borrower has the right,
subject to the terms and conditions thereof, to effectuate from time to time an increase in the
Aggregate Commitment and/or one or more tranches of Incremental Term Loans under the Credit
Agreement by requesting one or more Lenders to increase the amount of its Commitment and/or to
participate in such a tranche;




          WHEREAS, the Borrower has given notice to the Administrative Agent of its intention to
[increase the Aggregate Commitment] [and] [enter into a tranche of Incremental Term Loans] pursuant
to such Section 2.20; and




          WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the undersigned Increasing
Lender now desires to [increase the amount of its Commitment] [and] [participate in a tranche of
Incremental Term Loans] under the Credit Agreement by executing and delivering to the Borrower and
the Administrative Agent this Supplement;




          NOW, THEREFORE, each of the parties hereto hereby agrees as follows:




          1. The undersigned Increasing Lender agrees, subject to the terms and conditions of the Credit
Agreement, that on the date of this Supplement it shall [have its Commitment increased by
$[__________], thereby making the aggregate amount of its total Commitments equal to $[__________]]
[and] [participate in a tranche of Incremental Term Loans with a commitment amount equal to
$[__________] with respect thereto].




          2. The Borrower hereby represents and warrants that no Default or Event of Default has
occurred and is continuing on and as of the date hereof.




          3. Terms defined in the Credit Agreement shall have their defined meanings when used herein.




          4. This Supplement shall be governed by, and construed in accordance with, the laws of the
State of New York.




          5. This Supplement 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 document.







 









 








          IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.




	 	 	 	 	 
	 	[INSERT NAME OF INCREASING LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Accepted and agreed to as of the date first written above:



CHICO’S FAS, INC.




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Acknowledged as of the date first written above:




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




2











 





EXHIBIT D




FORM OF AUGMENTING LENDER SUPPLEMENT



          AUGMENTING LENDER SUPPLEMENT, dated __________, 20___ (this “Supplement”), to the
Credit Agreement, dated as of July 27, 2011 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Chico’s FAS, Inc. (the
“Borrower”), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent (in such capacity, the “Administrative Agent”).




W I T N E S S E T H




          WHEREAS, the Credit Agreement provides in Section 2.20 thereof that any bank, financial
institution or other entity may [extend Commitments] [and] [participate in tranches of Incremental
Term Loans] under the Credit Agreement subject to the approval of the Borrower and the
Administrative Agent, by executing and delivering to the Borrower and the Administrative Agent a
supplement to the Credit Agreement in substantially the form of this Supplement; and




          WHEREAS, the undersigned Augmenting Lender was not an original party to the Credit Agreement
but now desires to become a party thereto;




          NOW, THEREFORE, each of the parties hereto hereby agrees as follows:




          1. The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit
Agreement and agrees that it shall, on the date of this Supplement, become a Lender for all
purposes of the Credit Agreement to the same extent as if originally a party thereto, with a
[Commitment with respect to Revolving Loans of $[__________]] [and] [a commitment with respect to
Incremental Term Loans of $[__________]].




          2. The undersigned Augmenting Lender (a) represents and warrants that it is legally authorized
to enter into this Supplement; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section
5.01 thereof, as applicable, and has reviewed such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into this Supplement;
(c) agrees that it will, independently and without reliance upon the 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 Credit Agreement
or any other instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such
powers and discretion under the Credit Agreement or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender.




          3. The undersigned’s address for notices for the purposes of the Credit Agreement is as
follows:




                    [___________]



          4. The Borrower hereby represents and warrants that no Default or Event of Default has
occurred and is continuing on and as of the date hereof.







 









 








          5. Terms defined in the Credit Agreement shall have their defined meanings when used herein.




          6. This Supplement shall be governed by, and construed in accordance with, the laws of the
State of New York.




          7. This Supplement 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 document.




[remainder of this page intentionally left blank]






2









 








          IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.




	 	 	 	 	 
	 	[INSERT NAME OF AUGMENTING LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	Accepted and agreed to as of the date first written above:



CHICO’S FAS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Acknowledged as of the date first written above:




	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



3









 






	 	 	 	 	 



EXHIBIT E




LIST OF CLOSING DOCUMENTS



CHICO’S FAS, INC.



CREDIT FACILITIES



July 27, 2011



LIST OF CLOSING DOCUMENTS1



A. LOAN DOCUMENTS




	1.	 	Credit Agreement (the “Credit Agreement”) by and among Chico’s FAS, Inc., a Florida
corporation (the “Borrower”), the institutions from time to time parties thereto as
Lenders (the “Lenders”) and JPMorgan Chase Bank, N.A., in its capacity as
Administrative Agent for itself and the other Lenders (the “Administrative Agent”),
evidencing a revolving credit facility to the Borrower from the Lenders in an initial
aggregate principal amount of $70,000,000.





SCHEDULES




	 	 	 	 	 	 	 

	 

	 	Schedule 2.01
	 	—
	 	Commitments
	 

	 	Schedule 3.01
	 	—
	 	Subsidiaries
	 

	 	Schedule 6.01
	 	—
	 	Existing Indebtedness
	 

	 	Schedule 6.02
	 	—
	 	Existing Liens
	 

	 	Schedule 6.04
	 	—
	 	Existing Investments






EXHIBITS




	 	 	 	 	 	 	 

	 

	 	Exhibit A
	 	—
	 	Form of Assignment and Assumption
	 

	 	Exhibit B
	 	—
	 	Form of Opinion of Loan Parties’ Counsel
	 

	 	Exhibit C
	 	—
	 	Form of Increasing Lender Supplement
	 

	 	Exhibit D
	 	—
	 	Form of Augmenting Lender Supplement
	 

	 	Exhibit E
	 	—
	 	List of Closing Documents
	 

	 	Exhibit F
	 	—
	 	Form of Subsidiary Guaranty
	 

	 	Exhibit G-1
	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Lenders That
Are Not Partnerships)
	 

	 	Exhibit G-2
	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Lenders That
Are Partnerships)
	 

	 	Exhibit G-3
	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Participants
That Are Not Partnerships)
	 

	 	Exhibit G-4
	 	—
	 	Form of U.S. Tax Certificate (Non-U.S. Participants
That Are Partnerships)







	2.	 	Notes executed by the Borrower in favor of each of the Lenders, if any, which has requested a
note pursuant to Section 2.10(e) of the Credit Agreement.







 




			
	1	 	Each capitalized term used herein and not
defined herein shall have the meaning assigned to such term in the
above-defined Credit Agreement. Items appearing in bold and italics shall be
prepared and/or provided by the Borrower and/or Borrower’s counsel.




 









 











	3.	 	Guaranty executed by the initial Subsidiary Guarantors (collectively with the Borrower, the
“Loan Parties”) in favor of the Administrative Agent





B. CORPORATE DOCUMENTS





	4.	 	Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) that
there have been no changes in the Articles of Incorporation or other charter document of such
Loan Party, as attached thereto and as certified as of a recent date by the Department of
State (or analogous governmental entity) of the jurisdiction of its organization, since the
date of the certification thereof by such governmental entity, (ii) the By-Laws or other
applicable organizational document, as attached thereto, of such Loan Party as in effect on
the date of such certification, (iii) resolutions of the Board of Directors or other governing
body of such Loan Party authorizing the execution, delivery and performance of each Loan
Document to which it is a party, and (iv) the names and true signatures of the incumbent
officers of each Loan Party authorized to sign the Loan Documents to which it is a party, and
(in the case of the Borrower) authorized to request a Borrowing or the issuance of a Letter of
Credit under the Credit Agreement.
	 
	5.	 	Active Status Certificate for each Loan Party from the Department of State of the
jurisdiction of its organization.





C. OPINIONS





	6.	 	Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, PA, counsel for the Loan
Parties.





D. CLOSING CERTIFICATES AND MISCELLANEOUS





	7.	 	A Certificate signed by the President, a Vice President or a Financial Officer of the
Borrower certifying the following: (i) all of the representations and warranties of the
Borrower set forth in the Credit Agreement are true and correct and (ii) no Default or Event
of Default has occurred and is then continuing.
	 
	8.	 	Payoff documentation providing evidence satisfactory to the Administrative Agent that the
Credit Agreement dated November 24, 2008 among the Borrower, the subsidiary guarantors party
thereto, the lenders party thereto and SunTrust Bank, as administrative agent, has been
terminated and cancelled (along with all of the agreements, documents and instruments
delivered in connection therewith) and all Indebtedness owing thereunder has been repaid and
any and all liens thereunder have been terminated.
	 
	9.	 	An affidavit by an Authorized Signatory of each Loan Party that the Loan Documents executed
by such Loan Party have been executed and delivered outside of the State of Florida or
evidence that all applicable stamp tax or other tax related to the Loan Documents have been
paid.




2









 











EXHIBIT F




FORM OF SUBSIDIARY GUARANTY



GUARANTY



          THIS GUARANTY (this “Guaranty”) is made as of July 27, 2011, by and among each of the
undersigned (the “Initial Guarantors” and along with any additional Subsidiaries of the
Borrower which become parties to this Guaranty by executing a supplement hereto in the form
attached as Annex I, the “Guarantors”) in favor of the Administrative Agent, for the
ratable benefit of the Holders of Guaranteed Obligations (as defined below), under the Credit
Agreement referred to below.




WITNESSETH




          WHEREAS, Chico’s FAS, Inc., a Florida corporation (the “Borrower”), the institutions
from time to time parties thereto as lenders (the “Lenders”), and JPMorgan Chase Bank,
N.A., in its capacity as administrative agent (the “Administrative Agent”), have entered
into a certain Credit Agreement dated as of July 27, 2011 (as the same may be amended, modified,
supplemented and/or restated, and as in effect from time to time, the “Credit Agreement”),
providing, subject to the terms and conditions thereof, for extensions of credit and other
financial accommodations to be made by the Lenders to the Borrower;




          WHEREAS, it is a condition precedent to the extensions of credit by the Lenders under the
Credit Agreement that each of the Guarantors (constituting all of the Subsidiaries of the Borrower
required to execute this Guaranty pursuant to Section 5.09 of the Credit Agreement) execute and
deliver this Guaranty, whereby each of the Guarantors shall guarantee the payment when due of all
Obligations; and




          WHEREAS, in consideration of the direct and indirect financial and other support that the
Borrower has provided, and such direct and indirect financial and other support as the Borrower may
in the future provide, to the Guarantors, and in order to induce the Lenders and the Administrative
Agent to enter into the Credit Agreement, each of the Guarantors is willing to guarantee the
Obligations of the Borrower;




          NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:




          SECTION 1. Definitions. Terms defined in the Credit Agreement and not otherwise
defined herein have, as used herein, the respective meanings provided for therein.




          SECTION 2. Representations, Warranties and Covenants. Each of the Guarantors
represents and warrants (which representations and warranties shall be deemed to have been renewed
at the time of the making, conversion or continuation of any Loan or issuance of any Letter of
Credit) that:





     (A) It is a corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing or of active status under the laws of its
jurisdiction of incorporation, organization or formation and has all requisite authority to
conduct its business in each jurisdiction in which its business is conducted, except to the
extent that the failure to have such authority could not reasonably be expected to have a
Material Adverse Effect.



 









 






     (B) It (to the extent applicable) has the requisite power and authority and legal right
to execute and deliver this Guaranty and to perform its obligations hereunder. The
execution and delivery by each Guarantor of this Guaranty and the performance by each of its
obligations hereunder have been duly authorized by proper proceedings, and this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, respectively,
enforceable against such Guarantor, respectively, in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally.




     (C) Neither the execution and delivery by it of this Guaranty, nor the consummation by
it of the transactions herein contemplated, nor compliance by it with the provisions hereof
will (i) violate any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on it or its articles or certificate of incorporation (or equivalent charter
documents), limited liability company or partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating agreement or other management
agreement, as the case may be, or the provisions of any indenture, instrument or agreement
to which the Borrower or any of its Subsidiaries is a party or is subject, or by which it,
or its property, is bound, or (ii) conflict with, or constitute a default under, or result
in, or require, the creation or imposition of any Lien in, of or on its property pursuant to
the terms of, any such indenture, instrument or agreement (other than any Loan Document).
No order, consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has not been
obtained by it, is required to be obtained by it in connection with the execution, delivery
and performance by it of, or the legality, validity, binding effect or enforceability
against it of, this Guaranty.



          In addition to the foregoing, each of the Guarantors covenants that, so long as any Lender has
any Commitment outstanding under the Credit Agreement or any amount payable under the Credit
Agreement or any other Guaranteed Obligations shall remain unpaid, it will, and, if necessary, will
enable the Borrower to, fully comply with those covenants and agreements of the Borrower applicable
to such Guarantor set forth in the Credit Agreement.




          SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally guarantees,
jointly with the other Guarantors and severally, the full and punctual payment and performance when
due (whether at stated maturity, upon acceleration or otherwise) of the Obligations, including,
without limitation, (i) the principal of and interest on each Loan made to the Borrower pursuant to
the Credit Agreement, (ii) any obligations of the Borrower to reimburse LC Disbursements
(“Reimbursement Obligations”), (iii) all other amounts payable by the Borrower or any of
its Subsidiaries under the Credit Agreement and the other Loan Documents and (iv) the punctual and
faithful performance, keeping, observance, and fulfillment by the Borrower of all of the
agreements, conditions, covenants, and obligations of the Borrower contained in the Loan Documents
(all of the foregoing being referred to collectively as the “Guaranteed Obligations” and the
holders from time to time of the Guaranteed Obligations being referred to collectively as the
“Holders of Guaranteed Obligations”). Upon (x) the failure by the Borrower or any of its
Affiliates, as applicable, to pay punctually any such amount or perform such obligation, and (y)
such failure continuing beyond any applicable grace or notice and cure period, each of the
Guarantors agrees that it shall forthwith on demand pay such amount or perform such obligation at
the place and in the manner specified in the Credit Agreement or the relevant Loan Document, as the
case may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable
and unconditional guaranty of payment and is not a guaranty of collection.







2









 








          SECTION 4. Guaranty Unconditional. The obligations of each of the Guarantors
hereunder shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:





     (A) any extension, renewal, settlement, indulgence, compromise, waiver or release of or
with respect to the Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed
Obligations, whether (in any such case) by operation of law or otherwise, or any failure or
omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or with respect to any obligation of any
other guarantor of any of the Guaranteed Obligations;




     (B) any modification or amendment of or supplement to the Credit Agreement or any other
Loan Document, including, without limitation, any such amendment which may increase the
amount of, or the interest rates applicable to, any of the Obligations guaranteed hereby;




     (C) any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral securing the Guaranteed
Obligations or any part thereof, any other guaranties with respect to the Guaranteed
Obligations or any part thereof, or any other obligation of any person or entity with
respect to the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed Obligations;




     (D) any change in the corporate, partnership or other existence, structure or ownership
of the Borrower or any other guarantor of any of the Guaranteed Obligations, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or
any other guarantor of the Guaranteed Obligations, or any of their respective assets or any
resulting release or discharge of any obligation of the Borrower or any other guarantor of
any of the Guaranteed Obligations;




     (E) the existence of any claim, setoff or other rights which the Guarantors may have at
any time against the Borrower, any other guarantor of any of the Guaranteed Obligations, the
Administrative Agent, any Holder of Guaranteed Obligations or any other Person, whether in
connection herewith or in connection with any unrelated transactions; provided that nothing
herein shall prevent the assertion of any such claim by separate suit or compulsory
counterclaim;




     (F) the enforceability or validity of the Guaranteed Obligations or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto or with
respect to any collateral securing the Guaranteed Obligations or any part thereof, or any
other invalidity or unenforceability relating to or against the Borrower or any other
guarantor of any of the Guaranteed Obligations, for any reason related to the Credit
Agreement, any other Loan Document, or any provision of applicable law, decree, order or
regulation of any jurisdiction purporting to prohibit the payment by the Borrower or any
other guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations or
otherwise affecting any term of any of the Guaranteed Obligations;




     (G) the failure of the Administrative Agent to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or collateral for the
Guaranteed Obligations, if any;



3









 






     (H) the election by, or on behalf of, any one or more of the Holders of Guaranteed
Obligations, in any proceeding instituted under Chapter 11 of Title 11 of the United States
Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section
1111(b)(2) of the Bankruptcy Code;




     (I) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;




     (J) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of the claims of the Holders of Guaranteed Obligations or the Administrative Agent for
repayment of all or any part of the Guaranteed Obligations;




     (K) the failure of any other guarantor to sign or become party to this Guaranty or any
amendment, change, or reaffirmation hereof; or




     (L) any other act or omission to act or delay of any kind by the Borrower, any other
guarantor of the Guaranteed Obligations, the Administrative Agent, any Holder of Guaranteed
Obligations or any other Person or any other circumstance whatsoever which might, but for
the provisions of this Section 4, constitute a legal or equitable discharge of any
Guarantor’s obligations hereunder except as provided in Section 5.



          SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors’ obligations hereunder shall remain in full force and
effect until all Guaranteed Obligations shall have been paid in full in cash and the Commitments
and all Letters of Credit issued under the Credit Agreement shall have terminated or expired. If
at any time any payment of the principal of or interest on any Loan, any Reimbursement Obligation
or any other amount payable by the Borrower or any other party under the Credit Agreement or any
other Loan Document is rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, each of the Guarantors’ obligations
hereunder with respect to such payment shall be reinstated as though such payment had been due but
not made at such time. The parties hereto acknowledge and agree that each of the Guaranteed
Obligations shall be due and payable in the same currency as such Guaranteed Obligation is
denominated, but if currency control or exchange regulations are imposed in the country which
issues such currency with the result that such currency (the “Original Currency”) no longer
exists or the relevant Guarantor is not able to make payment in such Original Currency, then all
payments to be made by such Guarantor hereunder in such currency shall instead be made when due in
Dollars in an amount equal to the Dollar Amount (as of the date of payment) of such payment due, it
being the intention of the parties hereto that each Guarantor takes all risks of the imposition of
any such currency control or exchange regulations.




          SECTION 6. General Waivers; Additional Waivers.





     (A) General Waivers. Each of the Guarantors irrevocably waives acceptance hereof,
presentment, demand or action on delinquency, protest, the benefit of any statutes of
limitations and, to the fullest extent permitted by law, any notice not provided for herein,
as well as any requirement that at any time any action be taken by any Person against the
Borrower, any other guarantor of the Guaranteed Obligations, or any other Person.




     (B) Additional Waivers. Notwithstanding anything herein to the contrary, each of the
Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives:



4









 






     (i) any right it may have to revoke this Guaranty as to future indebtedness or notice
of acceptance hereof;




     (ii) (a) notice of acceptance hereof; (b) notice of any loans or other financial
accommodations made or extended under the Loan Documents or the creation or existence of any
Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations, subject,
however, to each Guarantor’s right to make inquiry of Administrative Agent and Holders of
Guaranteed Obligations to ascertain the amount of the Guaranteed Obligations at any
reasonable time; (d) notice of any adverse change in the financial condition of the Borrower
or of any other fact that might increase such Guarantor’s risk hereunder; (e) notice of
presentment for payment, demand, protest, and notice thereof as to any instruments among the
Loan Documents; (f) notice of any Default or Event of Default; and (g) all other notices
(except if such notice is specifically required to be given to such Guarantor hereunder or
under the Loan Documents) and demands to which each Guarantor might otherwise be entitled;




     (iii) its right, if any, to require the Administrative Agent and the other Holders of
Guaranteed Obligations to institute suit against, or to exhaust any rights and remedies
which the Administrative Agent and the other Holders of Guaranteed Obligations has or may
have against, the other Guarantors or any third party, or against any collateral provided by
the other Guarantors, or any third party; and each Guarantor further waives any defense
arising by reason of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of
the other Guarantors or by reason of the cessation from any cause whatsoever of the
liability of the other Guarantors in respect thereof;




     (iv) (a) any rights to assert against the Administrative Agent and the other Holders of
Guaranteed Obligations any defense (legal or equitable), set-off, counterclaim, or claim
which such Guarantor may now or at any time hereafter have against the other Guarantors or
any other party liable to the Administrative Agent and the other Holders of Guaranteed
Obligations; (b) any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection, sufficiency,
validity, or enforceability of the Guaranteed Obligations or any security therefor; (c) any
defense such Guarantor has to performance hereunder, and any right such Guarantor has to be
exonerated, arising by reason of: the impairment or suspension of the Administrative
Agent’s and the other Holders of Guaranteed Obligations’ rights or remedies against the
other Guarantors; the alteration by the Administrative Agent and the other Holders of
Guaranteed Obligations of the Guaranteed Obligations; any discharge of the other Guarantors’
obligations to the Administrative Agent and the other Holders of Guaranteed Obligations by
operation of law as a result of the Administrative Agent’s and the other Holders of
Guaranteed Obligations’ intervention or omission; or the acceptance by the Administrative
Agent and the other Holders of Guaranteed Obligations of anything in partial satisfaction of
the Guaranteed Obligations; and (d) the benefit of any statute of limitations affecting such
Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or
delay the operation of any statute of limitations applicable to the Guaranteed Obligations
shall similarly operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor’s liability hereunder; and




     (v) any defense arising by reason of or deriving from (a) any claim or defense based
upon an election of remedies by the Administrative Agent and the other Holders of Guaranteed
Obligations; or (b) any election by the Administrative Agent and the other Holders of
Guaranteed Obligations under Section 1111(b) of Title 11 of the United States Code entitled
“Bankruptcy”, as



5









 







now and hereafter in effect (or any successor statute), to limit the amount of, or any
collateral securing, its claim against the Guarantors.



          SECTION 7. Subordination of Subrogation; Subordination of Intercompany Indebtedness.





     (A) Subordination of Subrogation. Until the Guaranteed Obligations have been fully and
finally performed and indefeasibly paid in full in cash, the Guarantors (i) shall have no
right of subrogation with respect to such Guaranteed Obligations and (ii) waive any right to
enforce any remedy which the Holders of Guaranteed Obligations, the Issuing Bank or the
Administrative Agent now have or may hereafter have against the Borrower, any endorser or
any guarantor of all or any part of the Guaranteed Obligations or any other Person, and the
Guarantors waive any benefit of, and any right to participate in, any security or collateral
given to the Holders of Guaranteed Obligations, the Issuing Bank and the Administrative
Agent to secure the payment or performance of all or any part of the Guaranteed Obligations
or any other liability of the Borrower to the Holders of Guaranteed Obligations or the
Issuing Bank. Should any Guarantor have the right, notwithstanding the foregoing, to
exercise its subrogation rights, each Guarantor hereby expressly and irrevocably (A)
subordinates any and all rights at law or in equity to subrogation, reimbursement,
exoneration, contribution, indemnification or set off that such Guarantor may have to the
indefeasible payment in full in cash of the Guaranteed Obligations and (B) waives any and
all defenses available to a surety, guarantor or accommodation co-obligor until the
Guaranteed Obligations are indefeasibly paid in full in cash. Each Guarantor acknowledges
and agrees that this subordination is intended to benefit the Administrative Agent and the
other Holders of Guaranteed Obligations and shall not limit or otherwise affect such
Guarantor’s liability hereunder or the enforceability of this Guaranty, and that the
Administrative Agent, the other Holders of Guaranteed Obligations and their respective
successors and assigns are intended third party beneficiaries of the waivers and agreements
set forth in this Section 7(A).




     (B) Subordination of Intercompany Indebtedness. Each Guarantor agrees that any and all
claims of such Guarantor against the Borrower or any other Guarantor hereunder (each an
“Obligor”) with respect to any “Intercompany Indebtedness” (as hereinafter defined),
any endorser, obligor or any other guarantor of all or any part of the Guaranteed
Obligations, or against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Guaranteed Obligations;
provided that, as long as no Event of Default has occurred and is continuing, such
Guarantor may receive payments of principal and interest from any Obligor with respect to
Intercompany Indebtedness. Notwithstanding any right of any Guarantor to ask, demand, sue
for, take or receive any payment from any Obligor, all rights, liens and security interests
of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of
any other Obligor shall be and are subordinated to the rights of the Holders of Guaranteed
Obligations and the Administrative Agent in those assets. No Guarantor shall have any right
to possession of any such asset or to foreclose upon any such asset, whether by judicial
action or otherwise, unless and until all of the Guaranteed Obligations shall have been
fully paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document have been terminated. If all or any part of the assets of any Obligor, or the
proceeds thereof, are subject to any distribution, division or application to the creditors
of such Obligor, whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of
creditors or any other action or proceeding, or if the business of any such Obligor is
dissolved or if substantially all of the assets of any such Obligor are sold, then, and in
any such event (such events being herein referred to as an “Insolvency Event”), any
payment or distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any



6









 







indebtedness of any Obligor to any Guarantor (“Intercompany Indebtedness”)
shall be paid or delivered directly to the Administrative Agent for application on any of
the Guaranteed Obligations, due or to become due, until such Guaranteed Obligations shall
have first been fully paid and satisfied (in cash). Should any payment, distribution,
security or instrument or proceeds thereof be received by the applicable Guarantor upon or
with respect to the Intercompany Indebtedness after any Insolvency Event and prior to the
satisfaction of all of the Guaranteed Obligations and the termination of all financing
arrangements pursuant to any Loan Document among the Borrower and the Holders of Guaranteed
Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the
benefit of the Holders of Guaranteed Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of the Holders of Guaranteed Obligations, in precisely
the form received (except for the endorsement or assignment of the Guarantor where
necessary), for application to any of the Guaranteed Obligations, due or not due, and, until
so delivered, the same shall be held in trust by the Guarantor as the property of the
Holders of Guaranteed Obligations. If any such Guarantor fails to make any such endorsement
or assignment to the Administrative Agent, the Administrative Agent or any of its officers
or employees is irrevocably authorized to make the same. Each Guarantor agrees that until
the Guaranteed Obligations (other than the contingent indemnity obligations) have been paid
in full (in cash) and satisfied and all financing arrangements pursuant to any Loan Document
among the Borrower and the Holders of Guaranteed Obligations have been terminated, no
Guarantor will assign or transfer to any Person (other than the Administrative Agent) any
claim any such Guarantor has or may have against any Obligor.




     SECTION 8. Contribution with Respect to Guaranteed Obligations.




     (A) To the extent that any Guarantor shall make a payment under this Guaranty (a
“Guarantor Payment”) which, taking into account all other Guarantor Payments then
previously or concurrently made by any other Guarantor, exceeds the amount which otherwise
would have been paid by or attributable to such Guarantor if each Guarantor had paid the
aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion
as such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior
to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors
as determined immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Guaranteed Obligations and termination of the
Credit Agreement, such Guarantor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Guarantor for the amount of
such excess, pro rata based upon their respective Allocable Amounts in effect immediately
prior to such Guarantor Payment. Notwithstanding any other provision of this Guaranty, the
amount guaranteed by each Guarantor hereunder shall be limited to the extent, if any,
required so that its obligations hereunder shall not be subject to avoidance under Section
548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law. In determining the
limitations, if any, on the amount of any Guarantor’s obligations hereunder pursuant to the
preceding sentence, it is the intention of the parties hereto that any rights of
subrogation, indemnification or contribution which such Guarantor may have under this
Guaranty, any other agreement or applicable law shall be taken into account.




     (B) As of any date of determination, the “Allocable Amount” of any Guarantor shall be
equal to the excess of the fair saleable value of the property of such Guarantor over the
total liabilities of such Guarantor (including the maximum amount reasonably expected to
become due in respect of contingent liabilities, calculated, without duplication, assuming
each other Guarantor that is also liable for such contingent liability pays its ratable
share thereof), giving effect to all



7









 







payments made by other Guarantors as of such date in a manner to maximize the amount of
such contributions.




     (C) This Section 8 is intended only to define the relative rights of the Guarantors,
and nothing set forth in this Section 8 is intended to or shall impair the obligations of
the Guarantors, jointly and severally, to pay any amounts as and when the same shall become
due and payable in accordance with the terms of this Guaranty.




     (D) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution
and indemnification is owing.




     (E) The rights of the indemnifying Guarantors against other Guarantors under this
Section 8 shall be exercisable upon the full and indefeasible payment of the Guaranteed
Obligations in cash and the termination of the Credit Agreement.



          SECTION 9. Stay of Acceleration. If acceleration of the time for payment of any
amount payable by the Borrower under the Credit Agreement or any other Loan Document is stayed upon
the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement or any other Loan Document shall nonetheless
be payable by each of the Guarantors hereunder forthwith on demand by the Administrative Agent.




          SECTION 10. Notices. All notices, requests and other communications to any party
hereunder shall be given in the manner prescribed in Article IX of the Credit Agreement with
respect to the Administrative Agent at its notice address therein and with respect to any
Guarantor, in care of the Borrower at the address of the Borrower set forth in the Credit Agreement
or such other address or telecopy number as such party may hereafter specify for such purpose by
notice to the Administrative Agent in accordance with the provisions of such Article IX.




          SECTION 11. No Waivers. No failure or delay by the Administrative Agent or any other
Holder of Guaranteed Obligations in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies provided in this Guaranty, the Credit Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.




          SECTION 12. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the other Holders of Guaranteed Obligations and their respective
successors and permitted assigns; provided, that no Guarantor shall have any right to
assign its rights or obligations hereunder without the consent of all of the Lenders, and any such
assignment in violation of this Section 12 shall be null and void; and in the event of an
assignment of any amounts payable under the Credit Agreement or the other Loan Documents in
accordance with the respective terms thereof, the rights hereunder, to the extent applicable to the
indebtedness so assigned, may be transferred with such indebtedness. This Guaranty shall be binding
upon each of the Guarantors and their respective successors and assigns.




          SECTION 13. Changes in Writing. Other than in connection with the addition of
additional Subsidiaries, which become parties hereto by executing a supplement hereto in the form
attached as Annex I, neither this Guaranty nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each of the Guarantors and the
Administrative Agent.







8









 








          SECTION 14. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.




          SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL; IMMUNITY.





     (A) CONSENT TO JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN
THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY
AND EACH GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER TO
BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY GUARANTOR AGAINST THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR
ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
THE CITY OF NEW YORK.




     (B) WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT
OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER AND FURTHER WAIVES ANY RIGHT
TO INTERPOSE ANY COUNTERCLAIM RELATED TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY IN SUCH ACTION.




     (C) TO THE EXTENT THAT ANY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR
OTHERWISE), EACH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS GUARANTY.



          SECTION 16. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Guaranty.




          SECTION 17. Taxes, Expenses of Enforcement, etc.




          (A) Taxes.







9









 









     (i) Each payment by any Guarantor hereunder or under any promissory note or
application for a Letter of Credit shall be made without withholding for any Taxes,
unless such withholding is required by any law. If any Guarantor determines, in its
sole discretion exercised in good faith, that it is so required to withhold Taxes,
then such Guarantor may so withhold and shall timely pay the full amount of withheld
Taxes to the relevant Governmental Authority in accordance with applicable law. If
such Taxes are Indemnified Taxes, then the amount payable by the Guarantor shall be
increased as necessary so that, net of such withholding (including such withholding
applicable to additional amounts payable under this Section), the applicable
Recipient receives the amount it would have received had no such withholding been
made.




     (ii) In addition, such Guarantor shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.




     (iii) As soon as practicable after any payment of Indemnified Taxes by any
Guarantor to a Governmental Authority, such Guarantor shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.




     (iv) The Guarantors shall jointly and severally indemnify each Recipient for
any Indemnified Taxes that are paid or payable by such Recipient in connection with
any Loan Document (including amounts payable under this Section 17(A)) and any
reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 17(A) shall be paid within
ten (10) days after the Recipient delivers to any Guarantor a certificate stating
the amount of any Indemnified Taxes so payable by such Recipient. Such certificate
shall be conclusive of the amount so payable absent manifest error. Such Recipient
shall deliver a copy of such certificate to the Administrative Agent. In the case of
any Lender making a claim under this Section 17(A) on behalf of any of its
beneficial owners, an indemnity payment under this Section 17(A) shall be due only
to the extent that such Lender is able to establish that, with respect to the
applicable Indemnified Taxes, such beneficial owners supplied to the applicable
Persons such properly completed and executed documentation necessary to claim any
applicable exemption from, or reduction of, such Indemnified Taxes.




     (v) By accepting the benefits hereof, each Lender agrees that it will comply
with Section 2.17(f) of the Credit Agreement.




     (B) Expenses of Enforcement, Etc. The Guarantors agree to reimburse the
Administrative Agent and the other Holders of Guaranteed Obligations for any reasonable
costs and out-of-pocket expenses (including attorneys’ fees) paid or incurred by the
Administrative Agent or any other Holder of Guaranteed Obligations in connection with the
collection and enforcement of amounts due under the Loan Documents, including without
limitation this Guaranty.



          SECTION 18. Setoff. At any time after all or any part of the Guaranteed Obligations
have become due and payable (by acceleration or otherwise), each Holder of Guaranteed Obligations
(including the Administrative Agent) may, without notice to any Guarantor and regardless of the





10











 




acceptance of any security or collateral for the payment hereof, appropriate and apply in
accordance with the terms of the Credit Agreement toward the payment of all or any part of the
Guaranteed Obligations (i) any indebtedness due or to become due from such Holder of Guaranteed
Obligations or the Administrative Agent to any Guarantor, and (ii) any moneys, credits or other
property belonging to any Guarantor, at any time held by or coming into the possession of such
Holder of Guaranteed Obligations (including the Administrative Agent) or any of their respective
affiliates.




          SECTION 19. Financial Information. Each Guarantor hereby assumes responsibility for
keeping itself informed of the financial condition of the Borrower and any and all endorsers and/or
other Guarantors of all or any part of the Guaranteed Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part thereof, that
diligent inquiry would reveal, and each Guarantor hereby agrees that none of the Holders of
Guaranteed Obligations (including the Administrative Agent) shall have any duty to advise such
Guarantor of information known to any of them regarding such condition or any such circumstances.
In the event any Holder of Guaranteed Obligations (including the Administrative Agent), in its sole
discretion, undertakes at any time or from time to time to provide any such information to a
Guarantor, such Holder of Guaranteed Obligations (including the Administrative Agent) shall be
under no obligation (i) to undertake any investigation not a part of its regular business routine,
(ii) to disclose any information which such Holder of Guaranteed Obligations (including the
Administrative Agent), pursuant to accepted or reasonable commercial finance or banking practices,
wishes to maintain confidential or (iii) to make any other or future disclosures of such
information or any other information to such Guarantor.




          SECTION 20. Severability. Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.




          SECTION 21. Merger. This Guaranty represents the final agreement of each of the
Guarantors with respect to the matters contained herein and may not be contradicted by evidence of
prior or contemporaneous agreements, or subsequent oral agreements, between the Guarantor and any
Holder of Guaranteed Obligations (including the Administrative Agent).




          SECTION 22. Headings. Section headings in this Guaranty are for convenience of
reference only and shall not govern the interpretation of any provision of this Guaranty.




          SECTION 23. Judgment Currency. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due from any Guarantor hereunder in the currency expressed to be
payable herein (the “specified currency”) into another currency, the parties hereto agree,
to the fullest extent that they may effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent could purchase the
specified currency with such other currency at the Administrative Agent’s main New York City office
on the Business Day preceding that on which final, non-appealable judgment is given. The
obligations of each Guarantor in respect of any sum due hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to the extent that on
the Business Day following receipt by any Holder of Guaranteed Obligations (including the
Administrative Agent), as the case may be, of any sum adjudged to be so due in such other currency
such Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be, may
in accordance with normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less than the sum
originally due to such Holder of Guaranteed Obligations (including the Administrative Agent), as
the case may be, in the specified currency, each Guarantor






11









 








agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Holder of Guaranteed Obligations (including
the Administrative Agent), as the case may be, against such loss, and if the amount of the
specified currency so purchased exceeds (a) the sum originally due to any Holder of Guaranteed
Obligations (including the Administrative Agent), as the case may be, in the specified currency and
(b) amounts shared with other Holders of Guaranteed Obligations as a result of allocations of such
excess as a disproportionate payment to such other Holder of Guaranteed Obligations under Section
2.18 of the Credit Agreement, such Holder of Guaranteed Obligations (including the Administrative
Agent), as the case may be, agrees, by accepting the benefits hereof, to remit such excess to such
Guarantor.




          SECTION 24. Termination of Guaranty. The obligations of any Guarantor under this
Guaranty shall automatically terminate in accordance with Section 9.14 of the Credit Agreement.




Remainder of Page Intentionally Blank.



12









 





          IN WITNESS WHEREOF, each of the Initial Guarantors has caused this Guaranty to be duly
executed by its authorized officer as of the day and year first above written.




	 	 	 	 	 	 	 

	CHICO’S RETAIL SERVICES, INC.	 	 	CHICO’S DISTRIBUTION SERVICES, LLC
	 
	By: 	 	 	By: 	 
	 	Name: 	 	 	 	Name: 	 
	 	Title:	 	 	 	Title:	 
	 
	SOMA INTIMATES, LLC	 	 	WHITE HOUSE | BLACK MARKET, INC.
	 
	By: 	 	 	By: 	 
	 	Name: 	 	 	 	Name: 	 
	 	Title:	 	 	 	Title:	 
	 
	CHICO’S BRANDS INVESTMENTS, INC.	 	 	 	 
	 
	By: 	 	 	 	 	 
	 	Name: 	 	 	 	 	 
	 	Title:	 	 	 	 	 






13









 






Acknowledged and Agreed

as of the date first written above:




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



14









 






	 	 	 	 	 



ANNEX I TO GUARANTY




          Reference is hereby made to the Guaranty (the “Guaranty”) made as of July 27, 2011, by
and among [GUARANTORS TO COME] (the “Initial Guarantors” and along with any additional
Subsidiaries of the Borrower, which become parties thereto and together with the undersigned, the
“Guarantors”) in favor of the Administrative Agent, for the ratable benefit of the Holders
of Guaranteed Obligations, under the Credit Agreement. Capitalized terms used herein and not
defined herein shall have the meanings given to them in the Guaranty. By its execution below, the
undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited liability company] (the
“New Guarantor”), agrees to become, and does hereby become, a Guarantor under the Guaranty
and agrees to be bound by such Guaranty as if originally a party thereto. By its execution below,
the undersigned represents and warrants as to itself that all of the representations and warranties
contained in Section 2 of the Guaranty are true and correct in all respects as of the date hereof.




          IN WITNESS WHEREOF, New Guarantor has executed and delivered this Annex I counterpart to the
Guaranty as of this __________ day of _________, 20__.




	 	 	 	 	 
	 	[NAME OF NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Its: 	 
	 	 	 	 



15









 






	 	 	 	 	 



EXHIBIT G-1




FORM OF U.S. TAX CERTIFICATE




     (For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)



     Reference is hereby made to the Credit Agreement dated as of July 27, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Chico’s FAS, Inc. (the “Borrower”), the Lenders party thereto and JPMorgan Chase Bank,
N.A., as administrative agent (in such capacity, the “Administrative Agent”).



     Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not
a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of
the Code and (v) the interest payments in question are not effectively connected with the
undersigned’s conduct of a U.S. trade or business.



     The undersigned has furnished the Administrative Agent and the Borrower with a certificate of
its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform the Borrower and the Administrative Agent and (2) the undersigned shall have at
all times furnished the Borrower and the Administrative Agent with a properly completed and
currently effective certificate in either the calendar year in which each payment is to be made to
the undersigned, or in either of the two calendar years preceding such payments.



     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Date: __________, 20[__]











 









 








EXHIBIT G-2




FORM OF U.S. TAX CERTIFICATE




     (For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)



     Reference is hereby made to the Credit Agreement dated as of July 27, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Chico’s FAS, Inc. (the “Borrower”), the Lenders party thereto and JPMorgan Chase Bank,
N.A., as administrative agent (in such capacity, the “Administrative Agent”).



     Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
with respect to the extension of credit pursuant to this Credit Agreement, neither the undersigned
nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered
into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of
the Code, (iv) none of its partners/members is a ten percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and
(vi) the interest payments in question are not effectively connected with the undersigned’s or its
partners/members’ conduct of a U.S. trade or business.



     The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY
accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the
Administrative Agent and (2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.



     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 


Date: ________ __, 20[__]











 









 








EXHIBIT G-3




FORM OF U.S. TAX CERTIFICATE




     (For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)



     Reference is hereby made to the Credit Agreement dated as of July 27, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Chico’s FAS, Inc. (the “Borrower”), the Lenders party thereto and JPMorgan Chase Bank,
N.A., as administrative agent (in such capacity, the “Administrative Agent”).



     Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest
payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade
or business.



     The undersigned has furnished its participating Lender with a certificate of its non- U.S.
person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if
the information provided on this certificate changes, the undersigned shall promptly so inform such
Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.



     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Date: ________ __, 20[__]











 









 








EXHIBIT G-4




FORM OF U.S. TAX CERTIFICATE




     (For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)



     Reference is hereby made to the Credit Agreement dated as of July 27, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Chico’s FAS, Inc. (the “Borrower”), the Lenders party thereto and JPMorgan Chase Bank,
N.A., as administrative agent (in such capacity, the “Administrative Agent”).



     Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its partners/members is a ten percent shareholder of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign
corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the
interest payments in question are not effectively connected with the undersigned’s or its
partners/members’ conduct of a U.S. trade or business.



     The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by an
IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (1) if the information provided on this
certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.



     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	 	[NAME OF PARTICIPANT]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Date: ________ __, 20[__]









 









 








Schedule 3.01




Subsidiaries of Chico’s FAS, Inc.


Material Domestic Subsidiaries:



Chico’s Retail Services, Inc.

A Florida corporation

100% of shares issued and outstanding owned by Chico’s FAS, Inc.



White House | Black Market, Inc.,

A Florida corporation

100% of shares issued and outstanding owned by Chico’s Retail Services, Inc.



Chico’s Distribution Services, LLC

A Georgia limited liability company

Chico’s FAS, Inc. is the sole manager



Soma Intimates, LLC

A Florida limited liability company

Chico’s FAS, Inc. is the sole manager



Chico’s Brands Investments, Inc.

A Florida corporation

100% of shares issued and outstanding owned by Chico’s Retail Services, Inc.



Subsidiaries that are not Material Domestic Subsidiaries:



Chico’s Creative Design, Inc.

Incorporated in Florida

100% of shares issued and outstanding owned by Chico’s FAS, Inc.



Chico’s Production Services, Inc.

Incorporated in Florida

100% of shares issued and outstanding owned by Chico’s FAS, Inc.







2









 








Schedule 6.01




Existing Indebtedness



	 	 	 	 	 	 	 	 	 	 	 
	Outstanding Standby Letter of Credit
	 	 	Letter of Credit	 	 	 	 	 	 	 	 
	Account Party	 	Number	 	Currency	 	Amount	 	Expiry Date	 	Beneficiary Name
	 
	 	 	 	 	 	 	 	 	 	158 West 27th Street LLC c/o
	4753
	 	F853786	 	USD	 	69,239.17	 	3/31/2012	 	Meringoff Properties, Inc.
	 
	 	 	 	 	 	 	 	 	 	






3









 






Schedule 6.02




Existing Liens



None








4









 








Schedule 6.04




Existing Investments



None





5