EX-10.1 Five Year Credit Agreement



 





Exhibit 10.1




EXECUTION COPY




U.S. $1,000,000,000




FIVE YEAR CREDIT AGREEMENT




Dated as of May 25, 2007




Among




OFFICE DEPOT, INC.

as Borrower




THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders




CITICORP USA, INC.

and

BNP PARIBAS

as Syndication Agents




BANK OF AMERICA, N.A.

and

JPMORGAN CHASE BANK, N.A.

as Documentation Agents




CITIGROUP GLOBAL MARKETS INC.

WACHOVIA CAPITAL MARKETS, LLC

and

BNP PARIBAS SECURITIES CORP.

as Joint Lead Arrangers




CITIGROUP GLOBAL MARKETS INC.

as Sole Bookrunner




and




WACHOVIA BANK, NATIONAL ASSOCIATION

as Administrative Agent














 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	ARTICLE I	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 1.01.
	 	Certain Defined Terms
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 1.02.
	 	Computation of Time Periods
	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 1.03.
	 	Accounting Terms
	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.01.
	 	The Revolving Credit Advances, Swing Line Advances and Letters of Credit
	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.02.
	 	Making the Revolving Credit Advances and Swing Line Advances
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.03.
	 	The Competitive Bid Advances
	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.04.
	 	Issuance of and Drawings and Reimbursement Under Letters of Credit
	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.05.
	 	Fees
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.06.
	 	Optional Termination or Reduction of the Commitments
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.07.
	 	Repayment of Revolving Credit Advances
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.08.
	 	Interest on Revolving Credit Advances and Swing Line Advances
	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.09.
	 	Interest Rate Determination
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.10.
	 	Optional Conversion of Revolving Credit Advances
	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.11.
	 	Prepayments of Revolving Credit Advances
	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.12.
	 	Increased Costs
	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.13.
	 	Illegality
	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.14.
	 	Payments and Computations
	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.15.
	 	Taxes
	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.16.
	 	Sharing of Payments, Etc.
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.17.
	 	Evidence of Debt
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.18.
	 	Use of Proceeds
	 	 	32	 
	 
	 	 	 	 	 	 	 	 





i









 






	 	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.19.
	 	Increase in the Aggregate Commitments
	 	 	32	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 2.20.
	 	Extension of Termination Date
	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 3.01.
	 	Conditions Precedent to Effectiveness of Sections 2.01 and 2.03
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 3.02.
	 	Conditions Precedent to Each Revolving Credit Borrowing, Letter of
Credit Issuance, Commitment Increase and Extension Date.
	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 3.03.
	 	Conditions Precedent to Each Competitive Bid Borrowing
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 3.04.
	 	Determinations Under Section 3.01
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 4.01.
	 	Representations and Warranties of the Borrower
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 5.01.
	 	Affirmative Covenants
	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 5.02.
	 	Negative Covenants
	 	 	41	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 5.03.
	 	Financial Covenants
	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 6.01.
	 	Events of Default
	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 6.02.
	 	Actions in Respect of the Letters of Credit upon Default
	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.01.
	 	Authorization and Action
	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.02.
	 	Agent’s Reliance, Etc.
	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.03.
	 	Wachovia and Affiliates
	 	 	46	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.04.
	 	Lender Credit Decision
	 	 	46	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.05.
	 	Indemnification
	 	 	46	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.06.
	 	Successor Agent
	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.07.
	 	Sub-Agent
	 	 	47	 
	 
	 	 	 	 	 	 	 	 





ii









 






	 	 	 	 	 	 	 	 	 
	 

	 	SECTION 7.08.
	 	Other Agents
	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.01.
	 	Amendments, Etc.
	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.02.
	 	Notices, Etc.
	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.03.
	 	No Waiver; Remedies
	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.04.
	 	Costs and Expenses
	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.05.
	 	Right of Set-off
	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.06.
	 	Binding Effect
	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.07.
	 	Assignments and Participations
	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.08.
	 	Confidentiality
	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.09.
	 	Governing Law
	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.10.
	 	Execution in Counterparts
	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.11.
	 	Judgment
	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.12.
	 	Jurisdiction, Etc.
	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.13.
	 	Substitution of Currency
	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.14.
	 	No Liability of the Lenders as Letter of Credit Issuers
	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.15.
	 	Patriot Act
	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 8.16.
	 	Waiver of Jury Trial
	 	 	54	 






iii









 





	 	 	 	 	 
	Schedules	 	 
	 
	 	 	 	 
	Schedule I — List of Applicable Lending Offices
	 
	 	 	 	 
	Schedule 3.01(b) — Disclosed Litigation
	 
	 	 	 	 
	Schedule 4.01(m) — Intercompany Debt
	 
	 	 	 	 
	Schedule 5.02(a) — Existing Liens
	 
	 	 	 	 
	Schedule 5.02(e) — Existing Debt
	 
	 	 	 	 
	Exhibits
	 
	 	 	 	 
	Exhibit A-1

	 	—
	 	Form of Revolving Credit Note
	 
	 	 	 	 
	Exhibit A-2

	 	—
	 	Form of Competitive Bid Note
	 
	 	 	 	 
	Exhibit B-1

	 	—
	 	Form of Notice of Revolving Credit Borrowing
	 
	 	 	 	 
	Exhibit B-2

	 	—
	 	Form of Notice of Competitive Bid Borrowing
	 
	 	 	 	 
	Exhibit B-3

	 	—
	 	Form of Notice of Swing Line Borrowing
	 
	 	 	 	 
	Exhibit C

	 	—
	 	Form of Assignment and Acceptance
	 
	 	 	 	 
	Exhibit D

	 	—
	 	Form of Guaranty
	 
	 	 	 	 
	Exhibit E

	 	—
	 	Form of Opinion of Counsel for the Borrower






iv









 






FIVE YEAR CREDIT AGREEMENT




Dated as of May 25, 2007




     OFFICE DEPOT, INC., a Delaware corporation (the “Borrower”), the banks,
financial institutions and other institutional lenders (the “Initial Lenders”) listed on
the signature pages hereof, CITICORP USA, INC. and BNP PARIBAS, as syndication agents , BANK OF
AMERICA, N.A. and JPMORGAN CHASE BANK, N.A., as documentation agents, CITIGROUP GLOBAL MARKETS
INC., WACHOVIA CAPITAL MARKETS, LLC and BNP PARIBAS SECURITIES CORP., as joint lead arrangers (the
“Arrangers”), CITIGROUP GLOBAL MARKETS INC., as sole bookrunner, and WACHOVIA BANK,
NATIONAL ASSOCIATION (“Wachovia”), as administrative agent (the “Agent”) for the
Lenders (as hereinafter defined), agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




               SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):





     “Advance” means a Revolving Credit Advance, a Competitive Bid Advance or a
Swing Line Advance.




     “Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or is a
director or officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”) of a
Person means the possession, direct or indirect, to direct or cause the direction of the
management and policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.




     “Agent’s Account” means (a) in the case of Advances denominated in Dollars, the
account of the Agent maintained by the Agent at Wachovia at its office at 201 South College
Street, Charlotte, North Carolina 28288, Account No. 01459670001944, Attention: Syndication
Agency Services, (b) in the case of Advances denominated in any Foreign Currency, the
account of the Sub-Agent designated in writing from time to time by the Agent to the
Borrower and the Lenders for such purpose and (c) in any such case, such other account of
the Agent as is designated in writing from time to time by the Agent to the Borrower and the
Lenders for such purpose.




     “Agent’s Correspondent” means Wachovia Bank, National Association, London
Branch, or any other financial institution designated by the Agent and notified to the
Borrower and the Lenders to act as the Agent’s correspondent hereunder with respect to the
distribution and payment of Advances.




     “Applicable Fixed Charge Ratio” means, at any time, the ratio of (a)
Consolidated EBITR of the Borrower and its Subsidiaries for the period of four consecutive
fiscal quarters most recently ended to (b) the sum of (i) net interest payable on, and
amortization of debt discount in respect of, all Debt during such period plus (ii)
rentals payable under leases of real or personal, or mixed, property during such period
plus (iii) interest and other continuing program fees (excluding initial closing
fees) related to an accounts receivable securitization program payable during such period,
as most recently reported to the Agent in accordance with Section 5.01(i)(i) and (ii), as
applicable.




     “Applicable Lending Office” means, with respect to each Lender, such Lender’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency
Lending Office in the case of a Eurocurrency Rate Advance and, in the case of a Competitive
Bid Advance, the office of such Lender
notified by such Lender to the Agent as its Applicable Lending Office with respect to
such Competitive Bid Advance.



1









 






     “Applicable Margin” means (a) for Base Rate Advances, 0% per annum and (b) for
Eurocurrency Rate Advances, as of any date, a percentage per annum determined by reference
to the Borrower’s Performance Level in effect on such date as set forth below:



	 	 	 	 	 
	Performance	 	Applicable Margin for
	Level	 	Eurocurrency Rate Advances
	Level 1

	 	 	0.270	%
	Level 2

	 	 	0.350	%
	Level 3

	 	 	0.400	%
	Level 4

	 	 	0.500	%
	Level 5

	 	 	0.675	%







     “Applicable Percentage” means, as of any date a percentage per annum determined
by reference to the Borrower’s Performance Level in effect on such date as set forth below:



	 	 	 	 	 
	Performance	 	Applicable
	Level	 	Percentage
	Level 1

	 	 	0.080	%
	Level 2

	 	 	0.100	%
	Level 3

	 	 	0.125	%
	Level 4

	 	 	0.150	%
	Level 5

	 	 	0.200	%







     “Applicable Utilization Fee” means, as of any date that the sum of the
aggregate Advances plus the Available Amount of all Letters of Credit exceed 50% of the
aggregate Revolving Credit Commitments, a percentage per annum determined by reference to
the Borrower’s Performance Level in effect on such date as set forth below:



	 	 	 	 	 
	Performance	 	Applicable
	Level	 	Utilization Fee
	Level 1

	 	 	0.050	%
	Level 2

	 	 	0.050	%
	Level 3

	 	 	0.100	%
	Level 4

	 	 	0.100	%
	Level 5

	 	 	0.125	%







     “Assignment and Acceptance” means an assignment and acceptance entered into by
a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of
Exhibit C hereto.




     “Assuming Lender” has the meaning specified in Section 2.19(d).




     “Assumption Agreement” has the meaning specified in Section 2.19(d)(ii).




     “Available Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit (assuming compliance at such time
with all conditions to drawing).



2









 






     “Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:




     (a) the rate of interest announced publicly by Wachovia in New York, New York,
from time to time, as Wachovia’s base rate; and




     (b) 1/2 of one percent per annum above the Federal Funds Rate.




     “Base Rate Advance” means a Revolving Credit Advance denominated in Dollars
that bears interest as provided in Section 2.08(a)(i).




     “Borrowing” means a Revolving Credit Borrowing, a Competitive Bid Borrowing or
a Swing Line Borrowing.




     “Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and (a) if the applicable Business Day relates
to any Eurocurrency Rate Advances, Swing Line Advances or LIBO Rate Advances, on which
dealings are carried on in the London interbank market and banks are open for business in
London and (b) if the applicable Business Day relates to any Eurocurrency Rate Advances or
LIBO Rate Advances, in the country of issue of the currency of such Eurocurrency Rate
Advance or LIBO Rate Advance (or, in the case of an Advance denominated in Euro, on which
the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is
open).




     “Commitment” means a Revolving Credit Commitment, a Letter of Credit Commitment
or a Swing Line Commitment.




     “Commitment Date” has the meaning specified in Section 2.19(b).




     “Commitment Increase” has the meaning specified in Section 2.19(a).




     “Committed Currencies” means lawful currency of the United Kingdom of Great
Britain and Northern Ireland, lawful currency of Japan and Euros.




     “Competitive Bid Advance” means an advance by a Lender to the Borrower in
Dollars or any Foreign Currency as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a Fixed Rate Advance
or a LIBO Rate Advance.




     “Competitive Bid Borrowing” means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lenders whose offer to make one or more
Competitive Bid Advances as part of such borrowing has been accepted under the competitive
bidding procedure described in Section 2.03.




     “Competitive Bid Note” means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a Competitive Bid Advance made by
such Lender.




     “Confidential Information” means information that the Borrower furnishes to the
Agent, the Sub-Agent, any Lender or any of their respective agents or representatives, but
does not include any such information that is or becomes generally available to the public
or that is or becomes available to the Agent, the Sub-Agent, such Lender or such agent or
representative from a source other than the Borrower which source, to the knowledge of any
of the foregoing, is not prohibited from disclosing such information by a contractual, legal
or fiduciary obligation.




     “Consenting Lender” has the meaning specified in Section 2.20(b).



3









 






     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




     “Convert”, “Conversion” and “Converted” each refers to a
conversion of Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.09 or 2.10.




     “Covenant Debt” of any Person, means Debt of the types referred to in clauses
(a) though (e) of the definition of “Debt” and all reimbursement obligations in respect of
acceptances, stand-by letters of credit or similar extensions of credit.




     “Debt” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than trade payables not overdue by more than 90 days
incurred in the ordinary course of such Person’s business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of such Person as
lessee under leases that have been or should be, in accordance with GAAP, recorded as
capital leases, (f) all obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all net obligations of
such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses
(a) through (g) above or clause (i) below and other payment obligations guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3)
to supply funds to or in any other manner invest in the debtor (including any agreement to
pay for property or services irrespective of whether such property is received or such
services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt
referred to in clauses (a) through (h) above secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such Debt (it being
understood that the amount of such Debt described in this clause (i) shall be deemed to be
the lesser of the principal amount of such Debt and the value of the property subject to
such Lien).




     “Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.




     “Disclosed Litigation” has the meaning specified in Section 3.01(b).




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




     “Domestic Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or
in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to time specify to
the Borrower and the Agent.




     “EBITDA” means, for any period, net income (or net loss) plus the sum
of (a) net interest expense, (b) income tax expense, (c) depreciation expense, (d)
amortization expense, (e) any items of loss resulting from the sale of assets other than in
the ordinary course of business and (f) any non-cash charges relating to goodwill
impairments, tangible or intangible asset impairments or asset write downs, and
minus any items of gain resulting from the sale of assets other than in the ordinary
course of business, in each case with amounts determined in accordance with GAAP for such
period.



4









 






     “EBITR” means, for any period, net income (or net loss) plus the sum of
(a) net interest expense, (b) income tax expense, (c) rentals payable under leases of real
or personal, or mixed, property, (d) any items of loss resulting from the sale of assets
other than in the ordinary course of business and (e) any non-cash charges relating to
goodwill impairments, tangible or intangible asset impairments or asset write downs, and
minus any items of gain resulting from the sale of assets other than in the ordinary
course of business, in each case with amounts determined in accordance with GAAP for such
period.




     “Effective Date” has the meaning specified in Section 3.01.




     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender and (iii)
any other Person approved by the Agent and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with Section 8.07, the
Borrower, such approval not to be unreasonably withheld or delayed; provided,
however, that none of the Borrower, an Affiliate of the Borrower or any direct
competitor of the Borrower shall qualify as an Eligible Assignee.




     “Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.




     “Environmental Law” means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.




     “Environmental Permit” means any permit, approval, identification number,
license or other authorization required under any Environmental Law.




     “Equivalent” in Dollars of any Foreign Currency on any date means the
equivalent in Dollars of such Foreign Currency determined by using the quoted spot rate at
which the Sub-Agent’s principal office in London offers to exchange Dollars for such Foreign
Currency in London prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms
of this Agreement) on such date as is required pursuant to the terms of this Agreement, and
the “Equivalent” in any Foreign Currency of Dollars means the equivalent in such Foreign
Currency of Dollars determined by using the quoted spot rate at which the Sub-Agent’s
principal office in London offers to exchange such Foreign Currency for Dollars in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms of this Agreement)
on such date as is required pursuant to the terms of this Agreement.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of the Borrower’s controlled group, or under common control with the Borrower, within
the meaning of Section 414 of the Internal Revenue Code.




     “ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13)



5









 







of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days; (b) the application for a minimum funding waiver with respect
to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g)
the adoption of an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, a Plan.




     “Euro” means the lawful currency of the European Union as constituted by the
Treaty of Rome which established the European Community, as such treaty may be amended from
time to time and as referred to in the EMU legislation.




     “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from time to time.




     “Eurocurrency Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule I
hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time specify to the Borrower and
the Agent.




     “Eurocurrency Rate” means, for any Interest Period for each Eurocurrency Rate
Advance comprising part of the same Revolving Credit Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the rate per annum (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum) appearing on Reuters Screen LIBOR01 Page
(or any successor page) as the London interbank offered rate for deposits in Dollars or the
applicable Committed Currency at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in Dollars or the applicable Committed Currency is offered by
the principal office of each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to such Reference Bank’s
Eurocurrency Rate Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to such Interest Period by
(b) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period. If the Reuters Screen LIBOR01 Page (or any successor page) is unavailable,
the Eurocurrency Rate for any Interest Period for each Eurocurrency Rate Advance comprising
part of the same Revolving Credit Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.




     “Eurocurrency Rate Advance” means a Revolving Credit Advance denominated in
Dollars or a Committed Currency that bears interest as provided in Section 2.08(a)(ii).




     “Eurocurrency Rate Reserve Percentage” for any Interest Period for all
Eurocurrency Rate Advances or LIBO Rate Advances comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining



6









 







the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurocurrency Rate Advances or LIBO Rate
Advances is determined) having a term equal to such Interest Period.




     “Events of Default” has the meaning specified in Section 6.01.




     “Executive Officer” means, with respect to any Person, the president, executive
vice president, chief executive officer, chief financial officer, treasurer, controller,
secretary or any person holding comparable offices.




     “Extension Date” has the meaning specified in Section 2.20(b).




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




     “Fixed Rate Advances” has the meaning specified in Section 2.03(a)(i), which
Advances shall be denominated in Dollars or in any Foreign Currency.




     “Foreign Currency” means any Committed Currency and any other lawful currency
(other than Dollars) that is freely transferable or convertible into Dollars.




     “GAAP” has the meaning specified in Section 1.03.




     “Guarantor” means each of The Office Club, Inc. and each other Subsidiary of
the Borrower that shall be required to execute and deliver a guaranty pursuant to Section
5.01(j).




     “Guaranty” has the meaning specified in Section 3.01(h)(ii).




     “Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.




     “Hedge Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or option
contracts and other similar agreements.




     “Increase Date” has the meaning specified in Section 2.19(a).




     “Increasing Lender” has the meaning specified in Section 2.19(b).




     “Information Memorandum” means the information memorandum dated May 8, 2007
used by the Arrangers in connection with the syndication of the Commitments.




     “Initial Issuing Banks” means Wachovia and SunTrust Bank.



7









 






     “Interest Period” means, for each Eurocurrency Rate Advance comprising part of
the same Revolving Credit Borrowing and each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing, the period commencing on the date of such Eurocurrency Rate
Advance or LIBO Rate Advance or the date of the Conversion of any Base Rate Advance into
such Eurocurrency Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to Eurocurrency Rate
Advances, each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Borrower pursuant
to the provisions below. The duration of each such Interest Period shall be one, two, three
or six months, and subject to clause (c) of this definition, nine or twelve months, as the
Borrower may, upon notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period, select;
provided, however, that:




     (a) the Borrower may not select any Interest Period that ends after the final
Termination Date;




     (b) Interest Periods commencing on the same date for Eurocurrency Rate Advances
comprising part of the same Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be of the same duration;




     (c) in the case of any such Revolving Credit Borrowing, the Borrower shall not
be entitled to select an Interest Period having duration of nine or twelve months
unless, by 2:00 P.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, each Lender notifies the Agent that such Lender
will be providing funding for such Revolving Credit Borrowing with such
Interest Period (the failure of any Lender to so respond by such time being deemed
for all purposes of this Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or all of the
Lenders object to the requested duration of such Interest Period, the duration of
the Interest Period for such Revolving Credit Borrowing shall be one, two, three or
six months, as specified by the Borrower in the applicable Notice of Revolving
Credit Borrowing as the desired alternative to an Interest Period of nine or twelve
months;




     (d) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest Period of one month or
longer to occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and




     (e) whenever the first day of any Interest Period of one month or longer occurs
on a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial calendar month by
the number of months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding calendar
month.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “Issuing Bank” means any Initial Issuing Bank or any Eligible Assignee to which
a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section
8.07 so long as such Eligible Assignee expressly agrees to perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its Applicable Lending Office
(which information shall be recorded by the Agent in the Register), for so long as such
Initial Issuing Bank or Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.



8









 






     “L/C Cash Collateral Account” means an interest bearing cash collateral account
to be established and maintained by the Agent, over which the Agent shall have sole dominion
and control, upon terms as may be satisfactory to the Agent.




     “L/C Related Documents” has the meaning specified in Section 2.07(b)(i).




     “Lenders” means the Initial Lenders, each Issuing Bank, each Assuming Lender
that shall become a party hereto pursuant to Section 2.19 or 2.20 and each Person that shall
become a party hereto pursuant to Section 8.07.




     “Letter of Credit Agreement” has the meaning specified in Section 2.04(a).




     “Letter of Credit Commitment” means, with respect to each Initial Issuing Bank,
the amount set forth opposite such Initial Issuing Bank’s name on the signature pages hereto
under the caption “Letter of Credit Commitment” or, if such Initial Issuing Bank has entered
into one or more Assignment and Acceptances, the amount set forth for such Issuing Bank in
the Register maintained by the Agent pursuant to Section 8.07(d) as such Issuing Bank’s
“Letter of Credit Commitment”, as such amount may be reduced at or prior to such time
pursuant to Section 2.06.




     “Letter of Credit Facility” means, at any time, an amount equal to the lesser
of (a) the amount of the Issuing Banks’ Letter of Credit Commitments at such time and (b)
$350,000,000, as such amount may be reduced at or prior to such time pursuant to Section
2.06.




     “Letters of Credit” has the meaning specified in Section 2.01(b).




     “LIBO Rate” means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate per annum equal to
the rate per annum obtained by dividing (a) the rate per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) appearing on Reuters Screen LIBOR01 Page (or
any successor page) as the London interbank offered rate for deposits in Dollars or the
applicable Foreign Currency at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in Dollars or the applicable Foreign Currency is offered by the
principal office of each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to the amount that would be the
Reference Banks’ respective ratable shares of such Borrowing if such Borrowing were to be a
Revolving Credit Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period by (b) a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage for such Interest Period. If the Reuters Screen LIBOR01 Page (or any
successor page) is unavailable, the LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.




     “LIBO Rate Advances” means a Competitive Bid Advance denominated in Dollars or
in any Foreign Currency and bearing interest based on the LIBO Rate.




     “Lien” means any lien, security interest or other charge or encumbrance of any
kind in the nature of the foregoing, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a conditional vendor
and any easement, right of way or other encumbrance on title to real property.



9









 






     “Loan Document” means this Agreement, the Notes, the Guaranties and each Letter
of Credit Agreement.




     “Loan Party” means the Borrower and each Guarantor.




     “Material Adverse Change” means any material adverse change in the business,
condition (financial or otherwise), operations or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole.




     “Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any
Lender under any Loan Document or (c) the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party.




     “Material Subsidiary” means each Subsidiary of the Borrower having assets that
accounted for or produced, or would on a pro forma basis would have produced, more than 10%
of Consolidated EBITR of the Borrower during any of the three most recently completed fiscal
years of the Borrower.




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




     “Multiemployer Plan” means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.




     “Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA
Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.




     “Non-Consenting Lender” has the meaning specified in Section 2.20(b).




     “Note” means a Revolving Credit Note or a Competitive Bid Note.




     “Notice of Competitive Bid Borrowing” has the meaning specified in Section
2.03(a).




     “Notice of Revolving Credit Borrowing” has the meaning specified in Section
2.02(a).




     “Notice of Swing Line Borrowing” has the meaning specified in Section 2.02(b).




     “Payment Office” means, for any payments in Dollars, the office of the Agent in
the United States that it shall designate from time to time to the Borrower and the Lenders
and, for payments in any Foreign Currency, such office of the applicable Agent’s
Correspondent.




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




     “Performance Level” means, as of any date of determination, the numerically
lowest level set forth below as then in effect, as determined in accordance with the
following provisions of this definition:



	 	 	 
	Level 1

	 	The Public Debt Rating is BBB+ or Baa1 or better by S&P or Moody’s,
respectively, or the Applicable Fixed Charge Ratio is 2.75:1.00 or greater;
	 
	 	 
	Level 2

	 	The Public Debt Rating is BBB or Baa2 by S&P or Moody’s, respectively,
or the Applicable Fixed Charge Ratio is 2.25:1.00 or greater but less than
2.75:1.00;






10









 






	 	 	 
	 
	 	 
	Level 3

	 	The Public Debt Rating is BBB- or Baa3 by S&P or Moody’s, respectively,
or the Applicable Fixed Charge Ratio is 2.00:1.00 or greater but less than
2.25:1.00;
	 
	 	 
	Level 4

	 	The Public Debt Rating is BB+ or Ba1 by S&P or Moody’s, respectively,
or the Applicable Fixed Charge Ratio is 1.75:1.00 or greater but less than
2.00:1.00;
	 
	 	 
	Level 5

	 	The Public Debt Rating is lower than BB+ and Ba1 by S&P and Moody’s,
respectively, and the Applicable Fixed Charge Ratio is lower than 1.75:1.00;







provided (a) if any rating established or deemed to have been established by S&P or
Moody’s shall be changed (other than as a result of a change in the rating system of either
of S&P or Moody’s), such change shall be effective as of the date on which such change is
first announced publicly by the rating agency making such change, (b) any change in the
Performance Level based on a change in the Applicable Fixed Charge Ratio shall be effective
for all purposes on and after the date of delivery to the Agent of a certificate of the
Borrower with respect to the financial statements to be delivered, as applicable, pursuant
to Section 5.01(i) for the most recently ended fiscal quarter of the Borrower, (c) if the
Public Debt Ratings by S&P and Moody’s and the Applicable Fixed Charge Ratio shall fall
within different Levels the Applicable Margin, the Facility Fee Percentage and the
Utilization Fee Percentage shall be determined based upon the numerically lower Level (e.g.,
as between Level 1 and Level 2, Level 1 is the numerically lower Level), unless the lower of
such Public Debt Ratings and the Applicable Fixed Charge Ratio is more than one Level lower
than the higher of such Levels, in which case the Applicable Margin, the Facility Fee
Percentage and the Utilization Fee Percentage shall be determined based upon the Level that
is one Level above the lower Level and (d) notwithstanding the foregoing provisions of
clause (b), no increase in the Performance Level shall be effective if any Default shall
have occurred and be continuing.




     “Permitted Liens” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to the extent not required to be
paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s,
mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in
the ordinary course of business (other than those being contested in good faith by
appropriate proceedings and properly reserved in accordance with generally accepted
accounting principles); (c) pledges or deposits to secure obligations under workers’
compensation laws or similar legislation or to secure public or statutory obligations; and
(d) easements, rights of way and other encumbrances on title to real property that do not
render title to the property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.




     “Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision or agency
thereof.




     “Plan” means a Single Employer Plan or a Multiple Employer Plan.




     “Pro Rata Share” of any amount means, with respect to any Lender at any time,
the product of such amount times a fraction the numerator of which is the amount of
such Lender’s Tranche A Commitment at such time (or, if the Tranche A Commitments shall have
been terminated pursuant to Section 2.06 or 6.01, such Lender’s Tranche A Commitment as in
effect immediately prior to such termination) and the denominator of which is the aggregate
amount of all Tranche A Commitments at such time (or, if the Tranche A Commitments shall
have been terminated pursuant to Section 2.06 or 6.01, the aggregate amount of all Tranche A
Commitments as in effect immediately prior to such termination).




     “Public Debt Rating” means, as of any date, the rating that has been most
recently announced by either S&P or Moody’s, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower or, if either such rating
agency shall have issued more than one such rating, the lowest such rating issued by such
rating agency. For purposes of the foregoing, (a) if only one



11









 







of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee shall be determined by
reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee will be set in accordance with Level 5 under the definition of
“Applicable Margin”, “Applicable Percentage” or “Applicable Utilization
Fee”, as the case may be; (c) if the ratings established by S&P and Moody’s shall fall
within different levels, the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher rating unless the differential is two levels
or more, in which case the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the level that is one level lower than the higher
rating; (d) if any rating established by S&P or Moody’s shall be changed, such change shall
be effective as of the date on which such change is first announced publicly by the rating
agency making such change; and (e) if S&P or Moody’s shall change the basis on which ratings
are established, each reference to the Public Debt Rating announced by S&P or Moody’s, as
the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case
may be.




     “Reference Banks” means Wachovia and Citicorp USA, Inc.




     “Register” has the meaning specified in Section 8.07(d).




     “Required Lenders” means at any time Lenders (voting as one class, i.e., by
combining the Tranche A Commitments and the Tranche B Commitments) having at least a
majority in interest of the Revolving Credit Commitments at such time, provided that if any
Lender shall have failed to make any Revolving Credit Advance to the Borrower pursuant to
Section 2.01 or 2.02, which such Lender was obligated to make, at or prior to such time (and
as to which the Agent shall not have made such Advance for the account of such Lender
pursuant to Section 2.02(d) as of such time), there shall be excluded from the determination
of Required Lenders at such time the Revolving Credit Commitments of such Lender at such
time.




     “Revolving Credit Advance” means a Tranche A Advance or a Tranche B Advance.




     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lenders pursuant to Section
2.01.




     “Revolving Credit Borrowing Minimum” means, in respect of Revolving Credit
Advances denominated in Dollars, $3,000,000, in respect of Revolving Credit Advances
denominated in Sterling, £3,000,000, in respect of Revolving Credit Advances denominated in
Yen, ¥300,000,000 and, in respect of Revolving Credit Advances denominated in Euros,
€3,000,000.




     “Revolving Credit Borrowing Multiple” means, in respect of Revolving Credit
Advances denominated in Dollars, $500,000, in respect of Revolving Credit Advances
denominated in Sterling, £500,000, in respect of Revolving Credit Advances denominated in
Yen, ¥50,000,000 and, in respect of Revolving Credit Advances denominated in Euros,
€500,000.




     “Revolving Credit Commitment” means a Tranche A Commitment or a Tranche B
Commitment.




     “Revolving Credit Note” means a promissory note of the Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section 2.17 in
substantially the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances made by such Lender.




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




     “Single Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA
Affiliate and no Person other



12









 







than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA
in the event such plan has been or were to be terminated.




     “Solvent” and “Solvency” mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Person’s ability
to pay such debts and liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a transaction, for
which such Person’s property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all
the facts and circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.




     “Sub-Agent” means Wachovia Bank, National Association, London Branch.




     “Subordinated Debt” means Debt of the Borrower and/or its Subsidiaries
subordinated to all obligations of the Borrower and/or its Subsidiaries arising under the
Loan Documents on terms and conditions satisfactory in all respects to the Agent and the
Required Lenders, including without limitation, with respect to interest rates, payment
terms, maturities, amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Agent and Required Lenders.




     “Subsidiary” of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.




     “Swing Line Advance” means an advance made by any Swing Line Bank pursuant to
Section 2.01(d) or any Lender pursuant to Section 2.02(b).




     “Swing Line Bank” means Citicorp USA, Inc., Wachovia and their respective
successors and assigns.




     “Swing Line Borrowing” means a borrowing consisting of a Swing Line Advance
made by any Swing Line Bank.




     “Swing Line Commitment” means with respect to any Swing Line Bank at any time
the amount set forth opposite such Swing Line Bank’s name on Schedule I hereto, as such
amount may be reduced pursuant to Section 2.06.




     “Swing Line Facility” has the meaning specified in Section 2.01(d).




     “Swing Line LIBO Rate” means, for any Swing Line Borrowing, an interest rate
per annum equal to the rate per annum (rounded upward to the nearest whole multiple of 1/16
of 1% per annum) appearing on Reuters Screen LIBOR01 Page (or any successor page) as the
London interbank offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the date of such Swing Line Borrowing for a term of
one week or, if for any reason such rate is not available, the average



13









 






(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Swing Line Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days before the date of
such Swing Line Borrowing in an amount substantially equal to such Swing Line Bank’s Swing
Line Advance comprising part of the applicable Swing Line Borrowing and for a period equal
to one week.




     “Swing Line Rate” with respect to any Swing Line Borrowing, means the lower of
(a) the Base Rate and (b) a rate per annum equal at all times to the sum of (x) the Swing
Line LIBO Rate for such Swing Line Advance plus (y) the Applicable Margin for
Eurodollar Rate Advances in effect from time to time plus (z) the Applicable
Utilization Fee, if any, in effect from time to time.




     “Termination Date” means the earlier of (a) May 25, 2012, subject to the
extension thereof pursuant to Section 2.20 and (b) the date of termination in whole of the
Commitments pursuant to Section 2.06 or 6.01; provided, however, that the
Termination Date of any Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.20 shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.




     “Tranche A Advance” means an advance by a Tranche A Lender to the Borrower as
part of a Tranche A Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate
Advance (each of which shall be a “Type” of Revolving Credit Advance).




     “Tranche A Commitment” means, with respect to any Lender at any time (a) the
amount set forth opposite such Lender’s name on the signature pages hereto under the caption
“Tranche A Commitment”, (b) if such Lender has become a Lender hereunder pursuant to an
Assumption Agreement, the amount set forth in such Assumption Agreement or (c) if such
Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in
the Register maintained by the Agent pursuant to Section 8.07(d) as such Lender’s “Tranche A
Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.06
or increased pursuant to Section 2.19.




     “Tranche A Lender” means each Lender that has a Tranche A Commitment on the
signature pages hereof or any Eligible Assignee to which a portion of the Tranche A
Commitment hereunder has been assigned pursuant to Section 8.07.




     “Tranche B Advance” means an advance by a Tranche B Lender to the Borrower as
part of a Tranche B Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate
Advance (each of which shall be a “Type” of Revolving Credit Advance).




     “Tranche B Commitment” means, with respect to any Lender at any time, the
amount set forth opposite such Lender’s name on the signature pages hereto under the caption
“Tranche B Commitment” or, if such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(d) as such Lender’s “Tranche B Commitment”, as such amount may be reduced at or
prior to such time pursuant to Section 2.06.




     “Tranche B Lender” means each Lender that has a Tranche B Commitment on the
signature pages hereof or any Eligible Assignee to which a portion of the Tranche B
Commitment hereunder has been assigned pursuant to Section 8.07.




     “Unused Commitment” means, with respect to each Tranche A Lender at any time,
(a) such Lender’s Tranche A Commitment at such time minus (b) the sum of (i) the
aggregate principal amount (based in respect of any Tranche A Advance denominated in a
Committed Currency by reference to the Equivalent thereof in Dollars at such time) of all
Tranche A Advances made by such Lender (in its capacity as a Lender) and outstanding at such
time, plus (ii) such Lender’s Pro Rata Share of (A) the aggregate Available Amount
of all the Letters of Credit outstanding at such time, (B) the aggregate principal amount



14









 







of all Tranche A Advances made by each Issuing Bank pursuant to Section 2.04(c) that
have not been ratably funded by the Lenders and outstanding at such time, (C) the aggregate
principal amount (based in respect of any Competitive Bid Advance denominated in a Foreign
Currency by reference to the Equivalent thereof in Dollars at such time) of Competitive Bid
Advances then outstanding and (D) the aggregate principal amount of all Swing Line Advances
then outstanding.




     “Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.



          SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.




          SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with accounting principles generally accepted in the United States
of America consistent with those applied in the preparation of the financial statements referred to
in Section 4.01(e) (“GAAP”).




ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT




          SECTION 2.01. The Revolving Credit Advances, Swing Line Advances and Letters of
Credit. (a) Tranche A Advances. Each Tranche A Lender severally agrees, on the terms
and conditions hereinafter set forth, to make Tranche A Advances denominated in Dollars or any
Committed Currency to the Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date applicable to such Lender in an aggregate amount (based
on the Equivalent thereof in Dollars determined on the date of delivery of the applicable Notice of
Revolving Credit Borrowing) not to exceed at any time such Lender’s Unused Commitment. Each
Tranche A Borrowing shall be in an amount not less than the Revolving Credit Borrowing Minimum or
the Revolving Credit Borrowing Multiple in excess thereof and shall consist of Tranche A Advances
of the same Type and in the same currency made on the same day by the Tranche A Lenders ratably
according to their respective Tranche A Commitments. Within the limits of each Lender’s Tranche A
Commitment, the Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.11 and
reborrow under this Section 2.01(a).




          (b) Letters of Credit. Each Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue standby, commercial and documentary letters of credit (each, a
“Letter of Credit”) for the account of the Borrower from time to time on any Business Day
during the period from the Effective Date until 30 days before the final Termination Date in an
aggregate Available Amount (converting all non-Dollar amount into the Equivalent amount in Dollars
at such time) (i) for all Letters of Credit issued by the Issuing Banks not to exceed at any time
the lesser of (x) the Letter of Credit Facility at such time and (y) such Issuing Bank’s Letter of
Credit Commitment at such time and (ii) for each such Letter of Credit not to exceed an amount
equal to the Unused Commitments of the Tranche A Lenders at such time. No Letter of Credit shall
have an expiration date (including all rights of the Borrower or the beneficiary to require
renewal) later than 10 Business Days before the Termination Date, provided that no Letter
of Credit may expire after the Termination Date of any Non-Consenting Lender if, after giving
effect to such issuance, the aggregate Revolving Credit Commitments of the Consenting Lenders
(including any replacement Lenders) for the period following such Termination Date would be less
than the Available Amount of the Letters of Credit expiring after such Termination Date. Within
the limits referred to above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(b), repay any Tranche A Advances resulting from drawings thereunder pursuant to
Section 2.04(c) and request the issuance of additional Letters of Credit under this Section
2.01(b).




          (c) Tranche B Advances. Each Tranche B Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Tranche B Advances denominated in Dollars or a Committed
Currency to the Borrower from time to time on any Business Day during the period from the Effective
Date until the


15









 







Termination Date applicable to such Lender in an aggregate amount (based on the Equivalent
thereof in Dollars determined on the date of delivery of the applicable Notice of Revolving Credit
Borrowing) not to exceed at any time such Lender’s unused Tranche B Commitment. Each Tranche B
Borrowing shall be in an amount not less than the Revolving Credit Borrowing Minimum or the
Revolving Credit Borrowing Multiple in excess thereof and shall consist of Tranche B Advances of
the same Type and in the same currency made on the same day by the Tranche B Lenders ratably
according to their respective Tranche B Commitments. Within the limits of each Lender’s Tranche B
Commitment, the Borrower may borrow under this Section 2.01(c), prepay pursuant to Section 2.11 and
reborrow under this Section 2.01(c).




          (d) The Swing Line Advances. Each Swing Line Bank severally agrees, on the terms and
conditions hereinafter set forth, to make Swing Line Advances denominated in Dollars to the
Borrower from time to time on any Business Day during the period from the Effective Date until the
Termination Date applicable to such Swing Line Bank (i) in an aggregate amount for all Swing Line
Advances not to exceed at any time outstanding $150,000,000 (the “Swing Line Facility”),
(ii) in an aggregate amount for Swing Line Advances made by such Swing Line Bank not to exceed such
Swing Line Bank’s Swing Line Commitment and (iii) in an amount for each such Advance not to exceed
the aggregate Unused Commitments of the Tranche A Lenders at such time. No Swing Line Advance
shall be used for the purpose of funding the payment of principal of any other Swing Line Advance.
Each Swing Line Borrowing shall be in an amount of $1,000,000 or an integral multiple of $1,000,000
in excess thereof. Within the limits referred to above, the Borrower may borrow under this Section
2.01(d),re pay or prepay pursuant to Section 2.02(a) or 2.11 and reborrow under this Section
2.01(d).




          SECTION 2.02. Making the Revolving Credit Advances and Swing Line Advances. (a)
Except as otherwise provided in Section 2.02(b) or Section 2.04(c), each Revolving Credit Borrowing
shall be made on notice, given not later than (x) 12:00 noon (New York City time) on the third
Business Day prior to the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y)
4:00 P.M. (London time) on the fourth Business Day prior to the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
Advances denominated in any Committed Currency, or (z) 12:00 noon (New York City time) on the date
of the proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing consisting
of Base Rate Advances, by the Borrower to the Agent (and, in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, simultaneously to the Sub-Agent), which shall
give to each Lender prompt notice thereof by telecopier. Each such notice of a Revolving Credit
Borrowing (a “Notice of Revolving Credit Borrowing”) shall be by telephone, confirmed
promptly in writing, or telecopier in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit Borrowing, (ii) whether such Revolving
Credit Borrowing consists of Tranche A Advances or Tranche B Advances, (iii) Type of Advances
comprising such Revolving Credit Borrowing, (iv) aggregate amount of such Revolving Credit
Borrowing and (iv) in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
Advances, initial Interest Period and currency for each such Advance. Each Lender shall, before
1:00 P.M. (New York City time) on the date of such Revolving Credit Borrowing, in the case of a
Revolving Credit Borrowing consisting of Advances denominated in Dollars, and before 11:00 A.M.
(London time) on the date of such Revolving Credit Borrowing, in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in any Committed Currency, make
available for the account of its Applicable Lending Office to the Agent at the applicable Agent’s
Account, in same day funds, such Lender’s ratable portion of such Revolving Credit Borrowing.
After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth
in Article III, the Agent will make such funds available to the Borrower at the Agent’s address
referred to in Section 8.02 or at the applicable Payment Office, as the case may be;
provided, however, that the Agent shall first make a portion of such funds in
respect of any Tranche A Advances equal to the aggregate principal amount of any Swing Line
Advances made by the Swing Line Banks and by any other Lender and outstanding on the date of such
Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and as of such date,
available to the Swing Line Banks and such other Lenders for repayment of such Swing Line Advances.




          (b) Each Swing Line Borrowing shall be made on notice, given not later than 2:00 P.M. (New
York City time) on the date of the proposed Swing Line Borrowing by the Borrower to any Swing Line
Bank and the Agent, of which the Agent shall give prompt notice to the Tranche A Lenders. Each
such notice of a Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by
telephone, confirmed at once in writing, or telecopier in substantially the form of Exhibit B-3
hereto, specifying therein the requested (i) date of such


16









 







Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the tenth day after the requested date of such Borrowing). The requested
Swing Line Bank shall, before 4:00 P.M. (New York City time) on the date of such Swing Line
Borrowing, make such Swing Line Borrowing to the Agent at the Agent’s Account, in same day funds.
After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth
in Article III, the Agent will make such funds available to the Borrower at the Borrower’s account
as specified in writing by the Borrower. Upon written demand by any Swing Line Bank with a Swing
Line Advance, with a copy of such demand to the Agent, each Tranche A Lender will purchase from
such Swing Line Bank, and such Swing Line Bank shall sell and assign to each such Tranche A Lender,
such Tranche A Lender’s Pro Rata Share of such outstanding Swing Line Advance, by making available
for the account of its Applicable Lending Office to the Agent for the account of such Swing Line
Bank, by deposit to the Agent’s Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Swing Line Advance to be purchased by such Tranche A Lender;
provided that upon such sale and assignment the Swing Line Rate shall be determined by
reference to clause (a) of the definition of “Swing Line Rate”. The Borrower hereby agrees to each
such sale and assignment. Each Tranche A Lender agrees to purchase its Pro Rata Share of an
outstanding Swing Line Advance on (i) the Business Day on which demand therefor is made by the
Swing Line Bank which made such Advance, provided that notice of such demand is given not later
than 11:00 A.M. (New York City time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon any such assignment
by Swing Line Bank to any other Tranche A Lender of a portion of a Swing Line Advance, such Swing
Line Bank represents and warrants to such other Tranche A Lender that such Swing Line Bank is the
legal and beneficial owner of such interest being assigned by it free and clear of liens, claims
and encumbrances, but makes no other representation or warranty and assumes no responsibility with
respect to such Swing Line Advance, this Agreement, the Notes or the Borrower. If and to the
extent that any Tranche A Lender shall not have so made the amount of such Swing Line Advance
available to the Agent, such Tranche A Lender agrees to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date such Lender is required to have
made such amount available to the Agent until the date such amount is paid to the Agent, at the
Federal Funds Rate. If such Tranche A Lender shall pay to the Agent such amount for the account of
such Swing Line Bank on any Business Day, such amount so paid in respect of principal shall
constitute a
 Swing Line Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line Advance made by such Swing Line
Bank shall be reduced by such amount on such Business Day.




          (c) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurocurrency Rate Advances for any Revolving Credit Borrowing if the aggregate amount of
such Revolving Credit Borrowing is less than the Revolving Credit Borrowing Minimum or if the
obligation of the Lenders to make Eurocurrency Rate Advances shall then be suspended pursuant to
Section 2.09 or 2.13 and (ii) the Eurocurrency Rate Advances may not be outstanding as part of more
than sixteen separate Revolving Credit Borrowings.




          (d) Each Notice of Revolving Credit Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurocurrency Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Revolving Credit Borrowing for
such Revolving Credit Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to
fund the Revolving Credit Advance to be made by such Lender as part of such Revolving Credit
Borrowing when such Revolving Credit Advance, as a result of such failure, is not made on such
date.




          (e) Unless the Agent shall have received notice from a Lender or a Swing Line Bank prior to
the time of any Revolving Credit Borrowing or Swing Line Borrowing, as the case may be, that such
Lender or Swing Line Bank will not make available to the Agent such Lender’s or Swing Line Bank’s
ratable portion of such Revolving Credit Borrowing or Swing Line Borrowing, as the case may be, the
Agent may assume that such Lender or Swing Line Bank has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) or (b) of this Section 2.02, as
applicable, and the Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender or Swing Line Bank shall
not have so made such ratable portion available to the Agent, such Lender and the Borrower
severally


17









 







agree to repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to the Advances comprising such Borrowing and (ii) in the case of such
Lender or Swing Line Bank, the Federal Funds Rate. If such Lender or Swing Line Bank shall repay
to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s or
Swing Line Bank’s Advance as part of such Borrowing for purposes of this Agreement.




          (f) The failure of any Lender to make the Revolving Credit Advance to be made by it as part of
any Revolving Credit Borrowing or to purchase its Pro Rata Share of any Swing Line Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing or to purchase its Pro Rata Share of any
Swing Line Borrowing as provided in subsection (b) of this Section 2.02, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit Advance to be made by
such other Lender on the date of any Revolving Credit Borrowing or to purchase its Pro Rata Share
of any Swing Line Borrowing as provided in subsection (b) of this Section 2.02.




          SECTION 2.03. The Competitive Bid Advances. (a) Each Tranche A Lender severally
agrees that the Borrower may make Competitive Bid Borrowings under this Section 2.03 from time to
time on any Business Day during the period from the date hereof until the date occurring 30 days
prior to the final Termination Date in the manner set forth below; provided that the
aggregate amount of the Competitive Bid Advances made at any time shall not exceed the Unused
Commitments.





     (i) The Borrower may request a Competitive Bid Borrowing under this Section 2.03 by
delivering to the Agent (and, in the case of a Competitive Bid Borrowing not consisting of
Fixed Rate Advances or LIBO Rate Advances to be denominated in Dollars, simultaneously to
the Sub-Agent), by telecopier, a notice of a Competitive Bid Borrowing (a “Notice of
Competitive Bid Borrowing”), in substantially the form of Exhibit B-2 hereto, specifying
therein the requested (A) date of such proposed Competitive Bid Borrowing, (B) aggregate
amount of such proposed Competitive Bid Borrowing, (C) interest rate basis and day count
convention to be offered by the Tranche A Lenders, (D) currency of such proposed Competitive
Bid Borrowing, (E) in the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, Interest Period, or in the case of a Competitive Bid Borrowing consisting of Fixed
Rate Advances, maturity date for repayment of each Fixed Rate Advance to be made as part of
such Competitive Bid Borrowing (which maturity date may not be earlier than the date
occurring 7 days after the date of such Competitive Bid Borrowing or later than the earlier
of (I) in the case of Fixed Rate Advances, 180 days and, in the case of LIBO Rate Advances,
one, two three, six or nine months, after the date of such Competitive Bid Borrowing and
(II) the final Termination Date), (F) interest payment date or dates relating thereto, (G)
location of the Borrower’s account to which funds are to be advanced and (H) other terms (if
any) to be applicable to such Competitive Bid Borrowing, not later than (1) 12:00 noon (New
York City time) at least one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive Bid Borrowing that the
rates of interest to be offered by the Tranche A Lenders shall be fixed rates per annum (the
Advances comprising any such Competitive Bid Borrowing being referred to herein as
“Fixed Rate Advances”) and that the Advances comprising such proposed Competitive
Bid Borrowing shall be denominated in Dollars, (2) 10:00 A.M. (New York City time) at least
four Business Days prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that the Advances
comprising such Competitive Bid Borrowing shall be LIBO Rate Advances denominated in
Dollars, (3) 10:00 A.M. (London time) at least two Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such proposed Competitive Bid
Borrowing shall be Fixed Rate Advances denominated in Sterling or Euro, (4) 10:00 A.M.
(London time) at least three Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive Bid Borrowing that the
Advances comprising such proposed Competitive Bid Borrowing shall be Fixed Rate Advances
denominated in any Foreign Currency other than Sterling or Euro and (5) 10:00 A.M. (London
time) at least four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of Competitive Bid Borrowing
that the Advances comprising such Competitive Bid Borrowing shall



18









 







be LIBO Rate Advances denominated in any Foreign Currency. Each Notice of Competitive
Bid Borrowing shall be irrevocable and binding on the Borrower. The Agent or the Sub-Agent,
as the case may be, shall in turn promptly notify each Tranche A Lender of each request for
a Competitive Bid Borrowing received by it from the Borrower by sending such Lender a copy
of the related Notice of Competitive Bid Borrowing.




     (ii) Each Tranche A Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the Borrower as part of
such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent or the Sub-Agent, as the case may be
(which shall give prompt notice thereof to the Borrower), (A) before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 11:00 A.M. (New York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances, denominated in Dollars, (C) before 12:00 noon (London time) on the Business
Day prior to the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances denominated in Sterling or
Euros, (D) before 12:00 noon (London time) on the third Business Day prior to the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in any Foreign Currency other than Sterling or
Euro and (E) before 12:00 noon (London time) on the third Business Day prior to the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances denominated in any Foreign Currency, of the minimum amount
and maximum amount of each Competitive Bid Advance which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing (which amounts or the Equivalent
thereof in Dollars, as the case may be, of such proposed Competitive Bid Borrowing may,
subject to the proviso to the first sentence of this Section 2.03(a), exceed such Lender’s
Tranche A Commitment), the rate or rates of interest therefor and such Lender’s Applicable
Lending Office with respect to such Competitive Bid Advance; provided that if the
Agent in its capacity as a Tranche A Lender shall, in its sole discretion, elect to make any
such offer, it shall notify the Borrower of such offer at least 30 minutes before the time
and on the date on which notice of such election is to be given to the Agent or to the
Sub-Agent, as the case may be, by the other Tranche A Lenders. If any Tranche A Lender
shall elect not to make such an offer, such Lender shall so notify the Agent before 11:00
A.M. (New York City time) or the Sub-Agent before 12:00 noon (London time) on the date on
which notice of such election is to be given to the Agent or to the Sub-Agent, as the case
may be, by the other Tranche A Lenders, and such Tranche A Lender shall not be obligated to,
and shall not, make any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Tranche A Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.




     (iii) The Borrower shall, in turn, (A) before 11:30 A.M. (New York City time) on the
date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in Dollars, (B) before 12:00 noon (New York
City time) three Business Days before the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances denominated in
Dollars, (C) before 3:00 P.M. (London time) on the Business Day prior to the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances denominated in Sterling or Euro, (D) before 3:00 P.M. (London time) on
the third Business Day prior to the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances denominated in any
Foreign Currency other than Sterling or Euro and (E) before 3:00 P.M. (London time) on the
third Business Day prior to the date of such Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances denominated in any Foreign
Currency, either:




     (x) cancel such Competitive Bid Borrowing by giving the Agent notice to that
effect, or



19









 






     (y) accept one or more of the offers made by any Tranche A Lender or Lenders
pursuant to paragraph (ii) above, in its sole discretion, by giving notice to the
Agent of the amount of each Competitive Bid Advance (which amount shall be equal to
or greater than the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Agent on behalf of such Lender for such Competitive
Bid Advance pursuant to paragraph (ii) above) to be made by each Tranche A Lender as
part of such Competitive Bid Borrowing, and reject any remaining offers made by
Tranche A Lenders pursuant to paragraph (ii) above by giving the Agent notice to
that effect. The Borrower shall accept the offers made by any Tranche A Lender or
Lenders to make Competitive Bid Advances in order of the lowest to the highest rates
of interest offered by such Lenders. If two or more Tranche A Lenders have offered
the same interest rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that each such Lender
offered at such interest rate.




     (iv) If the Borrower notifies the Agent that such Competitive Bid Borrowing is
cancelled pursuant to paragraph (iii)(x) above, the Agent shall give prompt notice thereof
to the Tranche A Lenders and such Competitive Bid Borrowing shall not be made.




     (v) If the Borrower accepts one or more of the offers made by any Tranche A Lender or
Lenders pursuant to paragraph (iii)(y) above, the Agent or the Sub-Agent, as the case may
be, shall in turn promptly notify (A) each Tranche A Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender pursuant to paragraph
(ii) above have been accepted by the Borrower, (B) each Tranche A Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of the amount of each
Competitive Bid Advance to be made by such Lender as part of such Competitive Bid Borrowing,
and (C) each Tranche A Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Agent or the Sub-Agent, as the case may
be, has received forms of documents appearing to fulfill the applicable conditions set forth
in Article III. Each Tranche A Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing shall, before 1:00 P.M. (New York City time), in the case of
Competitive Bid Advances to be denominated in Dollars or 11:00 A.M. (London time), in the
case of Competitive Bid Advances to be denominated in any Foreign Currency, on the date of
such Competitive Bid Borrowing specified in the notice received from the Agent or the
Sub-Agent, as the case may be, pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent or the Sub-Agent, as the
case may be pursuant to clause (C) of the preceding sentence, make available for the account
of its Applicable Lending Office to the Agent (x) in the case of a Competitive Bid Borrowing
denominated in Dollars, at its address referred to in Section 8.02, in same day funds, such
Lender’s portion of such Competitive Bid Borrowing in Dollars and (y) in the case of a
Competitive Bid Borrowing in a Foreign Currency, at the Payment Office for such Foreign
Currency as shall have been notified by the Agent to the Tranche A Lenders prior thereto, in
same day funds, such Lender’s portion of such Competitive Bid Borrowing in such Foreign
Currency. Upon fulfillment of the applicable conditions set forth in Article III and after
receipt by the Agent of such funds, the Agent will make such funds available to the Borrower
at the location specified by the Borrower in its Notice of Competitive Bid Borrowing.
Promptly after each Competitive Bid Borrowing the Agent will notify each Tranche A Lender of
the amount and tenor of the Competitive Bid Borrowing.




     (vi) If the Borrower notifies the Agent that it accepts one or more of the offers made
by any Tranche A Lender or Lenders pursuant to paragraph (iii)(y) above, such notice of
acceptance shall be irrevocable and binding on the Borrower. The Borrower shall indemnify
each Tranche A Lender against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund the Competitive Bid Advance to be made by
such Lender as



20









 







part of such Competitive Bid Borrowing when such Competitive Bid Advance, as a result
of such failure, is not made on such date.



          (b) Each Competitive Bid Borrowing shall be in an aggregate amount of $5,000,000 (or the
Equivalent thereof in any Foreign Currency, determined as of the time of the applicable Notice of
Competitive Bid Borrowing) or an integral multiple of $1,000,000 (or the Equivalent thereof in any
Foreign Currency, determined as of the time of the applicable Notice of Competitive Bid Borrowing)
in excess thereof and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the first sentence of subsection
(a) above.




          (c) Within the limits and on the conditions set forth in this Section 2.03, the Borrower may
from time to time borrow under this Section 2.03, repay or prepay pursuant to subsection (d) below,
and reborrow under this Section 2.03, provided that a Competitive Bid Borrowing shall not
be made within three Business Days of the date of any other Competitive Bid Borrowing.




          (d) The Borrower shall repay to the Agent for the account of each Tranche A Lender that has
made a Competitive Bid Advance, on the maturity date of each Competitive Bid Advance (such maturity
date being that specified by the Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance), the then unpaid
principal amount of such Competitive Bid Advance. The Borrower shall have no right to prepay any
principal amount of any Competitive Bid Advance unless, and then only on the terms, specified by
the Borrower for such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive Bid Note evidencing
such Competitive Bid Advance.




          (e) The Borrower shall pay interest on the unpaid principal amount of each Competitive Bid
Advance from the date of such Competitive Bid Advance to the date the principal amount of such
Competitive Bid Advance is repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Tranche A Lender making such Competitive Bid Advance in its notice with respect
thereto delivered pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, as provided in the
Competitive Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing to a Tranche A
Lender, payable in arrears on the date or dates interest is payable thereon, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid on such Competitive
Bid Advance under the terms of the Competitive Bid Note evidencing such Competitive Bid Advance
unless otherwise agreed in such Competitive Bid Note.




          (f) The indebtedness of the Borrower resulting from each Competitive Bid Advance made to the
Borrower as part of a Competitive Bid Borrowing shall be evidenced by a separate Competitive Bid
Note of the Borrower payable to the order of the Tranche A Lender making such Competitive Bid
Advance.




          SECTION 2.04. Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a) Request for Issuance. (i) Each Letter of Credit shall be issued upon notice, given
not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the
proposed issuance of such Letter of Credit, by the Borrower to any Issuing Bank, and such Issuing
Bank shall give the Agent, prompt notice thereof by telecopier. Each such notice of issuance of a
Letter of Credit (a “Notice of Issuance”) shall be by telecopier, confirmed immediately in
writing, specifying therein the requested (A) date of such issuance (which shall be a Business
Day), (B) Available Amount and currency (which shall be a Committed Currency) of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of the beneficiary of
such Letter of Credit and (E) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as such Issuing Bank may reasonably specify to the
Borrower for use in connection with such requested Letter of Credit (a “Letter of Credit
Agreement”). If the requested form (but not the terms) of such Letter of Credit is acceptable
to such Issuing Bank in its sole discretion, such Issuing Bank will, unless such Issuing Bank has
received written notice from any Lender, the Agent or the Borrower, at least one Business Day prior
to the requested date of


21









 







issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article III shall
not be satisfied, upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the event and to the
extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.




          (b) 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
applicable Issuing Bank or the Tranche A Lenders, such Issuing Bank hereby grants to each Tranche A
Lender, and each Tranche A Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit. The Borrower hereby agrees to each such participation. In
consideration and in furtherance of the foregoing, each Tranche A Lender hereby absolutely and
unconditionally agrees to pay to the Agent, for the account of such Issuing Bank, such Lender’s Pro
Rata Share of each drawing made under a Letter of Credit funded by such Issuing Bank and not
reimbursed by the Borrower on the date made, or of any reimbursement payment required to be
refunded to the Borrower for any reason. Each Tranche A 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 Tranche A Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each Tranche A Lender
further acknowledges and agrees that its participation in each Letter of Credit will be
automatically adjusted to reflect such Lender’s Pro Rata Share of the Available Amount of such
Letter of Credit at each time such Lender’s Tranche A Commitment is amended pursuant to Section
2.19, pursuant to an assignment in accordance with Section 8.07 or otherwise pursuant to this
Agreement.




          (c) Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn under
any Letter of Credit shall constitute for all purposes of this Agreement the making by any such
Issuing Bank of a Tranche A Advance, which, in the case of a Letter of Credit denominated in
Dollars, shall be a Base Rate Advance, in the amount of such draft or, in the case of a Letter of
Credit denominated in a Committed Currency, shall be a Base Rate Advance in the Equivalent in
Dollars on the date such draft is paid. Upon written demand by such Issuing Bank, with a copy of
such demand to the Agent, each Tranche A Lender shall pay to the Agent such Lender’s Pro Rata Share
of such outstanding Tranche A Advance, by making available for the account of its Applicable
Lending Office to the Agent for the account of such Issuing Bank, by deposit to the Agent’s
Account, in same day funds, an amount equal to the portion of the outstanding principal amount of
such Tranche A Advance to be funded by such Lender. Promptly after receipt thereof, the Agent
shall transfer such funds to such Issuing Bank. Each Tranche A Lender agrees to fund its Pro Rata
Share of an outstanding Tranche A Advance on (i) the Business Day on which demand therefor is made
by such Issuing Bank, provided that notice of such demand is given not later than 11:00
A.M. (New York City time) on such Business Day, or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. If and to the extent that any Tranche A
Lender shall not have so made the amount of such Tranche A Advance available to the Agent, such
Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by any such Issuing Bank until the date such amount is paid to
the Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as
applicable. If such Tranche A Lender shall pay to the Agent such amount for the account of any
such Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute
a Tranche A Advance made by such Lender on such Business Day for purposes of this Agreement, and
the outstanding principal amount of the Tranche A Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.




          (d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the Agent on the
first Business Day of each week a written report summarizing issuance and expiration dates of
Letters of Credit issued during the previous week and drawings during such week under all Letters
of Credit, (B) to each Tranche A Lender on the date of each issuance of a Letter of Credit or a
drawing thereunder, notice of such issuance or drawing, (C) to the Agent and each Tranche A Lender
on the first Business Day of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters of Credit and (D)
to the Borrower on the first Business Day of each fiscal quarter a written report summarizing the
issuance and expiration dates of Letters of Credit issued during the previous fiscal quarter,
drawings during such fiscal quarter under all Letters of Credit.




22









 








          (e) Failure to Make Revolving Credit Advances. The failure of any Tranche A Lender to
make the Revolving Credit Advance to be made by it on the date specified in Section 2.04(c) shall
not relieve any other Tranche A Lender of its obligation hereunder to make its Revolving Credit
Advance on such date, but no Tranche A Lender shall be responsible for the failure of any other
Tranche A Lender to make the Revolving Credit Advance to be made by such other Tranche A Lender on
such date.




          SECTION 2.05. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of such Lender’s
Revolving Credit Commitment(s) from the Effective Date in the case of each Initial Lender and from
the effective date specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the Termination Date applicable
to such Lender at a rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and December,
commencing June 30, 2007, and on the final Termination Date.




          (b) Letter of Credit Fees. The Borrower shall pay to the Agent for the account of
each Tranche A Lender a commission on such Lender’s Pro Rata Share of the average daily aggregate
Available Amount of all Letters of Credit outstanding from time to time at a rate per annum equal
to the Applicable Margin for Eurocurrency Rate Advances in effect from time to time plus the
Applicable Utilization Fee, if any, payable in arrears quarterly on the fifth Business Day of
January, April, July and October, commencing in July, 2007, and on the final Termination Date.




          (c) Agent’s Fees. The Borrower shall pay to the Agent for its own account such fees
as may from time to time be agreed between the Borrower and the Agent.




          SECTION 2.06. Optional Termination or Reduction of the Commitments. The Borrower
shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole
or permanently reduce ratably in part the respective Unused Commitments, unused Tranche B
Commitments or Letter of Credit Commitments of the Lenders, provided that (x) each partial
reduction shall be in the aggregate amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof and (y) each partial reduction of the Unused Commitments shall automatically reduce
the Letter of Credit Commitment to the extent that, after giving effect to such reduction of the
Unused Commitments, the Letter of Credit Commitment exceeds the Tranche A Commitments.




          SECTION 2.07. Repayment of Revolving Credit Advances. (a) The Borrower shall repay
to the Agent for the ratable account of each Lender on the Termination Date applicable to such
Lender the aggregate principal amount of the Revolving Credit Advances made by such Lender and then
outstanding.




          (b) The obligations of the Borrower under this Agreement, any Letter of Credit Agreement and
any other agreement or instrument relating to any Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter
of Credit Agreement and such other agreement or instrument under all circumstances, including,
without limitation, the following circumstances (it being understood that any such payment by the
Borrower is without prejudice to, and does not constitute a waiver of, any rights the Borrower
might have or might acquire under Section 8.14 or otherwise as a result of the payment by any
Lender of any draft or the reimbursement by the Borrower thereof):





     (i) any lack of validity or enforceability of any Loan Document, any Letter of Credit
Agreement, any Letter of Credit or any other agreement or instrument relating thereto (all
of the foregoing being, collectively, the “L/C Related Documents”);




     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of the Borrower in respect of any L/C Related Document or any
other amendment or waiver of or any consent to departure from all or any of the L/C Related
Documents;



23









 






     (iii) the existence of any claim, set-off, defense or other right that the Borrower may
have at any time against any beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank, any Agent, any
Lender or any other Person, whether in connection with the transactions contemplated by the
L/C Related Documents or any unrelated transaction;




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




     (v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;




     (vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or any of the
obligations of the Borrower in respect of the L/C Related Documents; or




     (vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or a guarantor.



          (c) Swing Line Advances. The Borrower shall repay to the Agent for the ratable
account of the Swing Line Banks and each other Tranche A Lender which has made a Swing Line Advance
the outstanding principal amount of each Swing Line Advance made by each of them on the earlier of
the maturity date specified in the applicable Notice of Swing Line Borrowing (which maturity shall
be no later than ten days after the requested date of such Borrowing) and the final Termination
Date.




          SECTION 2.08. Interest on Revolving Credit Advances and Swing Line Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance and each Swing Line Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at the following rates per annum:





     (i) Base Rate Advances. During such periods as such Revolving Credit Advance
is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the Base Rate
in effect from time to time plus (y) the Applicable Margin in effect from time to
time plus (z) the Applicable Utilization Fee, if any, in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be Converted or paid in
full.




     (ii) Eurocurrency Rate Advances. During such periods as such Revolving Credit
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each
Interest Period for such Revolving Credit Advance to the sum of (x) the Eurocurrency Rate
for such Interest Period for such Revolving Credit Advance plus (y) the Applicable
Margin in effect from time to time plus (z) the Applicable Utilization Fee, if any,
in effect from time to time, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such Interest Period
and on the date such Eurocurrency Rate Advance shall be Converted or paid in full.




     (iii) Swing Line Advances. A rate per annum equal at all times to the Swing
Line Rate in effect from time to time, in each case payable in arrears on the date such
Swing Line Advance shall be paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default under Section 6.01(a), the Agent may, and upon the request of the Required Lenders shall,
require the Borrower to pay interest (“Default Interest”) on (i) the unpaid principal
amount of each Revolving Credit Advance and each Swing Line Advance owing to each Lender, payable
in arrears on the dates referred to in clause (a) above, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such Revolving


24









 







Credit Advance pursuant to clause (a) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above; provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not
previously required by the Agent.




          SECTION 2.09. Interest Rate Determination. (a) Each Reference Bank agrees to
furnish to the Agent timely information for the purpose of determining each Eurocurrency Rate and
each LIBO Rate. If any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section 2.08(a)(i) or (ii), and
the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate
under Section 2.08(a)(ii).




          (b) If, with respect to any Eurocurrency Rate Advances, the Required Lenders notify the Agent
that (i) they are unable to obtain matching deposits in the London inter-bank market at or about
11:00 A.M. (London time) on the second Business Day before the making of a Borrowing in sufficient
amounts to fund their respective Revolving Credit Advances as a part of such Borrowing during its
Interest Period or (ii) the Eurocurrency Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Required Lenders of making, funding or maintaining their
respective Eurocurrency Rate Advances for such Interest Period, the Agent shall forthwith so notify
the Borrower and the Lenders, whereupon (A) the Borrower will, on the last day of the then existing
Interest Period therefor, (1) if such Eurocurrency Rate Advances are denominated in Dollars, either
(x) prepay such Advances or (y) Convert such Advances into Base Rate Advances and (2) if such
Eurocurrency Rate Advances are denominated in any Committed Currency, either (x) prepay such
Advances or (y) exchange such Advances into an Equivalent amount of Dollars and Convert such
Advances into Base Rate Advances and (B) the obligation of the Lenders to make, or to Convert
Revolving Credit Advances into, Eurocurrency Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist;
provided that, if the circumstances set forth in clause (ii) above are applicable, the
Borrower may elect, by notice to the Agent and the Lenders, to continue such Advances in such
Committed Currency for Interest Periods of not longer than one month, which Advances shall
thereafter bear interest at a rate per annum equal to the Applicable Margin plus, for each Lender,
the cost to such Lender (expressed as a rate per annum) of funding its Eurocurrency Rate Advances
by whatever means it reasonably determines to be appropriate. Each Lender shall certify its cost
of funds for each Interest Period to the Agent and the Borrower as soon as practicable (but in any
event not later than ten Business Days after the first day of such Interest Period).




          (c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurocurrency Rate Advances in accordance with the provisions contained in the definition of
“Interest Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the then existing Interest Period
therefor, (i) if such Eurocurrency Rate Advances are denominated in Dollars, Convert into Base Rate
Advances and (ii) if such Eurocurrency Rate Advances are denominated in a Committed Currency, be
exchanged for an Equivalent amount of Dollars and Convert into Base Rate Advances.




          (d) On the date on which the aggregate unpaid principal amount of Eurocurrency Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than the
Revolving Credit Borrowing Minimum, such Advances shall automatically (i) if such Eurocurrency Rate
Advances are denominated in Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency
Rate Advances are denominated in a Committed Currency, be exchanged for an Equivalent amount of
Dollars and Convert into Base Rate Advances.





25









 








          (e) Upon the occurrence and during the continuance of any Event of Default under Section
6.01(a), (i) each Eurocurrency Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate Advances are denominated in
Dollars, be Converted into Base Rate Advances and (B) if such Eurocurrency Rate Advances are
denominated in any Committed Currency, be exchanged
for an Equivalent amount of Dollars and be Converted into Base Rate Advances and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended; provided that Borrower may elect, by notice to the Agent and the Lenders within
one Business Day of such Event of Default, to continue such Advances in such Committed Currency,
whereupon the Agent may require that each Interest Period relating to such Eurocurrency Rate
Advances shall bear interest at the Overnight Eurocurrency Rate for a period of three Business Days
and thereafter, each such Interest Period shall have a duration of not longer than one month.
“Overnight Eurocurrency Rate” means the rate per annum applicable to an overnight period
beginning on one Business Day and ending on the next Business Day equal to the sum of 1%, the
Applicable Interest Rate Margin and the average, rounded upward to the nearest whole multiple of
1/16 of 1%, if such average is not such a multiple, of the respective rates per annum quoted by
each Reference Bank to the Agent on request as the rate at which it is offering overnight deposits
in the relevant currency in amounts comparable to such Reference Bank’s Eurocurrency Rate Advances.




          (f) If Reuters Screen LIBOR01 Page is unavailable and fewer than two Reference Banks furnish
timely information to the Agent for determining the Eurocurrency Rate or LIBO Rate for any
Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,





     (i) the Agent shall forthwith notify the Borrower and the Lenders that the interest
rate cannot be determined for such Eurocurrency Rate Advances or LIBO Rate Advances, as the
case may be,




     (ii) with respect to Eurocurrency Rate Advances, each such Advance will automatically,
on the last day of the then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in Dollars, Convert into a Base Rate Advance and (B) if such
Eurocurrency Rate Advance is denominated in any Committed Currency, be prepaid by the
Borrower or be automatically exchanged for an Equivalent amount of Dollars and be Converted
into a Base Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a
Base Rate Advance), and




     (iii) the obligation of the Lenders to make Eurocurrency Rate Advances or LIBO Rate
Advances or to Convert Revolving Credit Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.



          SECTION 2.10. Optional Conversion of Revolving Credit Advances. The Borrower may on
any Business Day, upon notice given to the Agent not later than 12:00 noon (New York City time) on
the third Business Day prior to the date of the proposed Conversion and subject to the provisions
of Sections 2.09 and 2.13, Convert all Revolving Credit Advances denominated in Dollars of one Type
comprising the same Borrowing into Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Eurocurrency Rate Advances into Base Rate Advances shall be
made only on the last day of an Interest Period for such Eurocurrency Rate Advances, any Conversion
of Base Rate Advances into Eurocurrency Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b) and no Conversion of any Revolving Credit Advances
shall result in more separate Revolving Credit Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Revolving Credit Advances to be Converted, and (iii) if such
Conversion is into Eurocurrency Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on the Borrower.




          SECTION 2.11. Prepayments of Revolving Credit Advances and Swing Line Advances. (a)
Optional. The Borrower may, upon notice at least three Business Days’ prior to the date of
such prepayment, in the case of Eurocurrency Rate Advances, and not later than 12:00 noon (New York
City time) on the date of such prepayment, in the case of Base Rate Advances, to the Agent stating
the proposed date and aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amount of the Revolving Credit Advances comprising
part of the same Revolving Credit Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid; provided,


26









 







however, that (x) each partial prepayment shall be in an aggregate principal amount of not
less than the Revolving Credit Borrowing Minimum or a Revolving Credit Borrowing Multiple in excess
thereof and (y) in the event of any such prepayment of a Eurocurrency Rate Advance, the Borrower shall be obligated to reimburse
the Lenders in respect thereof pursuant to Section 8.04(c). The Borrower may, upon notice not
later than 12:00 noon (New York City time) on the date of such prepayment, to the Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amount of the Swing Line Advances comprising part
of the same Swing Line Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid.




          (b) Mandatory. (i) If, on any date, the Agent notifies the Borrower that, on any
interest payment date, the Equivalent in Dollars (determined on the third Business Day prior to
such interest payment date) of the aggregate principal amount of all Tranche A Advances or all
Tranche B Advances then outstanding exceeds 105% of the aggregate Tranche A Commitments or the
Tranche B Commitments, as the case may be, on such date, the Borrower shall, as soon as practicable
and in any event within two Business Days after receipt of such notice, subject to the proviso to
this sentence set forth below, prepay the outstanding principal amount of any Tranche A Advances or
Tranche B Advances in an aggregate amount sufficient to reduce such amount to an amount not to
exceed 100% of the aggregate Tranche A Commitments or the Tranche B Commitments, as the case may
be, on such date together with any interest accrued to the date of such prepayment on the aggregate
principal amount of the Tranche A Advances or Tranche B Advances prepaid; provided that if
the date of such required prepayment is not the last day of an Interest Period for a Eurocurrency
Rate Advance, such required prepayment shall be deferred until the last day of the Interest Period
of the outstanding Eurocurrency Rate Advances. The Agent shall give prompt notice of any
prepayment required under this Section 2.11(b) to the Borrower and the Lenders, and shall provide
prompt notice to the Borrower of any such notice of required prepayment received by it from any
Lender.




          (ii) Each prepayment made pursuant to this Section 2.11(b) shall be made together with any
interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case
of any prepayment of a Eurocurrency Rate Advance or a LIBO Rate Advance on a date other than the
last day of an Interest Period or at its maturity, any additional amounts which the Borrower shall
be obligated to reimburse to the Lenders in respect thereof pursuant to Section 8.04(c). The Agent
shall give prompt notice of any prepayment required under this Section 2.11(b) to the Borrower and
the Lenders.




          SECTION 2.12. Increased Costs. (a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation after the date hereof or (ii) the
compliance with any guideline or request from any central bank or other governmental authority made
after the date hereof including, without limitation, any agency of the European Union or similar
monetary or multinational authority (whether or not having the force of law), there shall be any
increase in the cost to any Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Advances or LIBO Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit (excluding for purposes of this Section 2.12 any
such increased costs resulting from (i) Taxes or Other Taxes (as to which Section 2.15 shall
govern) and (ii) changes in the basis of taxation of overall net income or overall gross income by
the United States or by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate in reasonable detail as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.




          (b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) effected after the date hereof affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such Lender and that the
amount of such capital is increased by or based upon the existence of such Lender’s commitment to
lend or to issue or participate in Letters of Credit hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to the Agent), the Borrower shall pay
to the Agent for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender’s commitment to lend hereunder. A certificate in
reasonable detail as to such amounts submitted to the Borrower and the Agent by such Lender shall
be conclusive and binding for all purposes, absent manifest error.




27









 








          (c) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date that such Lender
notifies the Borrower of the change giving rise to such increased costs or reductions and of such
Lender’s intention to claim compensation therefor; provided further that, if the
change giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof.




          SECTION 2.13. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending
Office to perform its obligations hereunder to make Eurocurrency Rate Advances in Dollars or any
Committed Currency or LIBO Rate Advances in Dollars or any Foreign Currency or to fund or maintain
Eurocurrency Rate Advances in Dollars or any Committed Currency or LIBO Rate Advances in Dollars or
any Foreign Currency hereunder, (a) each Eurocurrency Rate Advance or LIBO Rate Advance denominated
in such currency, as the case may be, will automatically, upon such demand, (i) if such
Eurocurrency Rate Advance or LIBO Rate Advance is denominated in Dollars, be Converted into a Base
Rate Advance or an Advance that bears interest at the rate set forth in Section 2.08(a)(i), as the
case may be, and (ii) if such Eurocurrency Rate Advance or LIBO Rate Advance is denominated in any
Foreign Currency, be exchanged into an Equivalent amount of Dollars and be Converted into a Base
Rate Advance and (b) the obligation of the Lenders to make Eurocurrency Rate Advances or LIBO Rate
Advances in such currency or to Convert Revolving Credit Advances into Eurocurrency Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.




          SECTION 2.14. Payments and Computations. (a) The Borrower shall make each payment
hereunder (except with respect to principal of, interest on, and other amounts relating to,
Advances denominated in a Foreign Currency), irrespective of any right of counterclaim or set-off,
not later than 12:00 noon (New York City time) on the day when due in Dollars to the Agent at the
applicable Agent’s Account in same day funds. The Borrower shall make each payment hereunder with
respect to principal of, interest on, and other amounts relating to, Advances denominated in a
Foreign Currency, irrespective of any right of counterclaim or set-off, not later than 12:00 noon
(at the Payment Office for such Foreign Currency) on the day when due in such Foreign Currency to
the Agent, by deposit of such funds to the applicable Agent’s Account in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the payment of principal or
interest or fees of Letter of Credit commissions ratably (other than amounts payable pursuant to
Section 2.03, 2.12, 2.15 or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender becoming a Lender hereunder
as a result of a Commitment Increase pursuant to Section 2.19 or an extension of the Termination
Date pursuant to Section 2.20, and upon the Agent’s receipt of such Lender’s Assumption Agreement
and recording of the information contained therein in the Register, from and after the applicable
Increase Date or Extension Date, as the case may be, the Agent shall make all payments hereunder
and under any Notes issued in connection therewith in respect of the interest assumed thereby to
the Assuming Lender. Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between themselves.




          (b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such
Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to
time against any or all of the Borrower’s accounts with such Lender any amount so due.





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          (c) All computations of interest based on the Base Rate shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, all computations of interest based on the
Eurocurrency Rate or the Federal Funds Rate and of fees and Letter of Credit commissions shall be
made by the Agent on the basis of a year of 360 days and computations in respect of Competitive Bid
Advances shall be made by the Agent as specified
in the applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance with market
practice), in each case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.




          (d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to be
made in the next following calendar month, such payment shall be made on the next preceding
Business Day.




          (e) Unless the Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Lenders hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to
the Agent, at (i) the Federal Funds Rate in the case of Advances denominated in Dollars or (ii) the
cost of funds incurred by the Agent in respect of such amount in the case of Advances denominated
in Foreign Currencies.




          (f) To the extent that the Agent receives funds for application to the amounts owing by any
Loan Party under or in respect of this Agreement or any other Loan Document in currencies other
than the currency or currencies required to enable the Agent to distribute funds to the Lenders in
accordance with the terms of this Section 2.14, the Agent shall be entitled to convert or exchange
such funds into Dollars or into a Foreign Currency or from Dollars to a Foreign Currency or from a
Foreign Currency to Dollars, as the case may be, to the extent necessary to enable the Agent to
distribute such funds in accordance with the terms of this Section 2.14; provided that the
Borrower and each of the Lenders hereby agree that the Agent shall not be liable or responsible for
any loss, cost or expense suffered by the Borrower or such Lender as a result of any conversion or
exchange of currencies affected pursuant to this Section 2.14(f) or as a result of the failure of
the Agent to effect any such conversion or exchange; and provided further that the
Borrower agrees to indemnify the Agent and each Lender, and hold the Agent and each Lender
harmless, for any and all losses, costs and expenses incurred by the Agent or any Lender for any
conversion or exchange of currencies (or the failure to convert or exchange any currencies) in
accordance with this Section 2.14(f).




          (g) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Applicable
Fixed Charge Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii)
a proper calculation of the Applicable Fixed Charge Ratio would have resulted in higher pricing for
such period, the Borrower shall immediately and retroactively be obligated to pay to the Agent for
the account of the applicable Lenders, promptly on demand by the Agent (or, after the occurrence of
an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, automatically and without further action by the Agent or any Lender), an
amount equal to the excess of the amount of interest, fees and commissions that should have been
paid for such period over the amount of interest, fees and commissions actually paid for such
period, provided that if the proper calculation of the Applicable Fixed Charge Ratio would
have resulted in lower pricing for such period in respect of interest, fees and commissions that
have accrued but are not yet payable, such adjustment shall be made for such interest, fees and
commissions for the benefit of the Borrower. This paragraph shall not limit the rights of the
Agent or any Lender, as the case may be, under Section 2.08(b) or under Article VI.
The Borrower’s obligations under this paragraph shall survive the termination of the Commitments
and the repayment of all other obligations hereunder.





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          SECTION 2.15. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.14 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender, the Sub-Agent
and the Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu
of net income taxes, by the jurisdiction under the laws of which such Lender, the Sub-Agent or the
Agent (as the case may be) is organized or any political subdivision thereof and, in the case of
each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction of such Lender’s Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes being hereinafter
referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note or any other documents to be delivered
hereunder to any Lender, the Sub-Agent or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.15) such Lender, the Sub-Agent or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes any other documents to be delivered hereunder or from the execution,
delivery or registration of, performing under, or otherwise with respect to, this Agreement, any
other Loan Document or any other documents to be delivered hereunder or thereunder (hereinafter
referred to as “Other Taxes”).




          (c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed
or asserted by any jurisdiction on amounts payable under this Section 2.15) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written demand therefor by
delivery of an invoice in reasonable detail evidencing the amounts owed.




          (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the
Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment to the extent such a receipt is issued therefor, or other written proof of
payment thereof that is reasonably satisfactory to the Agent. In the case of any payment hereunder
or under the Notes or any other documents to be delivered hereunder by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no Taxes are payable in
respect thereof, the Borrower shall furnish, or shall cause such payor to furnish, to the Agent, at
such address, an opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms “United
States” and “United States person” shall have the meanings specified in Section 7701 of
the Internal Revenue Code.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assumption Agreement or the Assumption Agreement or the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from
time to time thereafter as reasonably requested in writing by the Borrower (but only so long as
such Lender remains lawfully able to do so), shall provide each of the Agent and the Borrower with
two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from
or entitled to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender
provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance pursuant
to which a Lender assignee


30









 







becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with respect to interest
paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee on such date. If
any form or document referred to in this subsection (e) requires the disclosure of information,
other than information necessary to compute the tax payable and information required on the date
hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers to
be confidential, the Lender shall give notice thereof to the Borrower and shall not be obligated to
include in such form or document such confidential information.




          (f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in Section 2.15(e) (other
than if such failure is due to a change in law, or in the interpretation or application
thereof, occurring subsequent to the date on which a form, certificate or other document originally
was required to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to indemnification under
Section 2.15(a) or (c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder, the Borrower shall
take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.




          (g) Any Lender claiming any additional amounts payable pursuant to this Section 2.15 agrees to
use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Eurocurrency Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.




          SECTION 2.16. Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Revolving Credit Advances owing to it (other than (i) as payment of an Advance made
by an Issuing Bank pursuant to the first sentence of Section 2.04(c), (ii) as a payment of a Swing
Line Advance made by a Swing Line Bank that has not been participated to the other Lenders pursuant
to Section 2.02(b), (iii) pursuant to Section 2.12, 2.15 or 8.04(c) or (iv) as payment to a
Non-Consenting Lender on the Termination Date applicable to it in accordance with Section 2.07) in
excess of its ratable share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the
Revolving Credit Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with an amount equal to such Lender’s
ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender pursuant to this Section
2.16 may, to the fullest extent permitted by law, exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.




          SECTION 2.17. Evidence of Debt. (a) 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 Revolving Credit Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrower agrees that upon notice by any
Lender to the Borrower (with a copy of such notice to the Agent) to the effect that a Revolving
Credit Note is required or appropriate in order for such Lender to evidence (whether for purposes
of pledge, enforcement or otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a Revolving Credit Note
payable to the order of such Lender in a principal amount up to the Revolving Credit Commitment(s)
of such Lender.





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          (b) The Register maintained by the Agent pursuant to Section 8.07(d) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder and (iv) the
amount of any sum received by the Agent from the Borrower hereunder and each Lender’s share
thereof.




          (c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of the Register, each Lender and, in the
case of such account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an entry,
or any finding that an entry is incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of the Borrower under this Agreement.




          SECTION 2.18. Use of Proceeds. The proceeds of the Advances and issuances of Letters
of Credit shall be available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.




          SECTION 2.19. Increase in the Aggregate Commitments. (a) The Borrower may, at any
time but in any event not more than once in any calendar year prior to the final Termination Date,
by notice to the Agent, request that the aggregate amount of the Tranche A Commitment be increased
by an amount of $25,000,000 or an integral multiple thereof (each a “Commitment Increase”)
to be effective as of a date that is at least 90 days prior to the scheduled final Termination Date
then in effect (the “Increase Date”) as specified in the related notice to the Agent;
provided, however that (i) in no event shall the aggregate amount of the Tranche A
Commitments at any time exceed $1,150,000,000 and (ii) on the date of any request by the Borrower
for a Commitment Increase and on the related Increase Date (A) the Public Debt Rating shall be BBB-
or better from S&P and Baa3 or better from Moody’s and (B) the applicable conditions set forth in
Article III shall be satisfied.




          (b) The Agent shall promptly notify the Lenders of a request by the Borrower for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective Tranche A
Commitments (the “Commitment Date”). Each Lender that is willing to participate in such
requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion,
give written notice to the Agent on or prior to the Commitment Date of the amount by which it is
willing to increase its Tranche A Commitment. If the Lenders notify the Agent that they are
willing to increase the amount of their respective Tranche A Commitments by an aggregate amount
that exceeds the amount of the requested Commitment Increase, the requested Commitment Increase
shall be allocated among the Lenders willing to participate therein in such amounts as are agreed
between the Borrower and the Agent. No Lender shall have any obligation to participate in any
requested Commitment Increase, and the election of any Lender to participate in a requested
Commitment Increase shall not obligate any other Lender to so participate.




          (c) Promptly following each Commitment Date, the Agent shall notify the Borrower as to the
amount, if any, by which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested Commitment Increase,
then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion
of the requested Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Commitment of each such
Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple thereof.




32









 








          (d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.19(b) (each such Eligible Assignee and
each Eligible Assignee that agrees to an extension of the Termination Date in accordance with
Section 2.20, an “Assuming Lender”) shall become a Lender party to this Agreement as of
such Increase Date and the Tranche A Commitment of each Increasing Lender for such requested
Commitment Increase shall be so increased by such amount (or by the amount allocated to such Lender
pursuant to the last sentence of Section 2.19(b)) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase Date the following,
each dated such date:





     (i) (A) certified copies of resolutions of the Board of Directors of the Borrower or
the Executive Committee of such Board approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of counsel for the Borrower
(which may be in-house counsel), in substantially the form of Exhibit E hereto;




     (ii) an assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Borrower and the Agent (each an “Assumption Agreement”), duly
executed by such Eligible Assignee, the Agent and the Borrower; and




     (iii) confirmation from each Increasing Lender of the increase in the amount of its
Commitment in a writing satisfactory to the Borrower and the Agent.


On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.19(d), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by
telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each Increasing Lender and
each Assuming Lender on such date.




          SECTION 2.20. Extension of Termination Date. (a) At least 45 days but not more than
60 days prior to the first and/or second anniversary of the Effective Date, the Borrower, by
written notice to the Agent, may request an extension of the Termination Date in effect at such
time by one year from its then scheduled expiration. The Agent shall promptly notify each Lender
of such request, and each Lender shall in turn, in its sole discretion, not later than 20 days
prior to such anniversary date, notify the Borrower and the Agent in writing as to whether such
Lender will consent to such extension. If any Lender shall fail to notify the Agent and the
Borrower in writing of its consent to any such request for extension of the Termination Date at
least 20 days prior to the applicable anniversary date, such Lender shall be deemed to be a
Non-Consenting Lender with respect to such request. The Agent shall notify the Borrower not later
than 15 days prior to the applicable anniversary date of the decision of the Lenders regarding the
Borrower’s request for an extension of the Termination Date.




          (b) If all the Lenders consent in writing to any such request in accordance with subsection
(a) of this Section 2.20, the Termination Date in effect at such time shall, effective as at the
applicable anniversary date (the “Extension Date”), be extended for one year;
provided that on each Extension Date the applicable conditions set forth in Article III
shall be satisfied or waived by all the Lenders. If less than all of the Lenders consent in
writing to any such request in accordance with subsection (a) of this Section 2.20, the Termination
Date in effect at such time shall, effective as at the applicable Extension Date and subject to
subsection (d) of this Section 2.20, be extended as to those Lenders that so consented (each a
“Consenting Lender”) but shall not be extended as to any other Lender (each a
“Non-Consenting Lender”). To the extent that the Termination Date is not extended as to
any Lender pursuant to this Section 2.20 and the Commitment of such Lender is not assumed in
accordance with subsection (c) of this Section 2.20 on or prior to the applicable Extension Date,
the Commitment of such Non-Consenting Lender shall automatically terminate in whole on such
unextended Termination Date without any further notice or other action by the Borrower, such Lender
or any other Person; provided that such Non-Consenting Lender’s rights under Sections 2.12,
2.15 and 8.04, and its obligations under Section 7.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such date. It is understood and agreed that no Lender
shall have any obligation whatsoever to agree to any request made by the Borrower for any requested
extension of the Termination Date.




          (c) If less than all of the Lenders consent to any such request pursuant to subsection (a) of
this Section 2.20, the Agent shall promptly so notify the Consenting Lenders, and each Consenting
Lender may, in its sole discretion, give written notice to the Agent not later than 10 days prior
to the Extension Date of the amount of the Non-Consenting Lenders’ Commitments for which it is
willing to accept an assignment. If the Consenting Lenders notify the Agent that they are willing
to accept assignments of Commitments in an aggregate amount that exceeds the amount of the
Commitments of the Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between the Borrower and
the Agent. If after giving effect to the assignments of Commitments described above there remains
any Commitments of Non-Consenting Lenders, the Borrower may arrange for one or more Consenting
Lenders or


33









 







other Eligible Assignees as Assuming Lenders to assume, effective as of the Extension Date,
any Non-Consenting Lender’s Commitment and all of the obligations of such Non-Consenting Lender
under this Agreement thereafter arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of any
such Assuming Lender as a result of such substitution shall in no event be less than $5,000,000
unless the amount of the Commitment of such Non-Consenting Lender is less than $5,000,000, in which
case such Assuming Lender shall assume all of such lesser amount; and provided
further that:





     (i) any such Consenting Lender or Assuming Lender shall have paid to such
Non-Consenting Lender (A) the aggregate principal amount of, and any interest accrued and
unpaid to the effective date of the assignment on, the outstanding Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid fees and commissions owing to
such Non-Consenting Lender as of the effective date of such assignment;




     (ii) all additional costs reimbursements, expense reimbursements and indemnities
payable to such Non-Consenting Lender, and all other accrued and unpaid amounts owing to
such Non-Consenting Lender hereunder, as of the effective date of such assignment shall have
been paid to such Non-Consenting Lender; and




     (iii) with respect to any such Assuming Lender, the applicable processing and
recordation fee required under Section 8.07(a) for such assignment shall have been paid;


provided further that such Non-Consenting Lender’s rights under Sections 2.12, 2.15
and 8.04, and its obligations under Section 7.05, shall survive such substitution as to matters
occurring prior to the date of substitution. At least three Business Days prior to any Extension
Date, (A) each such Assuming Lender, if any, shall have delivered to the Borrower and the Agent an
Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender, the
Borrower and the Agent, (B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Agent as to the increase in the amount of its Commitment and
(C) each Non-Consenting Lender being replaced pursuant to this Section 2.20 shall have delivered to
the Agent any Note or Notes held by such Non-Consenting Lender. Upon the payment or prepayment of
all amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding sentence, each
such Consenting Lender or Assuming Lender, as of the Extension Date, will be substituted for such
Non-Consenting Lender under this Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the provisions hereof, be
released and discharged.




          (d) If (after giving effect to any assignments or assumptions pursuant to subsection (c) of
this Section 2.20) Lenders having Commitments equal to at least 50% of the Commitments in effect
immediately prior to the Extension Date consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or otherwise) not later than one Business Day
prior to such Extension Date, the Agent shall so notify the Borrower, and, subject to the
satisfaction of the applicable conditions in Article III, the Termination Date then in effect shall
be extended for the additional one-year period as described in subsection (a) of this Section 2.20,
and all references in this Agreement, and in the Notes, if any, to the “Termination Date”
shall, with respect to each Consenting Lender and each Assuming Lender for such Extension Date,
refer to the Termination Date as so extended. Promptly following each Extension Date, the Agent
shall notify the Lenders (including, without limitation, each Assuming Lender) of the extension of
the scheduled Termination Date in effect immediately prior thereto and shall thereupon record in
the Register the relevant information with respect to each such Consenting Lender and each such
Assuming Lender.




34









 








ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING




          SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03.
Sections 2.01 and 2.03 of this Agreement shall become effective on and as of the first date (the
“Effective Date”) on which the following conditions precedent have been satisfied:





     (a) There shall have occurred no Material Adverse Change since December 30, 2006.




     (b) There shall exist no action, suit, investigation, litigation or proceeding
affecting the Borrower or any of its Subsidiaries pending or threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the
“Disclosed Litigation”) or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the transactions contemplated
hereby, and there shall have been no adverse change in the status, or financial effect on
the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.




     (c) Nothing shall have come to the attention of the Lenders during the course of their
due diligence investigation to lead them to believe that the Information Memorandum and all
other Confidential Information provided to the Lenders prior to the date hereof was or has
become misleading, incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the Borrower and its
Subsidiaries as they shall have requested.




     (d) All governmental and third party consents and approvals necessary in connection
with the transactions contemplated hereby shall have been obtained (without the imposition
of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no
law or regulation shall be applicable in the reasonable judgment of the Lenders that
restrains, prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.




     (e) The Borrower shall have notified the Agent in writing as to the proposed Effective
Date.




     (f) The Borrower shall have paid all accrued fees and expenses of the Agent and the
Lenders (including the accrued reasonable fees and expenses of counsel to the Arrangers).




     (g) On the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:




     (i) The representations and warranties contained in Section 4.01 are correct on
and as of the Effective Date, and




     (ii) No event has occurred and is continuing that constitutes a Default.




     (h) The Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:




     (i) The Revolving Credit Notes to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.17.




     (ii) a guaranty in substantially the form of Exhibit D hereto (together with
each other guaranty or guaranty supplement delivered pursuant to Section 5.01(j), in
each case as amended, the “Guaranty”), duly executed by each Guarantor.




     (iii) Certified copies of the resolutions of the Board of Directors of each
Loan Party approving each Loan Document to which it is or is to be a party, and of
all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to each Loan Document to which it is or is to be a
party.



35









 






     (iv) A certificate of the Secretary or an Assistant Secretary of each Loan
Party certifying the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.




     (v) A favorable opinion David Fannin, General Counsel of the Borrower and a
favorable opinion of McDermott, Will & Emery, counsel for the Loan Parties,
substantially in the form of Exhibits E-1 and E-2 hereto, respectively, and as to
such other matters as any Lender through the Agent may reasonably request.




     (vi) A favorable opinion of Shearman & Sterling LLP, counsel for the Arrangers,
in form and substance satisfactory to the Agent.




     (i) The Borrower shall have terminated the commitments, and arranged, contemporaneously
with the initial Borrowing under this Agreement, to have paid in full all Debt, interest,
fees and other amounts outstanding, under the Five Year Credit Agreement dated as April 30,
2004, as amended, among the Borrower, the lenders parties thereto and Wachovia Bank,
National Association, as agent, and each of the Lenders that is a party to each such credit
facility hereby waives, upon execution of this Agreement, the three Business Days’ notice
required by Section 2.06 of each such Credit Agreement relating to the termination of
commitments thereunder.



          SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing, Letter of Credit
Issuance, Commitment Increase and Extension Date. The obligation of each Lender to make a
Revolving Credit Advance and each Swing Line Bank to make Swing Line Advance (other than (x) a
Swing Line Advance made by a Lender pursuant to Section 2.02(b) or (y) an Advance made by any
Issuing Bank or any Lender pursuant to Section 2.04(c)) on the occasion of each Revolving Credit
Borrowing, the obligation of each Issuing Bank to issue a Letter of Credit, each Commitment
Increase and each extension of Commitments pursuant to Section 2.20 shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date of such Revolving
Credit Borrowing, Notice of Swing Line Borrowing, issuance, the applicable Increase Date or the
applicable Extension Date (a) the following statements shall be true (and each of the giving of the
applicable Notice of Revolving Credit Borrowing, Notice of Swing Line Borrowing, Notice of
Issuance, request for Commitment Increase, request for Commitment extension and the acceptance by
the Borrower of the proceeds of such Revolving Credit Borrowing, Swing Line Borrowing or Letter of
Credit shall constitute a representation and warranty by the Borrower that on the date of such
Borrowing or such issuance, such Increase Date or such Extension Date such statements are true):





     (i) the representations and warranties contained in each Loan Document (other than, in
the case of a Revolving Credit Borrowing or the issuance of a Letter of Credit, the
representations set forth in the last sentence of subsection 4.01(e) hereof and in
subsection 4.01(f)(i) hereof) and are correct on and as of such date, before and after
giving effect to such Revolving Credit Borrowing, Swing Line Borrowing, such issuance, such
Commitment Increase, such Extension Date and to the application of the proceeds therefrom,
as though made on and as of such date, and




     (ii) no event has occurred and is continuing, or would result from such Revolving
Credit Borrowing, Swing Line Borrowing, such issuance, such Commitment Increase, such
Extension Date or from the application of the proceeds therefrom, that constitutes a
Default;


and (b) the Agent shall have received such other approvals, opinions or documents as any Lender
through the Agent may reasonably request.




36









 





          SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing. The obligation
of each Lender that is to make a Competitive Bid Advance on the occasion of a Competitive Bid
Borrowing to make such Competitive Bid Advance as part of such Competitive Bid Borrowing is subject
to the conditions precedent that (i) the Agent shall have received the written confirmatory Notice
of Competitive Bid Borrowing with respect thereto, (ii) on or before the date of such Competitive
Bid Borrowing, but prior to such Competitive Bid Borrowing,
the Agent shall have received a Competitive Bid Note payable to the order of such Lender for
each of the one or more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal amount of the Competitive
Bid Advance to be evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date of such Competitive
Bid Borrowing the following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Competitive Bid Borrowing such statements are true):





     (a) the representations and warranties contained in each Loan Document (other than the
representations set forth in the last sentence of subsection 4.01(e) hereof and in
subsection 4.01(f)(i) hereof) are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date, and




     (b) no event has occurred and is continuing, or would result from such Competitive Bid
Borrowing or from the application of the proceeds therefrom, that constitutes a Default.



          SECTION 3.04. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




                    SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:





     (a) Each Loan Party and their Material Subsidiaries (i) is a corporation duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign corporation in each
other jurisdiction in which it own or leases property or in which the conduct of its
business requires it to so qualify or be licensed, except where the failure to be so
qualified would not have a Material Adverse Effect and (iii) has all requisite corporate
power and authority (including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to carry on its business as
now conducted as and proposed to be conducted.




     (b) The execution, delivery and performance by each Loan Party of each Loan Document to
which it is or is to be a party, and the consummation of the transactions contemplated
hereby and thereby, are within such Loan Party’s corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) such Loan Party’s charter or
by-laws or (ii) law or any contractual restriction binding on or affecting any Loan Party,
any of its Subsidiaries or any of its properties.




     (c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is required for the
due execution, delivery and performance by any Loan Party of the Loan Documents to which it
is or is to be a party.



37









 






     (d) This Agreement has been, and each of the other Loan Documents when delivered
hereunder will have been, duly executed and delivered by each Loan Party party thereto.
This Agreement
is, and each of the other Loan Documents when delivered hereunder will be, the legal,
valid and binding obligation of each Loan Party party thereto enforceable against such Loan
Party in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the rights of creditors
generally and subject to general principles of equity.




     (e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December
30, 2006, and the related Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte &
Touche LLP, independent public accountants, copies of which have been furnished to each
Lender, fairly present the Consolidated financial condition of the Borrower and its
Subsidiaries as at such date and the Consolidated results of the operations of the Borrower
and its Subsidiaries for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied. Since December 30, 2006, there has
been no Material Adverse Change.




     (f) There is no pending or threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action, affecting the Borrower
or any of its Subsidiaries before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect (other than the Disclosed
Litigation) or (ii) purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the transactions contemplated hereby, and there has been no
adverse change in the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto.




     (g) Neither the Information Memorandum nor any other information, exhibit or report
furnished by or on behalf of any Loan Party to the Agent or and Lender in connection with
the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements made therein not misleading.




     (h) The Borrower and each of its Material Subsidiaries has filed, has caused to be
filed or has been included in all tax returns (Federal, state, local and foreign) required
to be filed and has paid all taxes shown thereon to be due, together with applicable
interest and penalties.




     (i) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.




     (j) The Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940, as amended.




     (k) 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, and none of such
property is subject to any Lien, except as permitted by Section 5.02(a).




     (l) 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 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.



38









 






     (m) All intercompany loans in an outstanding principal amount of $25,000,000 or more by
the Borrower or a Guarantor to a Subsidiary of the Borrower that is not a Guarantor as of
the Effective Date are described on Schedule 4.01(m) hereto.




     (n) The Borrower and its Subsidiaries have experienced no strikes, labor disputes, slow
downs or work stoppages due to labor disagreements which have had, or would reasonably be
expected to have, a Materially Adverse Effect, and, to the best knowledge of the Borrower,
there are no such strikes, disputes, slow downs or work stoppages threatened against the
Borrower or any of its Subsidiaries.




     (o) Each Loan Party is, individually and together with its Subsidiaries, Solvent.



ARTICLE V




COVENANTS OF THE BORROWER




          SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid or
any Lender shall have any Commitment hereunder or any Letter of Credit shall be outstanding, the
Borrower will:





     (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA and Environmental
Laws, except to the extent that any such non-compliance, in the aggregate, would not have a
material negative impact on any Loan Party and its Subsidiaries, taken as a whole.




     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and (ii)
all lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom attaches to its property
and becomes enforceable against its other creditors.




     (c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates; provided, however, that the Borrower and its
Subsidiaries may self-insure to the same extent as other companies engaged in similar
businesses and owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates and to the extent consistent with prudent business practice.




     (d) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its corporate existence, rights (charter
and statutory) and franchises; provided, however, that (i) the Borrower and
its Subsidiaries may consummate any merger or consolidation permitted under Section 5.02(b)
and (ii) neither the Borrower nor any of its Subsidiaries shall be required to preserve any
right or franchise if the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Borrower, such Subsidiary or the
Lenders, provided, further, that the foregoing shall not restrict any Person
other than a Loan Party to the extent that the failure to so comply would not be reasonably
likely to have a Material Adverse Effect.




     (e) Visitation Rights. At any reasonable time and from time to time during
normal business hours, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the



39









 







Borrower and any of its Subsidiaries, and to discuss the affairs, finances and accounts
of the Borrower and any of its Subsidiaries with any of their officers or directors and with
their independent certified public accountants, provided that so long as no Default
shall have occurred and be continuing, the Agent and each Lender shall visit the Borrower
and its Subsidiaries not more than four times in any year.




     (f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrower and each such Subsidiary
in accordance with generally accepted accounting principles in effect from time to time.




     (g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Subsidiaries to maintain and preserve, all of its properties that are used or useful in
the conduct of its business in good working order and condition, ordinary wear and tear
excepted.




     (h) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less favorable to the Borrower or
such Subsidiary than it would obtain in a comparable arm’s-length transaction with a Person
not an Affiliate.




     (i) Reporting Requirements. Furnish to the Agent:




     (i) as soon as available and in any event within 45 days after the end of each
of the first three quarters of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as having been prepared
in accordance with generally accepted accounting principles and certificates of the
chief financial officer, treasurer or controller of the Borrower as to compliance
with the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03, provided
that in the event of any change in generally accepted accounting principles used in
the preparation of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;




     (ii) as soon as available and in any event within 90 days after the end of each
fiscal year of the Borrower, a copy of the annual audit report for such year for the
Borrower and its Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion acceptable to the Required
Lenders by Deloitte & Touche LLP or other independent public accountants acceptable
to the Required Lenders and certificates of the chief financial officer, treasurer
or controller of the Borrower as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any change in
generally accepted accounting principles used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;




     (iii) as soon as possible and in any event within five days after an Executive
Officer has notice or knowledge of the occurrence of each Default continuing on the
date of such statement, a statement of an Executive Officer of the Borrower setting
forth details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto;



40









 






     (iv) promptly after the sending or filing thereof, notice to the Agent of all
reports that the Borrower sends to any of its securityholders, and notice to the
Agent of all reports and registration statements that the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any national securities
exchange;




     (v) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in Section 4.01(f); and




     (vi) such other information respecting the Borrower or any of its Subsidiaries
as any Lender through the Agent may from time to time reasonably request.




     (j) Covenant to Guarantee Obligations. The Borrower shall, with respect to any
Person that subsequent to the Effective Date, becomes a Subsidiary that is organized in a
jurisdiction within the United States having total assets that accounted for or produced, or
would on a pro forma basis have accounted for or produced, more than 10% of Consolidated
EBITR of the Borrower during any of the three most recently completed fiscal years of the
Borrower, promptly cause such Subsidiary to become a party to the Guaranty pursuant to
documentation that is in form and substance satisfactory to the Agent.




     (k) Ownership of Guarantors. Maintain at least its percentage of ownership
existing as of the date hereof of all Guarantors, and maintain its ownership percentage in
each Person which becomes a Guarantor after the date hereof, as such ownership exists at the
time such Person becomes a Guarantor.



          SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit shall be outstanding, the
Borrower will not:





     (a) Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any Lien on or with respect to any of its properties, whether
now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:




     (i) Permitted Liens,




     (ii) purchase money Liens upon or in any real property, improvement or
equipment acquired or held by the Borrower or any Subsidiary in the ordinary course
of business to secure the purchase price of such property, improvement or equipment
or to secure Debt incurred solely for the purpose of financing the acquisition of
such property, improvement or equipment, or Liens existing on such property,
improvement or equipment at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to finance the
acquisition of such property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that
no such Lien shall extend to or cover any properties of any character other than the
real property or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not theretofore subject to the
Lien being extended, renewed or replaced, provided further that the
aggregate principal amount of the indebtedness secured by the Liens referred to in
this clause (ii) shall not exceed $300,000,000 at any time outstanding,




     (iii) the Liens existing on the Effective Date and described on Schedule
5.02(a) hereto,




     (iv) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes
a Subsidiary of the Borrower; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do not extend to any
assets other than those of the Person so
merged into or consolidated with the Borrower or such Subsidiary or acquired by
the Borrower or such Subsidiary,



41









 






     (v) Liens relating to an accounts receivable securitization program in an
amount not to exceed $350,000,000,




     (vi) other Liens securing Debt in an aggregate principal amount not to exceed
$400,000,000 at any time outstanding, and




     (vii) the replacement, extension or renewal of any Lien permitted by clause
(iii) or (iv) above upon or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount or change in any
direct or contingent obligor) of the Debt secured thereby.




     (b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its assets (whether now owned or hereafter acquired) to, any
Person, or permit any of its Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower formed in connection with an
accounts receivable securitization program solely for the purpose of selling its assets may
sell all or substantially all of its assets in connection with such securitzation and (iii)
any Subsidiary of the Borrower may merge into or dispose of assets to the Borrower so long
as the Borrower is the surviving corporation, provided, in each case, that no
Default shall have occurred and be continuing at the time of such proposed transaction or
would result therefrom.




     (c) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except as required
or permitted by generally accepted accounting principles.




     (d) Change in Nature of Business. Make, or permit any of its Subsidiaries to
make, any material change in the nature of its business as carried on at the date hereof or
related or incidental thereto.




     (e) Subsidiary Debt. Permit any of its Subsidiaries to create or suffer to
exist, any Debt other than:




     (i) Debt owed to the Borrower or to a wholly owned Subsidiary of the Borrower,




     (ii) Debt existing on the Effective Date and described on Schedule 5.02(f)
hereto (the “Existing Debt”), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the Existing Debt, provided
that the principal amount of such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension, refunding
or refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, refunding or
refinancing,




     (iii) Debt secured by Liens permitted by Section 5.02(a)(ii), (iv) or (v),




     (iv) other Debt (whether secured or unsecured) to the extent such Debt would be
permitted to be secured under Section 5.02(a)(vi); and




     (v) endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business.




     (f) Actions Under Certain Documents. Modify, amend, cancel or rescind any
agreements or documents evidencing or governing Subordinated Debt.



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          SECTION 5.03. Financial Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit shall be outstanding, the
Borrower will:





     (a) Fixed Charge Coverage Ratio. Maintain a ratio of Consolidated EBITR of the
Borrower and its Subsidiaries for each period of four consecutive fiscal quarters most
recently ended to the sum of (i) net interest payable on, and amortization of debt discount
in respect of, all Debt during such period plus (ii) rentals payable under leases of
real or personal, or mixed, property during such period plus (iii) interest and
other continuing program fees (excluding initial closing fees) related to an accounts
receivable securitization program payable during such period, in each case, by the Borrower
and its Subsidiaries of not less than 1.70:1.00.




     (b) Leverage Ratio. Maintain a ratio of Consolidated Covenant Debt to
Consolidated EBITDA of the Borrower and its Subsidiaries for the period of four consecutive
fiscal quarters most recently ended of not greater than 3.00:1.00.



ARTICLE VI




EVENTS OF DEFAULT




          SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:





     (a) The Borrower shall fail to pay any principal of any Advance when the same becomes
due and payable; or the Borrower shall fail to pay any interest on any Advance or make any
other payment of fees or other amounts payable under this Agreement or any Note within three
Business Days after the same becomes due and payable; or




     (b) Any representation or warranty made by the Borrower herein or by the Borrower (or
any of its officers) in connection with this Agreement shall prove to have been incorrect in
any material respect when made; or




     (c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d) (as to the existence of any Loan Party), (e), (h) or (i), 5.02
or 5.03, or (ii) the Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice thereof shall have been
given to the Borrower by the Agent or any Lender; or




     (d) The Borrower or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt that is outstanding in a principal or net amount of at least
$50,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or
such Subsidiary (as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and payable, or required to be
prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or




     (e) The Borrower or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,



43









 







reorganization, arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall occur; or the
Borrower or any of its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or




     (f) Judgments or orders for the payment of money in excess of $50,000,000 in the
aggregate shall be rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; provided, however, that any such judgment or order shall not
be an Event of Default under this Section 6.01(f) if and for so long as (i) the amount of
such judgment or order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which shall be
rated at least “A” by A.M. Best Company, has been notified of, and has not disputed the
claim made for payment of, the amount of such judgment or order; or




     (g) the Borrower shall cease at any time to own, directly or indirectly, a majority of
the Voting Stock of each Guarantor; or




     (h) (i) Any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting Stock) representing
40% or more of the combined voting power of all Voting Stock of the Borrower; or




     (i) any provision of any Loan Document after delivery thereof pursuant to Section 3.01
or 5.01(j) shall for any reason cease to be valid and binding on or enforceable against any
Loan Party party to it, or any such Loan Party shall so state in writing; or




     (j) The Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably
likely to incur liability in excess of $50,000,000 in the aggregate as a result of one or
more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete
withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan;


then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
(other than Tranche A Advances by an Issuing Bank or a Lender pursuant to Section 2.04(b)) and of
the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Advances, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and
all such amounts shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances (other than Tranche A Advances by an Issuing Bank or a Lender pursuant to
Section 2.04(b)) and of the Issuing Banks to issue Letters of Credit shall automatically be
terminated and (B) the Advances, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.




44









 








          SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Agent may with the consent, or
shall at the request, of the Required Lenders, irrespective of whether it is taking any of the
actions described in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith
upon such demand the Borrower will, (a) pay to the Agent on behalf of the Lender Parties in same
day funds at the Agent’s office designated in such demand, for deposit in the L/C Cash Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding or (b) make such other arrangements in respect of the outstanding Letters of Credit as
shall be acceptable to the Required Lenders. If at any time the Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of any Person other than
the Agent and the Lender Parties or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, the Borrower will, forthwith upon demand by the Agent,
pay to the Agent, as additional funds to be deposited and held in the L/C Cash Collateral Account,
an amount equal to the excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the Agent determines to be free
and clear of any such right and claim. Upon the drawing of any Letter of Credit, to the extent
funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied to reimburse
the Issuing Banks to the extent permitted by applicable law.




ARTICLE VII




THE AGENT




          SECTION 7.01. Authorization and Action. Each Lender (in its capacities as a Lender
and Issuing Bank (as applicable)) hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and
all holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary to this Agreement
or applicable law. The Agent shall be fully justified in failing or refusing to take any action
under this Agreement and the other Loan Documents unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action except for its own gross negligence or
willful misconduct. The Agent agrees to give to each Lender prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement, provided that the Agent shall have no
liability for the failure or delay in giving such notices. The Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any agent or attorneys-in-fact
selected by the Agent in the absence of gross negligence or willful misconduct.




          SECTION 7.02. Agent’s Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may
treat the Lender that made any Advance as the holder of the Debt resulting therefrom until the
Agent receives and accepts an Assumption Agreement entered into by an Assuming Lender as provided
in Section 2.19 or 2.20, as the case may be, or an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may
consult with legal counsel (including counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible to any Lender for
any statements, warranties or representations (whether written or oral) made in or in connection
with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance,
observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or the existence at any time of any Default or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created


45









 







under or in connection with, this Agreement or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may be by telecopier)
believed by it to be genuine and signed or sent by the proper party or parties. The Agent shall be
entitled to rely, and shall be fully protected in relying in good faith, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram, telecopy or teletype
message, statement order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including without limitation counsel to the Borrower), independent
accountants and other experts selected by the Agent.




          SECTION 7.03. Wachovia and Affiliates. With respect to its Commitment, the Advances
made by it and the Note issued to it, Wachovia shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not the Agent; and the
term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Wachovia in its
individual capacity. Wachovia and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and generally engage in any
kind of business with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if Wachovia were not the
Agent and without any duty to account therefor to the Lenders. The Agent shall have no duty to
disclose information obtained or received by it or any of its Affiliates relating to the Borrower
or its Subsidiaries to the extent such information was obtained or received in any capacity other
than as Agent.




          SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other 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 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 this Agreement.




          SECTION 7.05. Indemnification. (a) The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Borrower), ratably according to the respective principal amounts of
the Revolving Credit Advances then owed to each of them (or if no Revolving Credit Advances are at
the time outstanding, ratably according to the respective amounts of their Revolving Credit
Commitments), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Agent under this Agreement (collectively,
the “Indemnified Costs”), provided that no Lender shall be liable for any portion
of the Indemnified Costs resulting from the Agent’s gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by
the Agent in connection with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether
any such investigation, litigation or proceeding is brought by the Agent, any Lender or a third
party.




          (b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly
reimbursed by the Borrower) from and against such Lender’s Pro Rata Share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank in any way relating to or arising out of this Agreement or any action
taken or omitted by such Issuing Bank hereunder or in connection herewith; provided,
however, that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Issuing Bank’s gross negligence or willful misconduct as found in a final, non-appealable
judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender
agrees to reimburse any such Issuing Bank promptly upon demand for its Pro Rata Share of any costs
and expenses (including, without limitation, fees and expenses of
counsel) payable by the Borrower under Section 8.04, to the extent that such Issuing Bank is
not promptly reimbursed for such costs and expenses by the Borrower.




46









 








          (c) The failure of any Lender to reimburse the Agent or any such Issuing Bank, as the case may
be, promptly upon demand for its ratable share of any amount required to be paid by the Lenders to
such Agent or such Issuing Bank, as the case may be, as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse such Agent or Issuing Bank, as the case may be, for
its ratable share of such amount, but no Lender shall be responsible for the failure of any other
Lender to reimburse the Agent or any such Issuing Bank, as the case may be, for such other Lender’s
ratable share of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.05 shall
survive the payment in full of principal, interest and all other amounts payable hereunder and
under the Notes.




          SECTION 7.06. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause
by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the
right to appoint a successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after the retiring
Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, discretion, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent’s resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.




          SECTION 7.07. Sub-Agent. The Sub-Agent has been designated under this Agreement to
carry out duties of the Agent. The Sub-Agent shall be subject to each of the obligations in this
Agreement to be performed by the Sub-Agent, and each of the Borrower and the Lenders agrees that
the Sub-Agent shall be entitled to exercise each of the rights and shall be entitled to each of the
benefits of the Agent under this Agreement as relate to the performance of its obligations
hereunder.




          SECTION 7.08. Other Agents. Each Lender hereby acknowledges that no syndication
agent, documentation agent or any other Lender designated as any “Agent” (other than the Agent) on
the signature pages hereof has any liability hereunder other than in its capacity as a Lender.




ARTICLE VIII




MISCELLANEOUS




          SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Revolving Credit Notes, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by the Required Lenders and each of the Lenders
affected thereby, do any of the following: (a) waive any of the conditions specified in Section
3.01, (b) increase the Commitments of the Lenders other than as provided in Section 2.19, (c)
reduce the principal of, or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, the
Advances (other than Competitive Bid Advances) or any fees or other amounts payable hereunder other
than as provided in Section 2.20, (e) change the percentage of the Revolving Credit Commitments,
the aggregate Available Amount of outstanding Letters of Credit or of the aggregate unpaid
principal amount of the Revolving Credit Advances that shall be required for the Lenders or any of
them to take any action hereunder, (f) reduce or limit the obligations of any Guarantor under
Section 1 of the Guaranty or release such Guarantor or otherwise limit such Guarantor’s liability
with respect to the obligations


47









 







owing to the Agent and the Lenders (other than to the extent permitted under the Guaranty) or
(g) amend this Section 8.01; and provided further that (x) no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Agent under this Agreement or any Note, (y)
no amendment, waiver or consent shall, unless in writing and signed by each Swing Line Bank, in
addition to the Lenders required above to take such action, affect the rights or obligations of the
Swing Line Banks in their capacities as such under this Agreement, and (z) no amendment, waiver or
consent shall, unless in writing and signed by the Issuing Banks in addition to the Lenders
required above to take such action, adversely affect the rights or obligations of the Issuing Banks
in their capacities as such under this Agreement.




          SECTION 8.02. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telecopier communication) and mailed, telecopied or
delivered, if to the Borrower, at its address at 2200 Old Germantown Road, Delray Beach, Florida
33445, Attention: Jenny Boese; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became
a Lender; and if to the Agent, at its address at 201 South College Street, Charlotte, NC
28288-0680, Attention: Syndication Agency Services; or, as to the Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the other parties and, as
to each other party, at such other address as shall be designated by such party in a written notice
to the Borrower and the Agent. All such notices and communications shall, when mailed or
telecopied, be effective when deposited in the mails or telecopied, respectively, except that
notices and communications to the Agent pursuant to Article II, III or VII shall not be effective
until received by the Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.




          SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.




          SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank meetings), transportation,
computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to
its rights and responsibilities under this Agreement. The Borrower further agrees to pay on demand
all costs and expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel
for the Agent and each Lender in connection with the enforcement of rights under this Section
8.04(a).




          (b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith) (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Borrower or any of its Subsidiaries or any Environmental Action relating in any way
to the Borrower or any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense resulted from such Indemnified Party’s gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, equityholders or creditors or
an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated


48









 







hereby are consummated. The Borrower also agrees not to assert any claim for special,
indirect, consequential or punitive damages against the Agent, any Lender, any of their Affiliates,
or any of their respective directors, officers, employees, attorneys and agents, on any theory of
liability, arising out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.




          (c) If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance or LIBO
Rate Advance is made by the Borrower to or for the account of a Lender (i) other than on the last
day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to
Section 2.09, 2.11 or 2.13, acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender other than on the last day of the
Interest Period for such Advance upon an assignment of rights and obligations under this Agreement
pursuant to Section 8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a) or
(ii) as a result of a payment or Conversion pursuant to Section 2.09, 2.11 or 2.13, the Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. If the amount of the Committed Currency purchased by any
Lender in the case of a Conversion or exchange of Advances in the case of Section 2.09 or 2.13
exceeds the sum required to satisfy such Lender’s liability in respect of such Advances, such
Lender agrees to remit to the Company such excess.




          (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.12, 2.15 and 8.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.




          SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the making of the request or the granting of the consent specified
by Section 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such Lender shall have made
any demand under this Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of such set-off
and application. The amount of any set-off under this Section 8.05 shall be denominated in
Dollars, and any amounts owing to the applicable Lender in any Committed Currency shall be in an
amount equal to the amount of Dollars that such Lender shall determine by reference to the spot
exchange rate determined by such Lender to be available (or such other reasonable method of
determining a rate of exchange as the Lender may deem applicable), such determination of such
amount of Dollars to be conclusive and binding in the absence of manifest error. The rights of
each Lender and its Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and its Affiliates may
have.




          SECTION 8.06. Binding Effect. This Agreement shall become effective (other than
Sections 2.01 and 2.03, which shall only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been executed by the Borrower and the Agent
and when the Agent shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that the Borrower shall
not have the right to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.




          SECTION 8.07. Assignments and Participations. (a) Each Lender may and, if demanded
by the Borrower (following a demand by such Lender pursuant to Section 2.12 or 2.15 or an assertion
by such Lender under Section 2.13) upon at least five Business Days’ notice to such Lender and the
Agent, will assign to one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or


49









 







a portion of its Revolving Credit Commitment, the Revolving Credit Advances owing to it and
the Revolving Credit Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all rights and obligations
under and in respect of one or more of the Tranche A Facility, the Tranche B Facility or the Letter
of Credit Facility, (ii) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Lender or an assignment of all of a Lender’s rights and obligations under
this Agreement, the amount of the Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof unless the Borrower and the Agent otherwise agree, (iii) each such assignment shall
be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower
pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the
Agent and shall be either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be
obligated to make any such assignment as a result of a demand by the Borrower pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more payments from either
the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other amounts payable to
such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,500 payable by the parties to each such assignment, provided,
however, that in the case of each assignment made as a result of a demand by the Borrower,
such recordation fee shall be payable by the Borrower except that no such recordation fee shall be
payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee
that is an existing Lender, and (vii) any Lender may, without the approval of the Borrower and the
Agent, assign all or a portion of its rights to any of its Affiliates. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights
and o
bligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have
the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under Section 2.12, 2.15
and 8.04 to the extent any claim thereunder relates to an event arising prior such assignment) and
be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).




          (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created under or in connection
with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by the Borrower of any of
its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender 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 this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as a Lender or as an Issuing
Bank, as the case may be.




50









 








          (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or
Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower.




          (d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitments of, and
principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.




          (e) Each Lender may sell participations to one or more banks or other entities (other than the
Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Tranche A Commitment or
Tranche B Commitment, the Advances owing to it and any Note or Notes held by it); provided,
however, that (i) such Lender’s obligations under this Agreement (including, without
limitation, its Commitments to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Agent 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 and (v) no participant under any such participation shall have any right to approve any
amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure
by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce
the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.




          (f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the confidentiality of any
Confidential Information relating to the Borrower received by it from such Lender.




          (g) The Issuing Banks may assign to an Eligible Assignee its rights and obligations or any
portion of the undrawn Letter of Credit Commitment of such Issuing Bank at any time;
provided, however, that (i) the amount of the Letter of Credit Commitment of the
assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date
of the Assignment and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, and (ii) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.




          (h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and any Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.




          SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall disclose any
Confidential Information to any other Person without the consent of the Borrower, other than (a) to
the Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and
advisors and, as contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and to any actual or prospective counterparty (or its advisors) to any
securitization, swap or derivative transaction relating to the Borrower, any of its Subsidiaries,
and the Borrower’s obligations under this Agreement, that are informed of the confidential nature
of the


51









 







Confidential Information and who agree to be bound by the terms and conditions of this Section
8.08, (b) as required by any law, rule or regulation or judicial process, provided that, to the
extent permitted by law, a request is made for confidential treatment of such information, (c) as
requested or required by any state, federal or foreign authority or examiner regulating banks or
banking and (d) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder.




          SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.




          SECTION 8.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 8.11. Judgment. (a) If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder in Dollars 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 Agent could purchase Dollars with
such other currency at the Sub-Agent’s principal office in London at 11:00 A.M. (London time) on
the Business Day preceding that on which final judgment is given.




          (b) If for the purposes of obtaining judgment in any court it is necessary to convert a sum
due hereunder in a Foreign Currency into Dollars, the parties 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 Agent could purchase such Foreign Currency with Dollars at the
Sub-Agent’s principal office in London at 11:00 A.M. (London time) on the Business Day preceding
that on which final judgment is given.




          (c) The obligation of the Borrower in respect of any sum due from it in any currency (the
“Primary Currency”) to any Lender or the Agent hereunder shall, notwithstanding any
judgment in any other currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be), of any sum adjudged to be so due in such
other currency, such Lender or the Agent (as the case may be) may in accordance with normal banking
procedures purchase the applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, the Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to the Borrower such excess.




          SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the Notes, 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 any such New York State court or, to the extent
permitted by law, in such federal court. The Borrower hereby agrees that service of process in any
such action or proceeding brought in the any such New York State court or in such federal court may
be made upon CT Corporation System at its offices at 1633 Broadway, New York, New York 10019 (the
“Process Agent”) and the Borrower hereby irrevocably appoints the Process Agent its
authorized agent to accept such service of process, and agrees that the failure of the Process
Agent to give any notice of any such service shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based thereon. The Borrower hereby
further irrevocably consents to the service of process in any action or proceeding in such courts
by the mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to
the Borrower at its address specified pursuant to Section 8.02. 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 shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or the Notes in the
courts of any jurisdiction.




52









 








          (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that 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 the
Notes in any New York State or federal court. 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.




          SECTION 8.13. Substitution of Currency. If a change in any Foreign Currency occurs
pursuant to any applicable law, rule or regulation of any governmental, monetary or multi-national
authority, this Agreement (including, without limitation, the definitions of Eurocurrency Rate and
LIBO Rate) will be amended to the extent determined by the Agent (acting reasonably and in
consultation with the Borrower) to be necessary to reflect the change in currency and to put the
Lenders and the Borrower in the same position, so far as possible, that they would have been in if
no change in such Foreign Currency had occurred.




          SECTION 8.14. No Liability of the Issuing Banks. The Borrower assumes all risks of
the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its
use of such Letter of Credit. Neither an Issuing Bank nor any of its officers or directors shall
be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing
Bank against presentation of documents that do not comply with the terms of a Letter of Credit,
including failure of any documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the Borrower shall have a claim against such Issuing Bank, and such
Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrower proves were caused by (i) such Issuing Bank’s
willful misconduct or gross negligence in determining whether documents presented under any Letter
of Credit comply with the terms of the Letter of Credit or (ii) such Issuing Bank’s willful failure
to make lawful payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further investigation, regardless
of any notice or information to the contrary.




          SECTION 8.15. Patriot Act. Each Lender hereby notifies the Borrower and each
Guarantor that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies each borrower, guarantor or grantor (the “Credit Parties”),
which information includes the name and address of each Credit Party and other information that
will allow such Lender to identify such Credit Party in accordance with the Act.




53









 








          SECTION 8.16. Waiver of Jury Trial. Each of the Borrower, the Agent, the Sub-Agent
and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this
Agreement or the Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.




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



	 	 	 	 	 
	 	OFFICE DEPOT, INC.

 	 
	 	By:  	/s/ Patricia McKay
 	 
	 	 	Name:  	Patricia McKay 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Jennifer Boese
 	 
	 	 	Name:  	Jennifer Boese 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



Initial Lenders




Letter of Credit Commitment




	 	 	 	 	 
	$300,000,000 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$50,000,000  	SUNTRUST BANK

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



$350,000,000 Total of the Letter of Credit Commitments





54









 





Swing Line Commitment




	 	 	 	 	 
	$75,000,000  	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$75,000,000  	CITICORP USA, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



$150,000,000 Total of the Swing Line Commitments




Tranche A Commitment




	 	 	 	 	 
	$90,000,000  	CITICORP USA, INC.

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$90,000,000  	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$90,000,000  	BNP PARIBAS

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$70,000,000  	BANK OF AMERICA, N.A.

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$70,000,000  	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 





55









 





	 	 	 	 	 
	$50,000,000  	FIFTH THIRD BANK

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 








	 	 	 	 	 
	$50,000,000  	FORTIS CAPITAL CORP.

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$50,000,000  	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$50,000,000  	SUNTRUST BANK

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$50,000,000  	UBS LOAN FINANCE LLC

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$50,000,000  	THE BANK OF NOVA SCOTIA

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$50,000,000  	MORGAN STANLEY BANK

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



56









 





	 	 	 	 	 
	$50,000,000  	 WELLS FARGO BANK, NATIONAL ASSOCIATION 	 
	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$50,000,000  	WILLIAM STREET COMMITMENT CORPORATION

(recourse only to assets of William Street

Commitment Corporation)

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$40,000,000  	U.S. BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



$900,000,000 Total of the Tranche A Commitments



57









 








Tranche B Commitment




	 	 	 	 	 
	$40,000,000  	SUMITOMO MITSUI BANKING CORPORATION

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$35,000,000  	UNION BANK OF CALIFORNIA, N.A.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	$25,000,000  	MIZUHO CORPORATE BANK, LTD.

 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



$100,000,000 Total of the Tranche B Commitments





58









 





SCHEDULE I

OFFICE DEPOT, INC.

FIVE YEAR CREDIT AGREEMENT

APPLICABLE LENDING OFFICES




	 	 	 	 	 
	Name of Initial Lender	 	Domestic Lending Office	 	Eurocurrency Lending Office
	Bank of America, N.A.

	 	1850 Gateway Boulevard
	 	1850 Gateway Boulevard
	 

	 	Concord, CA 94520
	 	Concord, CA 94520
	 

	 	Attn: Gardelyn Jayme
	 	Attn: Gardelyn Jayme
	 

	 	T: 925 675-7184
	 	T: 925 675-7184
	 

	 	F: 888 969-9232
	 	F: 888 969-9232
	 
	 	 	 	 
	The Bank of Nova Scotia

	 	New York Corporate Loans
	 	New York Corporate Loans
	 

	 	One Liberty Plaza, Floors 24-26
	 	One Liberty Plaza, Floors 24-26
	 

	 	New York, NY 10006
	 	New York, NY 10006
	 

	 	Attn. Tamara Mohan
	 	Attn. Tamara Mohan
	 

	 	Tel: (212) 225-5705
	 	Tel: (212) 225-5705
	 

	 	Fax: (212) 225-5709
	 	Fax: (212) 225-5709
	 
	 	 	 	 
	BNP Paribas

	 	1200 Smith, Suite 3100
	 	1200 Smith, Suite 3100
	 

	 	Houston, TX 77379
	 	Houston, TX 77379
	 

	 	Attn: Mike Shryock
	 	Attn: Mike Shryock
	 

	 	T: 713 982-1105
	 	T: 713 982-1105
	 

	 	F: 713 659-5228
	 	F: 713 659-5228
	 
	 	 	 	 
	Citibank, N.A.

	 	2 Penns Way
	 	2 Penns Way
	 

	 	New Castle, DE 19720
	 	New Castle, DE 19720
	 

	 	Attn: Laura Braach
	 	Attn: Laura Braach
	 

	 	T: 302 894-6058
	 	T: 302 894-6058
	 

	 	F: 302 894-6120
	 	F: 302 894-6120
	 
	 	 	 	 
	Fifth Third Bank

	 	38 Fountain Square
	 	38 Fountain Square
	 

	 	Mail Drop 109054
	 	Mail Drop 109054
	 

	 	Cincinnati, OH 45263
	 	Cincinnati, OH 45263
	 

	 	Attn: Sylvana Schafenberger
	 	Attn: Sylvana Schafenberger
	 

	 	T: 513 744-7018
	 	T: 513 744-7018
	 

	 	F: 513 744-5947
	 	F: 513 744-5947
	 
	 	 	 	 
	Fortis Capital Corp.

	 	301 Tresser Boulevard
	 	301 Tresser Boulevard
	 

	 	Stamford, CT 06901
	 	Stamford, CT 06901
	 

	 	Attn: Henk Raison
	 	Attn: Henk Raison
	 

	 	T: 203 705-5711
	 	T: 203 705-5711
	 

	 	F: 203 705-5899
	 	F: 203 705-5899
	 
	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	 	 	 
	 
	 	 	 	 
	Mizuho Corporate Bank, Ltd.

	 	1251 Avenue of the Americas
	 	1251 Avenue of the Americas
	 

	 	New York, NY 10020
	 	New York, NY 10020
	 

	 	Attn: Katsuya Noto
	 	Attn: Katsuya Noto
	 

	 	T: 212 282-4298
	 	T: 212 282-4298
	 

	 	F: 212 282-4250
	 	F: 212 282-4250
	 
	 	 	 	 
	Morgan Stanley Bank

	 	2500 Lake Park Blvd.
	 	2500 Lake Park Blvd.
	 

	 	Suite 300 C
	 	Suite 300 C
	 

	 	West Valley City, Utah 84120
	 	West Valley City, Utah 84120
	 

	 	Attn: Erma Dell’Aquila /
	 	Attn: Erma Dell’Aquila /
	 

	 	Edward Henley
	 	Edward Henley
	 

	 	T: 718 754-7286 / 7285
	 	T: 718 754-7286 / 7285
	 

	 	F: 718 754-7249 / 7250
	 	F: 718 754-7249 / 7250
	 
	 	 	 	 





 









 






	 	 	 	 	 
	Name of Initial Lender	 	Domestic Lending Office	 	Eurocurrency Lending Office
	The Royal Bank of Scotland plc

	 	101 Park Avenue
	 	101 Park Avenue
	 

	 	New York, NY 10178
	 	New York, NY 10178
	 

	 	Attn: Juanita Baird
	 	Attn: Juanita Baird
	 

	 	T: 212 401-1420
	 	T: 212 401-1420
	 

	 	F: 212 401-1336
	 	F: 212 401-1336
	 
	 	 	 	 
	Sumitomo Mitsui Banking
	 	 	 	 
	Corporation

	 	277 Park Avenue
	 	277 Park Avenue
	 

	 	New York, NY 10172
	 	New York, NY 10172
	 

	 	Attn: Courtney Whitlock
	 	Attn: Courtney Whitlock
	 

	 	T: 212 224-4335
	 	T: 212 224-4335
	 

	 	F: 212 224-5197
	 	F: 212 224-5197
	 
	 	 	 	 
	Suntrust Bank

	 	200 S. Orange Avenue, MC 1106
	 	200 S. Orange Avenue, MC 1106
	 

	 	Orlando, FL 32801
	 	Orlando, FL 32801
	 

	 	Attn: Debbie Joerger
	 	Attn: Debbie Joerger
	 

	 	T: 407 237-4393
	 	T: 407 237-4393
	 

	 	F: 407 237-5342
	 	F: 407 237-5342
	 
	 	 	 	 
	UBS Loan Finance LLC

	 	677 Washington Boulevard
	 	677 Washington Boulevard
	 

	 	Stamford, CT 06901
	 	Stamford, CT 06901
	 

	 	Attn: Frank Luzzi
	 	Attn: Frank Luzzi
	 

	 	T: 203 719-6391
	 	T: 203 719-6391
	 

	 	F: 203 719-3888
	 	F: 203 719-3888
	 
	 	 	 	 
	Union Bank of California, N.A.

	 	1980 Salem Street
	 	1980 Salem Street
	 

	 	Monterey Park, CA 91755
	 	Monterey Park, CA 91755
	 

	 	Attn: Ruby Gonzales
	 	Attn: Ruby Gonzales
	 

	 	T: 323 720-7055
	 	T: 323 720-7055
	 

	 	F: 323 724-6198
	 	F: 323 724-6198
	 
	 	 	 	 
	U.S. Bank, National Association

	 	US Bank Tower
	 	US Bank Tower
	 

	 	425 Walnut Street, 8th Floor
	 	425 Walnut Street, 8th Floor
	 

	 	Cincinnati, OH 45202
	 	Cincinnati, OH 45202
	 

	 	Attn: Frances W. Josephic
	 	Attn: Frances W. Josephic
	 

	 	T: 513 762-8973
	 	T: 513 762-8973
	 

	 	F: 513 632-4894
	 	F: 513 632-4894
	 
	 	 	 	 
	Wachovia Bank, National
	 	 	 	 
	Association

	 	201 South College Street
	 	201 South College Street
	 

	 	Charlotte, NC 28288
	 	Charlotte, NC 28288
	 

	 	Attn: Jessie Kirkendoll
	 	Attn: Jessie Kirkendoll
	 

	 	T: 704 715-1353
	 	T: 704 715-1353
	 

	 	F: 704 383-0288
	 	F: 704 383-0288
	 
	 	 	 	 
	Wells Fargo Bank, N.A.

	 	201 Third Street
	 	201 Third Street
	 

	 	A0187-081
	 	A0187-081
	 

	 	San Francisco, CA 94103
	 	San Francisco, CA 94103
	 

	 	Attn: Maria Belle Garcia
	 	Attn: Maria Belle Garcia
	 

	 	T: 415 477-5471
	 	T: 415 477-5471
	 

	 	F: 415 979-0675
	 	F: 415 979-0675
	 
	 	 	 	 
	William Street Commitment
	 	 	 	 
	Corporation

	 	85 Broad Street
	 	85 Broad Street
	 

	 	New York, NY 10004
	 	New York, NY 10004
	 

	 	Attn: Carolyn Roth
	 	Attn: Carolyn Roth
	 

	 	T: 212 357-8150
	 	T: 212 357-8150
	 

	 	F: 212 346-8964
	 	F: 212 346-8964






2









 





SCHEDULE 3.01(b)

DISCLOSED LITIGATION




None





 









 








Schedule 4.01(m)




Intercompany Loans




	 	 	 	 	 
	Lender	 	Borrower	 	Principal Amount
	U.S.

	 	Dutch
	 	EUR 388 million
	U.S.

	 	Japan
	 	JPY 11.4 billion
	Dutch

	 	Japan
	 	JPY 2.5 billion







 









 








Schedule 5.02(a)




Liens



EMC, Inc. ($600,000).



Certain computer equipment obtained through EMC Corporation.




 




IBM Credit Corporation ($2.9 million)



IBM Computer information processing equipment and related goods obtained through IBM Credit
Corporation.





 









 








Schedule 5.02 (e)




Subsidiary Debt



1. Local overdraft facility up to an amount not in excess of Yen 2.5 billion (approximately $20.6M
at the current Yen:Dollar exchange rate of 121.48).



2. Local credit line for standby L/Cs and bank guarantees of Euro 5 million for the benefit of an
Italian subsidiary.



3. Office Depot Israel — ILS 97,862,042 (USD 24,453,283 at current exchange rates)




 









 





EXHIBIT A-1 — FORM OF

REVOLVING CREDIT

PROMISSORY NOTE


 






			
	U.S.$___________________
	 	Dated: ________________________, 200_            






     FOR VALUE RECEIVED, the undersigned, OFFICE DEPOT, INC., a Delaware corporation (the
“Borrower”), HEREBY PROMISES TO PAY to the order of ________________________ (the
“Lender”) for the account of its Applicable Lending Office on the Termination Date
applicable to such Lender (each as defined in the Credit Agreement referred to below) the principal
sum of U.S.$[amount of the Lender’s Revolving Credit Commitments in figures] or, if less, the
aggregate principal amount of the Revolving Credit Advances made by the Lender to the Borrower
pursuant to the Five Year Credit Agreement dated as of May 25, 2007 among the Borrower, the Lender
and certain other lenders parties thereto, Citicorp USA, Inc. and BNP Paribas, as syndication
agents, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as documentation agents, Citigroup
Global Markets Inc., Wachovia Capital Markets, LLC and BNP Paribas Securities Corp., as joint lead
arrangers, Citigroup Global Markets Inc., as sole bookrunner, and Wachovia Bank, National
Association, as Agent for the Lender and such other lenders (as amended or modified from time to
time, the “Credit Agreement”; the terms defined therein being used herein as therein
defined) outstanding on such Termination Date.



     The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit
Advance from the date of such Revolving Credit Advance until such principal amount is paid in full,
at such interest rates, and payable at such times, as are specified in the Credit Agreement.



     Both principal and interest in respect of each Revolving Credit Advance (i) in Dollars are
payable in lawful money of the United States of America to the Agent at its account maintained at
201 South College Street, Charlotte, NC 28222, in same day funds and (ii) in any Committed Currency
are payable in such currency at the applicable Payment Office in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this Promissory Note.



     This Promissory Note is one of the Revolving Credit Notes referred to in, and is entitled to
the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for
the making of Revolving Credit Advances by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving Credit Advance being
evidenced by this Promissory Note, (ii) contains provisions for determining the Dollar Equivalent
of Revolving Credit Advances denominated in Committed Currencies and (iii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.



	 	 	 	 	 
	 	OFFICE DEPOT, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




 









 





ADVANCES AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 	Principal Paid	 	 	Unpaid Principal	 	 	Notation	 
	 	Date	 	 	Advance	 	 	or Prepaid	 	 	Balance	 	 	Made By	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 






 









 








EXHIBIT A-2 — FORM OF

COMPETITIVE BID

PROMISSORY NOTE



 




			
	U.S.$______________
	 	Dated: _______________, 200_     






     FOR VALUE RECEIVED, the undersigned, OFFICE DEPOT, INC., a Delaware corporation (the
“Borrower”), HEREBY PROMISES TO PAY to the order of _________________ (the
“Lender”) for the account of its Applicable Lending Office (as defined in the Five Year
Credit Agreement dated as of May 25, 2007 among the Borrower, the Lender and certain other lenders
parties thereto, Citicorp USA, Inc. and BNP Paribas, as syndication agents, Bank of America, N.A.
and JPMorgan Chase Bank, N.A., as documentation agents, Citigroup Global Markets Inc., Wachovia
Capital Markets, LLC and BNP Paribas Securities Corp., as joint lead arrangers, Citigroup Global
Markets Inc., as sole bookrunner, and Wachovia Bank, National Association, as Agent for the Lender
and such other lenders (as amended or modified from time to time, the “Credit Agreement”;
the terms defined therein being used herein as therein defined)), on _________________, 200_, the
principal amount of [U.S.$_________________] [for a Competitive Bid Advance in a Foreign Currency,
list currency and amount of such Advance].



     The Borrower promises to pay interest on the unpaid principal amount hereof from the date
hereof until such principal amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:



     Interest Rate: _________________% per annum (calculated on the basis of a year of ___days for the
actual number of days elapsed).



     Both principal and interest are payable in lawful money of _________________ to Wachovia, as agent,
for the account of the Lender at the office of Wachovia, at _________________ in same day funds.



     This Promissory Note is one of the Competitive Bid Notes referred to in, and is entitled to
the benefits of, the Credit Agreement. The Credit Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events.



     The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.



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



	 	 	 	 	 
	 	OFFICE DEPOT, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




 









 








EXHIBIT B-1 — FORM OF NOTICE OF

REVOLVING CREDIT BORROWING




Wachovia Bank, National Association., as Agent
  for
the Lenders parties
  to
the Credit Agreement
  referred
to below
  201
South College Street
  Charlotte,
NC 28288



[Date]



Attention: Syndication Agency Services



Ladies and Gentlemen:





     The undersigned, OFFICE DEPOT, INC., refers to the Five Year Credit Agreement, dated as of May
25, 2007 (as amended or modified from time to time, the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among the undersigned, certain Lenders
parties thereto, Citicorp USA, Inc. and BNP Paribas, as syndication agents, Bank of America, N.A.
and JPMorgan Chase Bank, N.A., as documentation agents, Citigroup Global Markets Inc., Wachovia
Capital Markets, LLC and BNP Paribas Securities Corp., as joint lead arrangers, Citigroup Global
Markets Inc., as sole bookrunner, and Wachovia Bank, National Association, as Agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Revolving Credit Borrowing under the Credit Agreement, and
in that connection sets forth below the information relating to such Revolving Credit Borrowing
(the “Proposed Revolving Credit Borrowing”) as required by Section 2.02(a) of the Credit
Agreement:




     (i) The Business
Day of the Proposed Revolving Credit Borrowing is _________________,
200_.




     (ii) The Type of Advances comprising the Proposed Revolving Credit Borrowing is [Base
Rate Advances] [Eurocurrency Rate Advances].




     (iii) The
Proposed Revolving Credit Borrowing shall consist of [Tranche A Advances]
[Tranche B Advances].




     (iv) The aggregate amount of the Proposed Revolving Credit Borrowing is
$_________________][list currency and amount of Revolving Credit Borrowing].




     [(v) The
initial Interest Period for each Eurocurrency Rate Advance made as part of the
Proposed Revolving Credit Borrowing is _________________ month[s].]



          The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Revolving Credit Borrowing:





     (A) the representations and warranties contained in each Loan Document (other than the
representations set forth in the last sentence of subsection 4.01(e) and in subsection
4.01(f)(i) of the Credit Agreement) are correct, before and after giving effect to the
Proposed Revolving Credit Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and



 









 






     (B) no event has occurred and is continuing, or would result from such Proposed
Revolving Credit Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.



	 	 	 	 	 
	 	Very truly yours,





OFFICE DEPOT, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




2









 








EXHIBIT B-2 — FORM OF NOTICE OF

COMPETITIVE BID BORROWING




Wachovia Bank, National Association., as Agent
  for
the Lenders parties
  to
the Credit Agreement
  referred
to below
  201
South College Street
  Charlotte,
NC 28288



[Date]



Attention: Syndication Agency Services



Ladies and Gentlemen:





     The undersigned, OFFICE DEPOT, INC., refers to the Five Year Credit Agreement, dated as of May
25, 2007 (as amended or modified from time to time, the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among the undersigned, certain Lenders
parties thereto, Citicorp USA, Inc. and BNP Paribas, as syndication agents, Bank of America, N.A.
and JPMorgan Chase Bank, N.A., as documentation agents, Citigroup Global Markets Inc., Wachovia
Capital Markets, LLC and BNP Paribas Securities Corp., as joint lead arrangers, Citigroup Global
Markets Inc., as sole bookrunner, and Wachovia Bank, National Association, as Agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement
that the undersigned hereby requests a Competitive Bid Borrowing under the Credit Agreement, and in
that connection sets forth the terms on which such Competitive Bid Borrowing (the “Proposed
Competitive Bid Borrowing”) is requested to be made:



	 	 	 	 	 
	(A)

	 	Date of Competitive Bid Borrowing
	 	___________________________
	(B)

	 	Amount of Competitive Bid Borrowing
	 	___________________________
	(C)

	 	[Maturity Date] [Interest Period]
	 	___________________________
	(D)

	 	Interest Rate Basis
	 	___________________________
	(E)

	 	Day Count Convention
	 	___________________________
	(F)

	 	Interest Payment Date(s)
	 	___________________________
	(G)

	 	Currency
	 	___________________________
	(H)

	 	___________________________
	 	___________________________






          The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Competitive Bid Borrowing:





     (a) the representations and warranties contained in each Loan Document (other than the
representations set forth in the last sentence of subsection 4.01(e) and in subsection
4.01(f)(i) of the Credit Agreement) are correct, before and after giving effect to the
Proposed Competitive Bid Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;




     (b) no event has occurred and is continuing, or would result from the Proposed
Competitive Bid Borrowing or from the application of the proceeds therefrom, that
constitutes a Default; and




     (c) the aggregate amount of the Proposed Competitive Bid Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is within the aggregate
amount of the Unused Commitments of the Lenders.



          The undersigned hereby confirms that the Proposed Competitive Bid Borrowing is to be made
available to it in accordance with Section 2.03(a)(v) of the Credit Agreement.




	 	 	 	 	 
	 	Very truly yours,





OFFICE DEPOT, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




 









 








EXHIBIT B-3 — FORM OF NOTICE OF

SWING LINE BORROWING




[Name of Swing Line Bank]


Wachovia Bank, National Association., as Agent
  for
the Lenders parties
  to
the Credit Agreement
  referred
to below
  201
South College Street
  Charlotte,
NC 28288



[Date]



Attention: Syndication Agency Services



Ladies and Gentlemen:





     The undersigned, OFFICE DEPOT, INC., refers to the Five Year Credit Agreement, dated as of May
25, 2007 (as amended or modified from time to time, the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among the undersigned, certain Lenders
parties thereto, Citicorp USA, Inc. and BNP Paribas, as syndication agents, Bank of America, N.A.
and JPMorgan Chase Bank, N.A., as documentation agents, Citigroup Global Markets Inc., Wachovia
Capital Markets, LLC and BNP Paribas Securities Corp., as joint lead arrangers, Citigroup Global
Markets Inc., as sole bookrunner, and Wachovia Bank, National Association, as Agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Swing Line Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Swing Line Borrowing (the
“Proposed Swing Line Borrowing”) as required by Section 2.02(b) of the Credit Agreement:




     (i) The Business
Day of the Proposed Swing Line Borrowing is _______________, 200__.




     (ii) The aggregate amount of the Proposed Swing Line Borrowing is $___.




     (iii) The
maturity of the Proposed Swing Line Borrowing is _______________, 200__.
[insert a date no later than the tenth day after the requested date of the Proposed Swing
Line Borrowing].



          The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Swing Line Borrowing:





     (A) the representations and warranties contained in each Loan Document (other than the
representations set forth in the last sentence of subsection 4.01(e) and in subsection
4.01(f)(i) of the Credit Agreement) are correct, before and after giving effect to the
Proposed Swing Line Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and




     (B) no event has occurred and is continuing, or would result from such Proposed Swing
Line Borrowing or from the application of the proceeds therefrom, that constitutes a
Default.



	 	 	 	 	 
	 	Very truly yours,





OFFICE DEPOT, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




 









 








EXHIBIT C — FORM OF

ASSIGNMENT AND ACCEPTANCE




          Reference is made to the Five Year Credit Agreement dated as of May 25, 2007 (as amended or
modified from time to time, the “Credit Agreement”) among OFFICE DEPOT, INC., a Delaware
corporation (the “Borrower”), the Lenders (as defined in the Credit Agreement), Citicorp
USA, Inc. and BNP Paribas, as syndication agents, Bank of America, N.A. and JPMorgan Chase Bank,
N.A., as documentation agents, Citigroup Global Markets Inc., Wachovia Capital Markets, LLC and BNP
Paribas Securities Corp., as joint lead arrangers, Citigroup Global Markets Inc., as sole
bookrunner, and Wachovia Bank, National Association, as administrative agent for the Lenders (the
“Agent”). Terms defined in the Credit Agreement are used herein with the same meaning.




          The “Assignor” and the “Assignee” referred to on Schedule I hereto agree as follows:




          1. The Assignor hereby sells and assigns to the Assignee, without recourse, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the Assignor’s rights and
obligations under the Credit Agreement as of the date hereof (other than in respect of Competitive
Bid Advances and Competitive Bid Notes) equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Credit Agreement (other than in respect
of Competitive Bid Advances and Competitive Bid Notes) together with participations in Letters of
Credit held by the Assignor on the date hereof. After giving effect to such sale and assignment,
the Assignee’s Commitment and the amount of the Revolving Credit Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.




          2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with the Credit Agreement or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by the Borrower of any of
its obligations under the Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Revolving Credit Note[, if any,] held by the Assignor [and requests
that the Agent exchange such Revolving Credit Note for a new Revolving Credit Note payable to the
order of [the Assignee in an amount equal to the Revolving Credit Commitment assumed by the
Assignee pursuant hereto or new Revolving Credit Notes payable to the order of the Assignee in an
amount equal to the Revolving Credit Commitment assumed by the Assignee pursuant hereto and] the
Assignor in an amount equal to the Revolving Credit Commitment retained by the Assignor under the
Credit Agreement[, respectively,] as specified on Schedule 1 hereto].




          3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the 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 Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and (vi) attaches any U.S.
Internal Revenue Service forms required under Section 2.15 of the Credit Agreement.




          4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date for this Assignment and
Acceptance (the “Effective Date”) shall be the date of acceptance hereof by the Agent, unless
otherwise specified on Schedule 1 hereto.





 









 








          5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.




          6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the
Agent shall make all payments under the Credit Agreement and the Revolving Credit Notes in respect
of the interest assigned hereby (including, without limitation, all payments of principal, interest
and facility fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Revolving Credit Notes for
periods prior to the Effective Date directly between themselves.




          7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.




          8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier
shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.




          IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment
and Acceptance to be executed by their officers thereunto duly authorized as of the date specified
thereon.





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Schedule 1

to

Assignment and Acceptance




	 	 	 
	Percentage interest assigned:

	 	___%
	Assignee’s Tranche A Commitment:

	 	$___
	Aggregate outstanding principal amount of Tranche A Advances assigned:

	 	$___
	Assignee’s Tranche B Commitment:

	 	$___
	Aggregate outstanding principal amount of Tranche B Advances assigned:

	 	$___
	Principal amount of Revolving Credit Note payable to Assignee:

	 	$___
	Principal amount of Revolving Credit Note payable to Assignor:

	 	$___
	Effective Date*: ________________, 200_
	 	 






	 	 	 	 	 
	 	[NAME OF ASSIGNOR], as Assignor

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 
	 	Dated:  _______________, 200_ 	 
	 



	 	 	 	 	 
	 	[NAME OF ASSIGNEE], as Assignee

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 
	 	Dated:  _______________, 200_ 	 
	 
	 	Domestic Lending Office:	 
	 	 	[Address]
	 
	 
	 	Eurocurrency Lending Office:	 
	 	 	[Address]
	 
	 







 




			
	*	 	This date should be no earlier than five
Business Days after the delivery of this Assignment and Acceptance to the
Agent.




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	Accepted [and Approved]** this

___day of ____________, 200_



WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent

 	 
	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	[Approved this ___day

of ____________, 200_

OFFICE DEPOT, INC.

 	 
	By:  	 	]* 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	**	 	Required if the Assignee is an Eligible
Assignee solely by reason of clause (iii) of the definition of “Eligible
Assignee”.
	 
	*	 	Required if the Assignee is an Eligible
Assignee solely by reason of clause (iii) of the definition of “Eligible
Assignee”.




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EXHIBIT E — FORM OF

OPINION OF COUNSEL

FOR THE BORROWER



[Effective Date]




To each of the Lenders parties
  to
the Five Year Credit Agreement dated
  as
of May 25, 2007
  among
Office Depot, Inc.,
  said
Lenders and Wachovia Bank, National Association,
  as
Agent for said Lenders, and
  to
Wachovia Bank, National Association, as Agent




Office Depot, Inc.



Ladies and Gentlemen:





     This opinion is furnished to you pursuant to Section 3.01(h)(v) of the Five Year Credit
Agreement, dated as of May 25, 2007 (the “Credit Agreement”), among Office Depot, Inc. (the
“Borrower”), the Lenders parties thereto, Citicorp USA, Inc. and BNP Paribas, as
syndication agents, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as documentation agents,
Citigroup Global Markets Inc., Wachovia Capital Markets, LLC and BNP Paribas Securities Corp., as
joint lead arrangers, Citigroup Global Markets Inc., as sole bookrunner, and Wachovia Bank,
National Association, as Agent for said Lenders. Terms defined in the Credit Agreement are used
herein as therein defined.



     We have acted as counsel for the Borrower and the other Loan Parties in connection with the
preparation, execution and delivery of the Credit Agreement.



     In that connection, we have examined:




     (1) The Credit Agreement.




     (2) The documents furnished by the Loan Parties pursuant to Article III of the Credit
Agreement.




     (3) The [Articles] [Certificate] of Incorporation and all amendments thereto (the
“Charter”) of each Loan Party.




     (4) The by-laws and all amendments thereto (the “By-laws”) of each Loan Party.




     (5) A certificate of the Secretary of State of Delaware, dated _______________, 2007,
attesting to the continued corporate existence and good standing of the Borrower in that
State.


We have also examined the originals, or copies certified to our satisfaction, of the documents
listed in a certificate of the chief financial officer of the Borrower, dated the date hereof (the
“Certificate”), certifying that the documents listed in such certificate are all of the
indentures, loan or credit agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments, and all of the orders, writs, judgments, awards,
injunctions and decrees, that affect or purport to affect the Borrower’s right to borrow money or
any Loan Party’s


 









 






obligations under the Loan Documents. In addition, we have examined the originals, or copies
certified to our satisfaction, of such other corporate records of the Loan Parties, certificates of
public officials and of officers of the Loan Parties, and agreements, instruments and other
documents, as we have deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, we have, when relevant facts were not independently
established by us, relied upon certificates of the Borrower or its officers or of public officials.
We have assumed the due execution and delivery, pursuant to due authorization, of the Credit
Agreement by the Initial Lenders and the Agent.




     Our opinions expressed below are limited to the law of the State of New York, the General
Corporation Law of the State of Delaware and the Federal law of the United States.



     Based upon the foregoing and upon such investigation as we have deemed necessary, we are of
the following opinion:




     1. Each Loan Party is a duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization.




     2. The execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party, and the consummation of the transactions contemplated thereby, are
within such Loan Party’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Charter or the By-laws of such Loan Party or
(ii) any law, rule or regulation applicable to such Loan Party (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve System) or (iii)
any contractual or legal restriction contained in any document listed in the Certificate or,
to the best of our knowledge, contained in any other similar document. Each Loan Document
has been duly executed and delivered on behalf of each Loan Party party thereto.




     3. No authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for the due
execution, delivery and performance by any Loan Party of the Loan Documents to which it is a
party.




     4. The Credit Agreement is, and after giving effect to the initial Borrowing, the Notes
will be, legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms. The Guaranty is the legal, valid and
binding obligation of each Guarantor enforceable against such Guarantor in accordance with
its terms.




     5. To the best of our knowledge, there are no pending or overtly threatened actions or
proceedings against the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator that purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or any of the Notes or the consummation of the
transactions contemplated thereby or[, except as described in Exhibit 3.01(d) to the Credit
Agreement,] that are likely to have a materially adverse effect upon the financial condition
or operations of the Borrower or any of its Subsidiaries.




     The opinions set forth above are subject to the following qualifications:




     (a) Our opinion in paragraph 4 above as to enforceability is subject to the effect of
any applicable bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar law affecting creditors’ rights
generally.




     (b) Our opinion in paragraph 4 above as to enforceability is subject to the effect of
general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).




     (c) We express no opinion as to (i) Section 2.14 of the Credit Agreement insofar as it
provides that any Lender purchasing a participation from another Lender pursuant thereto may
exercise set-off or similar rights with respect to such participation and (ii) the effect of the law
of any jurisdiction other than the State of New York wherein any Lender may be located or
wherein enforcement of the Loan Documents may be sought that limits the rates of interest
legally chargeable or collectible.


Very truly yours,





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