Amended & Restated Continuing Guaranty Agreement



 











Exhibit 10.4




AMENDED AND RESTATED CONTINUING GUARANTY AGREEMENT




     THIS AMENDED AND RESTATED CONTINUING GUARANTY AGREEMENT (this “Guaranty”) is made this 23rd
day of December, 2005, by the Guarantors identified below (individually referred to as a
“Guarantor” and collectively as the “Guarantors”), in favor of each of the financial institutions
(collectively, the “Lenders”) now or hereafter parties to the Second Amended Credit Agreement (as
defined below) and BANK OF AMERICA, N.A., a national banking association, as administrative and
collateral agent (together with its successors in such capacity, the “Agent”) for each of the
Lenders (Agent and each Lender being referred to individually as a “Guaranteed Party” and
collectively as the “Guaranteed Parties”).



Recitals:




     Agent, Lenders, Applica Incorporated, a Florida corporation (hereinafter “Borrower”), Applica
Canada Corporation, a Nova Scotia Corporation and subsidiary of Borrower, Guarantors and certain
other entities are parties to a Second Amended and Restated Credit Agreement dated the date hereof
(as at any time amended, modified, renewed or extended, the “Second Amended Credit Agreement”),
which amends and restates a certain Amended and Restated Credit Agreement dated as of November 17,
2004 among certain of the parties (as amended, the “Prior Credit Agreement). Pursuant to the
Second Amended Credit Agreement, Lenders have agreed to make loans and other extensions of credit
to or for the benefit of Borrower on the terms and subject to all of the conditions set forth in
the Credit Agreement. Capitalized terms used in these Recitals and elsewhere in this Guaranty,
unless otherwise defined, shall have the meanings ascribed to them in the Second Amended Credit
Agreement.



     Pursuant to a Continuing Guaranty Agreement dated December 28, 2001 (the “Existing Guaranty
Agreement”), Guarantors have guaranteed the payment and performance of all of liabilities and
obligations of Borrowers to Agent and Lenders under the Prior Credit Agreement and related
documents.



     As a condition to their extension of any credit to Borrower under the Second Amended Credit
Agreement, Guaranteed Parties have required that Guarantors agree to amend and restate the Existing
Guaranty Agreement, so that, as amended and restated, the Existing Credit Agreement will read as
hereinafter set forth. To induce each of the Guaranteed Parties to extend credit to Borrower under
the Second Amended Credit Agreement in accordance with the terms thereof, Guarantor has agreed to
execute and deliver this Guaranty.



Agreement:



NOW, THEREFORE, for Ten Dollars ($10.00) in hand paid and to induce the Guaranteed Parties to make
loans or otherwise extend credit to Borrower from time to time as set forth in the Second Amended
Credit Agreement, and for other good and valuable consideration, Guarantors hereby, jointly and
severally, unconditionally and absolutely guarantee to the Guaranteed Parties the due and punctual
payment, performance and discharge (whether upon stated maturity, demand, acceleration or otherwise
in accordance with the terms thereof) of all of the Obligations, whether direct or indirect,
absolute or contingent, secured or unsecured, due or to become due, joint or several, primary or
secondary, liquidated or unliquidated, now existing or hereafter incurred, created or arising and
howsoever evidenced, regardless of whether recovery upon any of such Obligations becomes barred by
any statute of limitations, or is or becomes invalid or
unenforceable for any other reason, or is unrecoverable in any




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proceeding under the Bankruptcy Code
of an Obligated Party (whether pursuant to 11 U.S.C. § 506 or otherwise); provided,
however, that the obligations of each Guarantor hereunder shall be limited to an aggregate
amount equal to the greatest amount that would not render its obligations hereunder subject to
avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable
state law.




     EACH GUARANTOR DOES HEREBY WAIVE: notice of Agent’s or any Lender’s acceptance hereof; notice
of the extension of credit from time to time by any Guaranteed Party to Borrower and the creation,
existence or acquisition of any Obligations; notice of the amount of Obligations outstanding from
time to time, subject, however, to each Guarantor’s right to make inquiry of Agent to ascertain the
amount of Obligations at any reasonable time; notice of any adverse change in Borrower’s or any
other Obligated Party’s financial condition or of any other fact which might increase such
Guarantors’ risk; notice of presentment for payment, demand, protest and notice thereof as to any
instrument; notice of any Default, Event of Default or acceleration and all other notices and
demands to which such Guarantor might otherwise be entitled; any defense that Borrower may at any
time assert based upon the invalidity or unenforceability of any of the Loan Documents, the statute
of limitations, the statute of frauds, failure of consideration, fraud, bankruptcy, lack of legal
capacity, usury, or accord and satisfaction; any right to contest the commercial reasonableness of
the disposition of any or all Collateral; any right such Guarantor may have, by statute or
otherwise, to require any of the Guaranteed Parties to institute suit against Borrower or any other
Obligated Party after notice or demand from such Guarantor or to seek recourse first against
Borrower or any other Obligated Party, or to realize upon any Collateral, as a condition to
enforcing a Guarantor’s liability and obligations hereunder; any defense or claim that any Person
purporting to bind Borrower to the payment of any Obligations did not have actual or apparent
authority to do so; any right to appraisement, valuation, stay of execution, or notice of election
to declare due the amount of any Obligations of Borrower with regard to Agent’s enforcement of any
Lien or other interest Agent, for the benefit of the Guaranteed Parties, may hold in any real or
personal property of Borrower; and any defense or claim that any other act or failure to act by any
Guaranteed Party had the effect of increasing such Guarantor’s risk of payment. To the fullest
extent permitted by any applicable law, each Guarantor hereby also expressly waives any and all
rights or defenses arising by reason of (i) any “one action” or “anti-deficiency” law which would
otherwise prevent any Guaranteed Party from bringing any action, including any claim for a
deficiency, or exercising any other right or remedy (including any right of setoff) against
Guarantors before or after the Guaranteed Parties’ commencement or completion of any foreclosure
action, whether by judicial action, by exercise of power of sale or otherwise or (ii) any other law
which in any other manner would otherwise require any election of remedies by any Guaranteed Party.
Except as otherwise prohibited by any applicable law, each Guarantor hereby waives any right that
it may have to claim or recover in any litigation respecting this Guaranty any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to, actual damages.
Each Guarantor shall make all payments hereunder for the benefit of the Guaranteed Parties, free
and clear of, and without deduction or withholding for or on account of, any setoff, counterclaim,
defense, duties, taxes, levies, imposts, fees, deductions, restrictions or conditions of any kind.



     If Borrower fails to pay any Obligations on the due date thereof (whether due on demand, at
stated maturity, upon acceleration or otherwise) or any other Event of Default under the Second
Amended Credit Agreement occurs or exists, then, all of the Obligations shall, at the election of
Agent, become immediately due and payable hereunder as to Guarantors and Agent shall be entitled to
enforce the obligations of Guarantors hereunder for the benefit of the Guaranteed Parties.
Guarantors agree to pay all reasonable expenses incurred by the Guaranteed Parties in connection
with enforcement of the Guaranteed Parties’ right under this Guaranty, including court costs,
collection charges and reasonable



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attorneys’ fees. Guarantors acknowledge and agree that Agent is authorized and empowered to enforce this
Guaranty for the benefit of all of the Guaranteed Parties and to collect from Guarantors the full
amount of the Obligations outstanding from time to time, in Agent’s own name and without the
necessity of joining any other Guaranteed Party in any action, suit or other proceeding to enforce
this Guaranty.




     Agent shall have, for the benefit of the Guaranteed Parties, a Lien upon and right of setoff
to any and all credits and any and all other property of each Guarantor, now or at any time
whatsoever with or in the possession of any of the Guaranteed Parties or anyone holding for any
Guaranteed Party as security for any and all Obligations and the indebtedness and obligations of
Guarantors hereunder.



     Each Guarantor consents and agrees that, without notice to or by Guarantors and without
reducing, impairing or otherwise affecting the liability or obligations of Guarantors hereunder,
Guaranteed Parties may (with or without consideration): compromise or settle, extend the period of
duration or the time for the payment, discharge or performance of any of the Obligations; increase
the amount of the Obligations; refuse to enforce any of the Obligations for release any Person
(including any Obligated Party) for liability for the payment of all or any party of the
Obligations; increase, decrease or otherwise alter the rate of interest payable with respect to the
Obligations or grant other indulgences to Borrower in respect thereof; amend or modify in any
manner, or terminate or release, any of the Loan Documents or any other agreements evidencing,
securing or otherwise relating to the Obligations (other than this Guaranty); release, surrender,
exchange, modify or impair, or consent to the sale, transfer or other disposition of, any and all
Collateral or other property at any time securing (directly or indirectly) any of the Obligations
or on which the Guaranteed Parties at any time may have a Lien; extend the time of payment of any
Collateral consisting of Accounts or other rights to the payment of money; fail or refuse to
perfect or maintain the perfection of any Lien; subordinate the payment of any of the Obligations
or any Lien securing the same; refuse to enforce its rights, or make any comprise or settlement or
agreement therefor, in respect of any such Collateral, deposits and property, or with any party to
the Obligations, or with any other Person whatsoever; or release or substitute any Obligated Party.



     None of the Guaranteed Parties shall be under any obligation to marshal any assets in favor of
Guarantors or against or in payment of any of the Obligations. If and to the extent any Guaranteed
Party receives any payment on account of any of the Obligations (whether from Borrower or any other
Obligated Party or from the sale or other disposition of any Collateral) and such payment or any
part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, receiver or any other Person in any proceeding under the
Bankruptcy Code or under any applicable law, then the part of the Obligations intended to be
satisfied shall be revived and continued in full force and effect as if said payment had not been
made. The foregoing provisions of this paragraph shall survive any termination or revocation of
this Guaranty.



     Each Guarantor represents and warrants to the Guaranteed Parties that, as of the date of this
Guaranty, the fair saleable value of such Guarantor’s assets exceeds its liabilities; such
Guarantor is meeting current liabilities as they mature; the financial statements of such Guarantor
furnished to the Guaranteed Parties have been prepared in accordance with the GAAP, except, in the
case of interim statements, for the absence of footnotes and normal year-end adjustments, and
fairly present the financial condition and results of operation as of the dates and for the periods
covered; since the date of said financial statements there has been no material adverse change in
the financial condition of such Guarantor; there are not now pending any material court or
administrative proceedings or undischarged judgments against such Guarantor and no federal or state
tax liens have been filed or threatened against such Guarantor; and such Guarantor is not in
default or claimed default under any agreement for



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borrowed money.




     This Guaranty is a primary, immediate and original obligation of each Guarantor; is an
absolute, unconditional, continuing and irrevocable guaranty of payment of the Obligations and not
of its collectibility only; is not contingent upon the exercise or enforcement by the Guaranteed
Parties of whatever remedies the Guaranteed Parties may have against Borrower or otherwise or the
enforcement of any Lien or realization upon any Collateral; and shall remain in full force and
effect without regard to future changes in conditions, including change of law or any invalidity or
unenforceability of any of the Obligations or Loan Documents. This Guaranty shall be in addition to
any other present or future guaranty or other security for any of the Obligations, shall not be
prejudiced or unenforceable by the invalidity of any such other guaranty or security and is not
conditioned upon or subject to the execution by any other Person of this Guaranty or any other
guaranty or suretyship agreement.



     Agent, for and on behalf of the Guaranteed Parties, shall have the right to seek recourse
against Guarantors to the full extent provided for herein and in any other Loan Document and
against Borrower and each other Obligated Party to the full extent provided for in any of the Loan
Documents. No election to proceed in one form of action or proceeding, or against any party, or on
any obligation, shall constitute a waiver of the Agent’s right to proceed in any other form of
action or proceeding against other parties, unless Agent has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no action or
proceeding by the Guaranteed Parties against Borrower or any other Obligated Party under any Loan
Document shall serve to diminish the liability of Guarantors except to the extent the Guaranteed
Parties realized payment by such action or proceeding.



     Each Guarantor is fully aware of the financial condition and business of Borrower and each
other Obligated Party. Each Guarantor delivers this Guaranty based solely upon its own independent
investigation and in no part upon any representation or statement of any of the Guaranteed Parties
with respect thereto. Each Guarantor is in a position to and hereby assumes full responsibility for
obtaining any additional information concerning Borrower’s or any other Obligated Party’s financial
condition as such Guarantor may deem material to its obligations hereunder and no Guarantor is
relying upon, nor expecting the Guaranteed Parties to furnish a Guarantor any information in any
Guaranteed Party’s possession concerning, Borrower’s financial condition, operations or business
prospects. Each Guarantor hereby knowingly accepts the full range of risks encompassed within a
contract of “Guaranty,” which risks include, without limitation, the possibility that Borrower will
contract additional Obligations for which such Guarantor may be liable hereunder after Borrower’s
financial condition or ability to pay its lawful debts when they fall due has deteriorated.



     Each Guarantor agrees that this Guaranty shall continue in full force and effect until all of
the Obligations have been fully paid and discharged and all Commitments of Lenders have been
terminated. If for any reason Borrower has no legal existence or is under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have become unrecoverable from
Borrower by reason of any bankruptcy or other insolvency proceeding or by other operation of law or
for any other reason, this Guaranty shall nevertheless be binding upon Guarantors. If acceleration
of the time for payment of any of the Obligations is stayed as the result of any bankruptcy or
other insolvency proceeding or any other reason, all such amounts otherwise subject to acceleration
under the terms of the Loan Documents shall be immediately due and payable by Guarantors.



     To the fullest extent permitted by any applicable law, each Guarantor hereby waives the right
to revoke or terminate this Guaranty prior to payment in full of the Obligations and termination of
the Commitments. If, notwithstanding the foregoing waiver, a Guarantor shall nevertheless have a
right



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under applicable law to terminate or revoke this Guaranty, which right cannot be waived by
such Guarantor, such termination or revocation shall not be effective until a written notice of
such termination or revocation, specifically referring to this Guaranty and signed by such
Guarantor, is actually received by an officer of Agent who is familiar with Borrower’s account with
Guaranteed Parties and this Guaranty; but any termination or revocation shall not affect the
obligation of such Guarantor (or any other Guarantor) or any Guarantor’s successors or assigns with
respect to any of the Obligations owing to Guaranteed Parties and existing at the time of the
receipt by Agent of such revocation or to arise out of or in connection with any transactions
theretofore entered into by Guaranteed Parties with or for the account of Borrower, and Agent shall
be empowered to enforce this Guaranty with respect to all such Obligations. If Guaranteed Parties
make loans or other extensions of credit to or for the benefit of Borrower or take other action
after the termination or revocation by a Guarantor, but prior to Agent’s receipt of notice of
termination or revocation, then the rights of the Guaranteed Parties hereunder with respect thereto
shall be the same as if such termination or revocation had not occurred.




     All rights, benefits and privileges herein and hereby conferred upon Agent shall vest in and
be enforceable by them and their respective successors and assigns. This Guaranty shall be binding
upon Guarantors and upon their respective successors and assigns.



     To the extent any performance of this Guaranty would violate any usury statute or other any
applicable law, the obligation to be fulfilled shall be reduced to the limit legally permitted, so
that this Guaranty shall not require any performance in excess of the limit legally permitted, but
such obligations shall be fulfilled to the limit of the legal validity. The provisions of this
paragraph shall control every other provision of this Guaranty.



     This Guaranty expresses the entire understanding of the parties hereto with respect to the
subject matter hereof and may not be changed orally, and no obligations of Guarantors can be
released or waived by any of the Guaranteed Parties, except by a writing signed by a duly
authorized officer of Agent.



     Each Guarantor hereby subordinates its right to receive and be paid any present or future
liabilities, debts or obligations of Borrower to such Guarantor to the full and final payment of
the Obligations and termination of all of the Commitments. Until all of the Obligations have been
paid in full and the Commitments have been terminated, no Guarantor shall assert any claim, right
or remedy (whether or not arising in equity, by contract or any applicable law) against Borrower or
any other Person (including another Obligated Party) by reason of a Guarantor’s payment or other
performance hereunder. Without limiting the generality of the foregoing, each Guarantor hereby
subordinates to the full and final payment of the Obligations any and all legal or equitable rights
or claims that such Guarantor may have to reimbursement, subrogation, indemnity and exoneration and
agrees that such Guarantor shall have no recourse to any assets or property of Borrower (including
any Collateral) and no right of recourse against or contribution from any other Person in any way
directly or contingently liable for any of the Obligations, whether any of such rights arise under
contract, in equity or under any applicable law, until all of the Obligations have been paid in
full and the Commitments have been terminated.



     Each Guarantor that shall make a payment under this Guaranty (hereinafter, a “Paying
Guarantor”) shall have the right to obtain contribution, in an amount determined as set forth
below, from the other Guarantors that have not made payments under this Guaranty at least
proportionately equal (on the basis of their respective Allocable Percentages, as such term is
hereinafter defined) in amount to the payments made by the Guarantor seeking contribution. The
liability of the Guarantors hereunder to make
contribution to a Paying Guarantor as aforesaid shall be absolute and shall not be affected or
impaired by any defense, counterclaim or setoff that Borrower or any Guarantor may have or assert
against



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Guaranteed Parties under this Guaranty, or by any failure, neglect or omission on the part
of Guaranteed Parties to realize upon any Collateral or to enforce payment for the Obligations from
any Person, or by the release or discharge of any Collateral, by the release or discharge of
Borrower from its obligations or by the release or discharge of any Guarantor from its obligations
under this Guaranty (whether any such release is granted by Guaranteed Parties or by operation of
law). Any proceeds received by a Guaranteed Party from a foreclosure sale of any assets of a
Guarantor securing payment of the Obligations shall be deemed a payment by such Guarantor for
purposes hereof. Notwithstanding the foregoing, rights of contribution among Guarantors shall be
subordinated, as hereinabove provided, to the full and final payment of all of the Obligations and
termination of the Commitments.




     Each Paying Guarantor entitled to contribution hereunder shall be entitled to receive from
each of the other Guarantors an amount equal to (i) the product (if a positive number) arrived at
by multiplying the sum of all payments made by the Paying Guarantor to the Guaranteed Parties under
this Guaranty by the Allocable Percentage of the Guarantor from whom contribution is sought,
less (ii) the amount, if any, actually paid to Guaranteed Parties under this Guaranty by
the Guarantor from whom contribution is sought (said last mentioned amount, which is to be
subtracted from the aforesaid product, shall be increased by any amounts theretofore paid by such
Guarantor by way of contribution hereunder, and shall be decreased by any amounts theretofore
received by such Guarantor by way of contribution); provided however, that a Paying
Guarantor’s recovery of contribution from the other Guarantors hereunder shall be limited,
exclusive of interest, to that amount paid by the Paying Guarantor in excess of such Paying
Guarantor’s Allocable Percentage of all payments made by all Guarantors to Guaranteed Parties under
this Guaranty. Amounts due by way of contribution hereunder shall bear interest, until paid, at a
rate equal to the Base Rate per annum. As used herein, the term “Allocable Percentage” shall mean,
on any date of determination thereof, a fraction, the denominator of which shall be equal to the
number of Guarantors who are parties to this Guaranty on such date and the numerator of which shall
be 1; provided, further, however, that such percentages shall be modified in the event that
contribution from a Guarantor is not possible (whether by reason of insolvency, bankruptcy or
otherwise) by reducing such Guarantor’s Allocable Percentage to zero (or to a lesser equitable
percentage reflecting its ability to pay) and by increasing the Allocable Percentage of all
remaining Guarantors proportionately so that the Allocable Percentages of all Guarantors at all
times equals 100%. Guarantors further covenant and agree for themselves and their respective
successors and assigns, jointly and severally, absolutely and unconditionally, that each shall at
all times indemnify and keep indemnified each of the other Guarantors and hold and save each of
them harmless from and against any and all actions or causes of actions, claims, demands,
liabilities, losses, damages or expenses of whatever kind and nature, including, without limiting
the generality of the foregoing, attorneys’ fees, which any Guarantor shall or may at any time
sustain or incur in any suit or proceeding instituted to enforce the obligations of the Guarantors
under this Guaranty in excess of the amount equal to such Guarantor’s Allocable Percentage of
individual liability under the terms hereof. Each Guarantor liable to a Paying Guarantor for
contribution, whether pursuant to the provisions of this Guaranty or by any law, hereby assigns in
favor of the Guarantor entitled to receive contribution any claim the Guarantor liable to make
contribution has or hereafter may have against Borrower, and authorizes any payments that may be
due on any such claim to be made to the Guarantor entitled to receive contribution for application
toward satisfaction of amounts due by way of contribution.



     As used herein, all references to “Guarantor” or “Guarantors” shall mean each Guarantor and
its successors and assigns (including any receiver, trustee or custodian for a Guarantor or any of
its assets or a Guarantor in its capacity as debtor or debtor-in-possession under the United States
Bankruptcy Code); all references to “Agent” shall mean Agent and its successors and assigns; all references to
“Lenders” shall mean each of the Lenders and their respective successors and assigns; all
references to “Guaranteed



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Parties” shall mean each of the Guaranteed Parties and their respective
successors and assigns; all references to “Borrower” shall mean Borrower and its successors and
assigns (including any receiver, trustee or custodian for Borrower or any of its assets or Borrower
in its capacity as debtor or debtor-in. possession under the United States Bankruptcy Code); all
references to the plural shall also mean the singular, and all references to the singular shall
also mean the plural; and all references to “including” shall mean “including, without limitation.”




     Guarantors and Agent each hereby waives the right to a jury trial in any action, suit,
proceeding or counterclaim arising out of or related to this Guaranty. This Guaranty and the
rights and obligations of the parties hereto shall be governed, construed and interpreted according
to the internal laws of the State of New York. As part of the consideration for the Guaranteed
Parties’ granting credit to Borrower, Guarantor hereby agrees that all actions, suits or
proceedings arising directly or indirectly hereunder may, at the option of Agent, be litigated in
courts having situs within the State of New York, and Guarantor hereby expressly consents to the
jurisdiction of any state or federal court located within said state, and consents that any service
of process in which action or proceedings may be made by personal service upon Guarantor wherever
Guarantor may be then located, or by certified or registered mail directed to Guarantor at
Guarantor’s last known address.



(Signatures begin on following page)




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     IN WITNESS WHEREOF, Guarantors have caused this Guaranty to be signed, sealed and delivered by
its duly authorized officers, on the day and year first above written.



	 	 	 	 	 
	 	GUARANTORS:





APPLICA CONSUMER PRODUCTS, INC., a 

Florida corporation

 	 
	 	By:  	/s/ Terry Polistina
 	 
	 	Name:	  	Terry Polistina 	 
	 	Title:	  	Senior Vice President and Chief
Financial Officer 	 
	 
	 	WD DELAWARE, INC., a Delaware 

corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	Name:	  	Lisa R. Carstarphen 	 
	 	Title:	  	Corporate Secretary 	 
	 
	 	HP INTELLECTUAL CORP., a Delaware 

corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	Name:	  	Lisa R. Carstarphen 	 
	 	Title:	  	Corporate Secretary 	 
	 
	 	WINDMERE HOLDINGS CORPORATION, a 

Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	Name:	  	Lisa R. Carstarphen 	 
	 	Title:	  	Corporate Secretary 	 
	 
	 	HP DELAWARE, INC., a Delaware

Corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	Name:	  	Lisa R. Carstarphen 	 
	 	Title:	  	Corporate Secretary 	 
	 
	 	HPG LLC, a Delaware limited liability

company

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	Name:	  	Lisa R. Carstarphen 	 
	 	Title:	  	Corporate Secretary 	 
	 



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	 	APPLICA AMERICAS, INC. (f/k/a HP 

AMERICAS, INC.), a Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	Name:	  	Lisa R. Carstarphen 	 
	 	Title:	  	Corporate Secretary 	 
	 
	 	APPLICA MEXICO HOLDINGS, INC., a 

Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	Name:	  	Lisa R. Carstarphen 	 
	 	Title:	  	Corporate Secretary 	 
	 
	 	Accepted: 



BANK OF AMERICA, N.A.,

as Agent

 	 
	 	By:  	/s/ Sherry D. Lail
 	 
	 	Name:	  	Sherry D. Lail 	 
	 	Title:	  	Senior Vice President 	 
	 




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