exv10w9wb






Exhibit 10.9(b)




LOAN AND SECURITY AGREEMENT




by and among




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Collateral Agent and LC Issuer,




WELLS FARGO CAPITAL FINANCE, LLC

JPMORGAN SECURITIES, INC.

as Joint Lead Arrangers and Joint Bookrunners




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent




PNC BANK, NATIONAL ASSOCIATION,

as Documentation Agent,




THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,

as Lenders,




and




ULTA SALON, COSMETICS & FRAGRANCE, INC.

as Borrower




Dated: as of August 31, 2010










 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 2. CREDIT FACILITIES
	 	 	19	 
	 
	 	 	 	 
	2.1. Revolving Loans
	 	 	19	 
	2.2. Letter of Credit Accommodations
	 	 	20	 
	2.3. Availability Reserves
	 	 	25	 
	2.4. Commitments
	 	 	26	 
	2.5. Swing Line Facility
	 	 	26	 
	 
	 	 	 	 
	SECTION 3. INTEREST AND FEES
	 	 	28	 
	 
	 	 	 	 
	3.1. Interest
	 	 	28	 
	3.2. Other Fees
	 	 	29	 
	3.3. Changes in Laws and Increased Costs of Loans
	 	 	30	 
	 
	 	 	 	 
	SECTION 4. CONDITIONS PRECEDENT
	 	 	31	 
	 
	 	 	 	 
	4.1. Conditions Precedent to Initial Loans and Letter of Credit Accommodations
	 	 	31	 
	4.2. Conditions Precedent to All Loans and Letter of Credit Accommodations
	 	 	32	 
	 
	 	 	 	 
	SECTION 5. GRANT AND PERFECTION OF SECURITY INTEREST
	 	 	33	 
	 
	 	 	 	 
	5.1. Grant of Security Interest
	 	 	33	 
	5.2. Exception from Security Interest
	 	 	34	 
	5.3. Perfection of Security Interest
	 	 	35	 
	 
	 	 	 	 
	SECTION 6. COLLECTION AND ADMINISTRATION
	 	 	39	 
	 
	 	 	 	 
	6.1. Borrower’s Loan Account
	 	 	39	 
	6.2. Statements
	 	 	39	 
	6.3. Collection of Accounts
	 	 	40	 
	6.4. Payments
	 	 	43	 
	6.5. Authorization to Make Loans
	 	 	44	 
	6.6. Use of Proceeds
	 	 	45	 
	6.7. Pro Rata Treatment
	 	 	45	 
	6.8. Sharing of Payments, Etc.
	 	 	45	 
	6.9. Settlement Procedures
	 	 	46	 
	 
	 	 	 	 
	SECTION 7. COLLATERAL REPORTING AND COLLATERAL COVENANTS
	 	 	47	 
	 
	 	 	 	 
	7.1. Collateral Reporting
	 	 	47	 
	7.2. Accounts Covenants
	 	 	47	 
	7.3. Inventory Covenants
	 	 	49	 
	7.4. Power of Attorney
	 	 	50	 






i









 






	 	 	 	 	 

	7.5. Right to Cure
	 	 	51	 
	7.6. Access to Premises
	 	 	51	 
	 
	 	 	 	 
	SECTION 8. REPRESENTATIONS AND WARRANTIES
	 	 	52	 
	 
	 	 	 	 
	8.1. Corporate Existence; Power and Authority
	 	 	52	 
	8.2. Name; State of Organization; Chief Executive Office; Collateral Locations
	 	 	52	 
	8.3. Financial Statements; No Material Adverse Change
	 	 	53	 
	8.4. Priority of Liens; Title to Properties
	 	 	53	 
	8.5. Tax Returns
	 	 	53	 
	8.6. Litigation
	 	 	54	 
	8.7. Compliance with Other Agreements and Applicable Laws
	 	 	54	 
	8.8. Environmental Compliance
	 	 	55	 
	8.9. Credit Card Agreements
	 	 	55	 
	8.10. Employee Benefits
	 	 	56	 
	8.11. Bank Accounts
	 	 	57	 
	8.12. Regulation U
	 	 	57	 
	8.13. Investment Company Act
	 	 	57	 
	8.14. OFAC
	 	 	57	 
	8.15. Accuracy and Completeness of Information
	 	 	57	 
	8.16. Survival of Warranties; Cumulative
	 	 	57	 
	 
	 	 	 	 
	SECTION 9. AFFIRMATIVE AND NEGATIVE COVENANTS
	 	 	58	 
	 
	 	 	 	 
	9.1. Maintenance of Existence
	 	 	58	 
	9.2. New Collateral Locations
	 	 	58	 
	9.3. Compliance with Laws, Regulations, Etc.
	 	 	59	 
	9.4. Payment of Taxes and Claims
	 	 	60	 
	9.5. Insurance
	 	 	60	 
	9.6. Financial Statements and Other Information
	 	 	61	 
	9.7. Sale of Assets, Consolidation, Merger, Dissolution, Etc.
	 	 	62	 
	9.8. Encumbrances
	 	 	63	 
	9.9. Indebtedness
	 	 	64	 
	9.10. Loans, Investments, Etc.
	 	 	67	 
	9.11. Dividends and Redemptions
	 	 	69	 
	9.12. Transactions with Affiliates
	 	 	70	 
	9.13. Credit Card Agreements
	 	 	70	 
	9.14. Adjusted Tangible Net Worth
	 	 	71	 
	9.15. Compliance with ERISA
	 	 	71	 
	9.16. Costs and Expenses
	 	 	71	 
	9.17. Further Assurances
	 	 	72	 
	 
	 	 	 	 
	SECTION 10. EVENTS OF DEFAULT AND REMEDIES
	 	 	72	 
	 
	 	 	 	 
	10.1. Events of Default
	 	 	72	 
	10.2. Remedies
	 	 	74	 






ii









 






	 	 	 	 	 

	SECTION 11. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW
	 	 	77	 
	 
	 	 	 	 
	11.1. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver
	 	 	77	 
	11.2. Waiver of Notices
	 	 	78	 
	11.3. Amendments and Waivers
	 	 	78	 
	11.4. Waiver of Counterclaims
	 	 	80	 
	11.5. Indemnification
	 	 	80	 
	 
	 	 	 	 
	SECTION 12. THE AGENTS
	 	 	80	 
	 
	 	 	 	 
	12.1. Appointment, Powers and Immunities
	 	 	80	 
	12.2. Reliance by Agents
	 	 	81	 
	12.3. Events of Default
	 	 	81	 
	12.4. Wells in its Individual Capacity
	 	 	82	 
	12.5. Indemnification
	 	 	82	 
	12.6. Non-Reliance on Agents and Other Lenders
	 	 	83	 
	12.7. Failure to Act
	 	 	83	 
	12.8. Additional Loans
	 	 	83	 
	12.9. Concerning the Collateral and the Related Financing Agreements
	 	 	84	 
	12.10. Field Audit, Examination Reports and other Information; Disclaimer by
Lenders
	 	 	84	 
	12.11. Collateral Matters
	 	 	85	 
	12.12. Agency for Perfection
	 	 	86	 
	12.13. Successor Agent
	 	 	87	 
	12.14. Hedging Agreements
	 	 	87	 
	12.15. Other Agents; Arrangers and Managers
	 	 	89	 
	 
	 	 	 	 
	SECTION 13. TERM OF AGREEMENT; MISCELLANEOUS
	 	 	90	 
	 
	 	 	 	 
	13.1. Term
	 	 	90	 
	13.2. Interpretative Provisions
	 	 	90	 
	13.3. Notices
	 	 	92	 
	13.4. Partial Invalidity
	 	 	92	 
	13.5. Successors
	 	 	93	 
	13.6. Assignments; Participations
	 	 	93	 
	13.7. Confidentiality
	 	 	97	 
	13.8. Entire Agreement
	 	 	98	 
	13.9. Counterparts, Etc.
	 	 	98	 
	13.10. Customer Identification — USA Patriot Act Notice
	 	 	99	 






iii









 






INDEX TO

EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A

	 	Assignment and Acceptance
	 
	 	 
	Exhibit B

	 	Information Certificate
	 
	 	 
	Exhibit C

	 	Form of Swap Acknowledgment Agreement
	 
	 	 
	Exhibit D

	 	Notice of Conversion/Continuation
	 
	 	 
	Exhibit E

	 	Closing Checklist
	 
	 	 
	Exhibit F

	 	Notice of Borrowing
	 
	 	 
	Exhibit G

	 	Reserved
	 
	 	 
	Exhibit H

	 	Reserved
	 
	 	 
	Exhibit I

	 	Form of Borrowing Base Certificate
	 
	 	 
	Exhibit J

	 	Investment Policy
	 
	 	 
	Exhibit K

	 	Form of Credit Card Notification
	 
	 	 
	Schedule I

	 	Loan Commitments
	 
	 	 
	Schedule II

	 	Cash Management Services and Bank Products







iv











 





Exhibit 10.9(b)




LOAN AND SECURITY AGREEMENT




     This Loan and Security Agreement (as amended, restated or otherwise modified from time to
time, the “Agreement”) dated as of August 31, 2010 is entered into by and among ULTA SALON,
COSMETICS & FRAGRANCE, INC., a Delaware corporation (“Borrower”), the financial
institutions from time to time parties hereto as lenders (“Lenders”), WELLS FARGO BANK,
NATIONAL ASSOCIATION, in its capacities as administrative agent for Lenders (“Administrative
Agent”), as collateral agent for Lenders (“Collateral Agent,”) and in its individual
capacity, (“Wells Fargo”), WELLS FARGO BANK NATIONAL ASSOCIATION, as LC Issuer (“LC
Issuer”) and JPMORGAN CHASE BANK, N.A., in its capacity as Syndication Agent (“Syndication
Agent”); and PNC BANK, NATIONAL ASSOCIATION, in its capacity as documentation agent for Lenders
(“Documentation Agent”) and in its individual capacity (“PNC”).



W I T N E S S E T H:



     WHEREAS, Borrower, Wachovia Capital Finance Corporation, (f/k/a Congress Financial Corporation
(Central) and individually, “Wachovia”), as agent, and each of Wachovia and Bank of
America, N.A. (as successor to LaSalle National Bank, National Association) (“Bank of
America”), individually are each party to that certain Loan and Security Agreement dated as of
May 29, 1997 (the “1997 Loan Agreement”) which was amended and restated by that certain
Amended and Restated Loan and Security Agreement dated as of December 20, 2001 (as amended or
otherwise modified prior to May 31, 2005, the “2001 Loan Agreement”), and which was further
amended by the Second Amended and Restated Loan and Security Agreement dated as of May 31, 2005 (as
amended or otherwise modified prior to June 29, 2007, the “2005 Loan Agreement” and which
was further amended by that certain Third Amended and Restated Loan and Security Agreement dated as
of June 29, 2007 (as amended or otherwise modified prior to the date hereof, the “2007 Loan
Agreement” and, collectively with the 1997 Loan Agreement, the 2001 Loan Agreement and the 2005
Loan Agreement, the “Prior Loan Agreements”), pursuant to which, among other things, the
lenders thereunder made available to Borrower various secured financings; and



          WHEREAS, Borrower, has determined that it will terminate the Prior Loan Agreements and subject
to the terms and conditions set forth herein, replace the financing under the 2007 Loan Agreement
with a new credit facility as evidence hereby;




          NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:




SECTION 1. DEFINITIONS




          For purposes of this Agreement, the following terms shall have the respective meanings given
to them below:




          1.1. “Accounts” shall mean all present and future rights of Borrower to payment of a
monetary obligation, whether or not earned by performance, which is not evidenced by chattel paper
or an instrument, (a) for property that has been or is to be sold,






 









 







leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be
rendered, (c) for a secondary obligation incurred or to be incurred, or (d) arising out of the use
of a credit or charge card or information contained on or for use with the card.




          1.2. “Adjusted LIBO Rate” means:




     (a) for any Interest Period with respect to any LIBO Rate Loan, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of one percent) equal to (i) the LIBO Rate for
such Interest Period multiplied by (ii) the Statutory Reserve Rate; and



     (b) for any interest rate calculation with respect to any Prime Rate Loan, an interest rate
per annum (rounded upwards, if necessary, to the next 1/100 of one percent) equal to (i) the LIBO
Rate for an Interest Period commencing on the date of such calculation and ending on the date that
is thirty (30) days thereafter multiplied by (ii) the Statutory Reserve Rate.



     The Adjusted LIBO Rate will be adjusted automatically as of the effective date of any change
in the Statutory Reserve Rate.



          1.3. “Adjusted Tangible Net Worth” shall mean as to any Person, at any time, in
accordance with GAAP (except as otherwise specifically set forth below), on a consolidated basis
for such Person and its subsidiaries (if any), the amount equal to the sum of (a) the difference
between: (i) the aggregate net book value of all assets of such Person and its subsidiaries
(excluding the book value of goodwill, non-competition agreements, patents, trademarks, copyrights,
licenses and other intangible assets), calculating the book value of inventory for this purpose
principally on an average cost basis, after deducting from such book values all appropriate
reserves in accordance with GAAP (including all reserves for doubtful receivables, obsolescence,
depreciation and amortization) and (ii) the aggregate amount of the indebtedness and other
liabilities of such Person and its subsidiaries (including tax and other proper accruals) included
on the balance sheet of such person in accordance with GAAP, plus (b) indebtedness of such Person
and its subsidiaries which is subordinated in right of payment to the full and final payment of all
of the Obligations on terms and conditions acceptable to Administrative Agent.




          1.4. “Affiliate” shall mean, with respect to a specified Person, any other Person
which directly or indirectly, through one or more intermediaries, controls or is controlled by or
is under common control with such Person, and without limiting the generality of the foregoing,
includes (a) any Person which beneficially owns or holds ten (10%) percent or more of any class of
Voting Stock of such Person or other equity interests in such Person, (b) any Person of which such
Person beneficially owns or holds ten (10%) percent or more of any class of Voting Stock or in
which such Person beneficially owns or holds ten (10%) percent or more of the equity interests and
(c) any director or executive officer of such Person. For the purposes of this definition, the
term “control” (including with correlative meanings, the terms “controlled by” and
“under common control with”), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by agreement or otherwise.







2









 








          1.5. “Agents” shall mean each of Administrative Agent and Collateral Agent, or each
such entity as the context so provides and any successor agents hereunder.




          1.6. “Armored Car Companies” shall mean, collectively, the armored car services
companies set forth on Schedule 6.3 of the Information Certificate or any other armored car service
selected by Borrower after the date hereof which is reasonably acceptable to Administrative Agent.




          1.7. “Assignment and Acceptance” shall mean an Assignment and Acceptance substantially
in the form of Exhibit A attached hereto (with blanks appropriately completed) delivered to the
Administrative Agent in connection with an assignment described under Section 13.6 hereof to the
extent such assignment is not otherwise prohibited as between or among the Lenders.




          1.8. “Availability Reserves” shall have the meaning set forth in Section 2.3 hereof.




          1.9. “Bank Products” means any services or facilities provided to the Borrower by a
Lender or any of its Affiliates (but excluding Cash Management Services) on account of (a) Swap
Contracts, (b) purchase cards, (c) merchant services constituting a line of credit (d) factoring,
(e) commercial credit cards, and (f) leasing.




          1.10. “Bank Product Reserves” means, if and only to the extent disclosed to the
Administrative Agent in writing, such reserves as the Lender (or its Affiliate) providing a Bank
Product and the Borrower agree in writing from time to time to reflect the liabilities and
obligations of the Borrower with respect to such Bank Products then provided or outstanding.




          1.11. “Blocked Accounts” shall have the meaning set forth in Section 6.3 hereof.




          1.12. “Business Day” shall mean any day other than a Saturday, Sunday, or other day on
which commercial banks are authorized or required to close under the laws of the State of New York,
Illinois or the State of North Carolina, and a day on which Administrative Agent is open for the
transaction of business, except that if a determination of a Business Day shall relate to any LIBO
Rate Loans, the term Business Day shall also exclude any day on which banks are closed for dealings
in dollar deposits in the London interbank market or other applicable LIBO Rate market.




          1.13. “Capital Stock” shall mean, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such Person’s capital stock
or partnership, limited liability company or other equity interests at any time outstanding, and
any and all rights, warrants or options exchangeable for or convertible into such capital stock or
other interests (but excluding any debt security that is exchangeable for or convertible into such
capital stock).




          1.14. “Cash Equivalents” shall mean, at any time, investments consistent with the
Borrower’s investment policy attached hereto as Exhibit J, as such Exhibit may be modified from
time to time with the prior written consent of the Administrative Agent (not to be






3









 







unreasonably withheld), to the extent such investment policy is modified by the Borrower’s
board of directors.




          1.15. “Cash Management Reserves” means, if and only to the extent disclosed to
the Administrative Agent in writing, such reserves as the Lender (or its Affiliate) providing Cash
Management Services and the Borrower agree in writing from time to time to reflect the liabilities
and obligations of the Borrower with respect to such Cash Management Services then provided or
outstanding.




          1.16. “Cash Management Services” means any one or more of the following types or
services or facilities provided to the Borrower by a Lender or any of its Affiliates: (a) ACH
transactions, (b) cash management services, including, without limitation, controlled disbursement
services, treasury, depository, overdraft, and electronic funds transfer services, (c) foreign
exchange facilities, (d) credit or debit cards, (e) credit card processing services, (f) purchase
cards and (g) merchant services not constituting a Bank Product.




          1.17. “Change of Control” shall be deemed to have occurred if an event or series of
events (whether a stock purchase, amalgamation, merger, consolidation or other business combination
or otherwise) shall have occurred by which any Person or Group (as such term is used in Sections
14(d)(2) and 13(d)(3), respectively, of the Securities Exchange Act) other than any of the
Permitted Holders is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act) directly or indirectly of thirty-five percent (35%) or more of the
combined voting power of the then outstanding securities of Borrower ordinarily (and apart from
rights accruing under certain circumstances) having the right to vote in election of directors or
(b) a majority of the Board of Directors of Borrower over a one (1) year period shall have replaced
the directors who constituted the Board of Directors at the beginning of such period other than
directors whose nominations for election by the stockholders of Borrower was approved by such Board
of Directors).




          1.18. “Closing Date” shall mean August 30, 2010.




          1.19. “Code” shall mean the Internal Revenue Code of 1986, as the same now exists or
may from time to time hereafter be amended, modified, recodified or supplemented, together with all
rules, regulations and interpretations thereunder or related thereto.




          1.20. “Collateral” shall have the meaning set forth in Section 5 hereof.




          1.21. “Collateral Access Agreement” shall mean an agreement in writing, in form and
substance satisfactory to Agents, from any lessor of premises to Borrower, or any other person to
whom any Collateral (including Inventory, Equipment, bills of lading or other documents of title)
is consigned or who has custody, control or possession of any such Collateral or is otherwise the
owner or operator of any premises on which any of such Collateral is located, pursuant to which
such lessor, consignee or other person, inter alia, acknowledges the first priority
security interest of Collateral Agent in such Collateral, agrees to waive any and all claims such
lessor, consignee or other person may, at any time, have against such Collateral, whether for
processing, storage or otherwise, and agrees to permit Collateral Agent access to, and the right to
remain on, the premises of such lessor, consignee or other person so as to






4









 







exercise Collateral Agent’s rights and remedies and otherwise deal with such Collateral and,
in the case of any consignee or other person who at any time has custody, control or possession of
any Collateral, acknowledges that it holds and will hold possession of the Collateral for the
benefit of Collateral Agent and agrees to follow all instructions of Collateral Agent with respect
thereto.




          1.22. “Commitments” shall mean, as to any Lender, the aggregate commitment of such
Lender to make Loans or to incur Letter of Credit Obligations in the maximum principal amounts set
forth on Schedule I hereto next to such Lender’s name or on the Assignment and Acceptance Agreement
pursuant to which such Lender became a Lender hereunder in accordance with the provisions of
Section 13.6 hereof, as such amount may be adjusted, if at all, in accordance with this Agreement.




          1.23. “Control Event” shall mean any of the following: (a) an Event of Default has
occurred and is continuing; or (b) Excess Availability is less than forty percent (40%) of the
lesser of (i) the amount of the Loans available to Borrower as of such time based on the formula
set forth in Section 2.1(a) hereof or (ii) the Maximum Credit for ten (10) consecutive Business
Days; or (c) Excess Availability at any time is less than thirty percent (30%) of the lesser of (i)
the amount of the Loans available to Borrower as of such time based on the formula set forth in
Section 2.1(a) hereof or (ii) the Maximum Credit.




          1.24. “Cost” shall mean, as to the Inventory as of any date, the cost of such
Inventory as of such date, determined principally on the average cost basis in accordance with
GAAP.




          1.25. “Credit Card Agreements” shall mean all agreements now or hereafter entered into
by Borrower any Credit Card Issuer or any Credit Card Processor, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, including,
but not limited to, the agreements listed and schedules of terms listed on Schedule 8.9 to the
Information Certificate.




          1.26. “Credit Card Issuer” shall mean any person (other than Borrower) who issues or
whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or
debit cards or other bank credit or debit cards issued through MasterCard International, Inc.,
Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche
and other non-bank credit or debit cards, including, without limitation, credit cards issued by or
through American Express Travel Related Services Company, Inc. and Novus Services, Inc.




          1.27. “Credit Card Notifications” shall mean, individually and collectively,
notifications in the form of Exhibit K furnished to Credit Card Processors notifying such Credit
Card Processors of the Collateral Agent’s first priority security interest in the monies due or to
becomes due to the Borrower (including, without limitation, credits and reserves) under the Credit
Card Agreements and furnishing instructions for the transfer of such monies to a Blocked Account,.







5









 








          1.28. “Credit Card Processor” shall mean any servicing or processing agent or any
factor or financial intermediary who facilitates, services, processes or manages the credit
authorization, billing transfer and/or payment procedures with respect to any of Borrower’s sales
transactions involving credit card or debit card purchases by customers using credit cards or debit
cards issued by any Credit Card Issuer (including, but not limited to, First Data Merchant Services
Corporation).




          1.29. “Credit Facilities” shall mean the Loans and Letter of Credit Accommodations
provided to or for the benefit of Borrower pursuant to Sections 2.1 and 2.2.




          1.30. “Default” shall mean an act, condition or event which with notice or passage of
time or both would constitute an Event of Default.




          1.31. “Defaulting Lender” shall have the meaning set forth in Section 12.15 hereof.




          1.32. “Deposit Account Control Agreement” shall mean an agreement in writing, in form
and substance satisfactory to Agents, by and among Agents, Borrower and any bank at which any
deposit account of Borrower is at any time maintained which provides that such bank will comply
with instructions originated by the Agents directing disposition of the funds in the deposit
account without further consent by Borrower and such other terms and conditions as Agents may
require, including as to any such agreement with respect to any Blocked Account, providing that all
items received or deposited in the Blocked Accounts are the property of Collateral Agent, that the
bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for
deposit therein, or the funds from time to time on deposit therein and that the bank will wire, or
otherwise transfer, in immediately available funds, on a daily basis to the Payment Account all
funds received or deposited into the Blocked Accounts.




          1.33. “Deteriorating Lender” means any Defaulting Lender or any Lender as to which (a)
the LC Issuer or the Swing Line Lender has a good faith belief that such Lender has defaulted in
fulfilling its obligations under one or more other syndicated credit facilities, or (b) a Person
that controls such Lender has been deemed insolvent or become the subject of a bankruptcy,
insolvency or similar proceeding.




          1.34. “Eligible Inventory” shall mean Inventory consisting of finished goods held for
resale in the ordinary course of the business of Borrower that are acceptable to Agents based on
the criteria set forth below. In general, Eligible Inventory shall not include (a) packaging and
shipping materials; (b) supplies used or consumed in Borrower’s business; (c) Inventory at premises
other than those owned, controlled or leased by Borrower, provided that for Inventory at
any new locations which the Borrower leases after the date hereof (i) consisting of distribution
centers or warehouses or (ii) in Virginia, Pennsylvania, Washington and such other states in
which a landlord’s claim for rent may have priority over the Lien of the Collateral Agent in any of
the Collateral (A) Agents shall have received a Landlord Agreement duly authorized, executed
and delivered by the owner and lessor of such premises or (B) if Agents have not received such
Landlord Agreement, then Agents shall have established an Availability Reserve in respect of
amounts due or to become due to the owner and lessor of such retail store location (without






6









 







limiting any other rights and remedies of Agents under this Agreement or under the other
Financing Agreements with respect to the establishment of Availability Reserves or otherwise) and
after giving effect to such Availability Reserves, there is Excess Availability; provided,
that, (1) Borrower shall use its best efforts to obtain the Landlord Agreement with respect
to each such new location, and (2) the Availability Reserves established pursuant to this Section
shall not exceed at any time (x) one (1.0) times the basic monthly rent payable to such
owners and lessors of such leased locations plus (y) amounts, if any, then outstanding and unpaid
owed by Borrower to such owners and lessors, provided, that, such limitation on the
amount of the Availability Reserves pursuant to this Section shall only apply so long as: (aa) no
Default or Event of Default shall exist or have occurred, (bb) Borrower or Agents shall not have
received notice of any default or event of default under the lease with respect to such retail
store location and (cc) Agents shall have received evidence, in form and substance satisfactory to
the Agents, that Borrower has not granted to the owner and lessor a security interest in or lien
upon any assets of Borrower; and (3) for clarity, the Borrower shall not be obligated to obtain any
such Landlord Agreements for distribution centers, warehouses or store locations existing on the
date hereof, (d) Inventory subject to a security interest or lien in favor of any person other than
Collateral Agent except those permitted in this Agreement; (e) bill and hold goods; (f)
unserviceable, obsolete or slow moving Inventory; (g) Inventory which is not subject to the first
priority, valid and perfected security interest of Collateral Agent. (h) damaged and/or defective
Inventory (i) returned Inventory that is not held for resale; (j) Inventory to be returned to
vendors; (k) Inventory subject to deposits made by customers for sales of Inventory that has not
been delivered; (1) Inventory held after the applicable expiration date thereof; (m) samples
(except to the extent approved from time to time by Agents) and (n) Inventory purchased or sold on
consignment. General criteria for Eligible Inventory may be established and revised from time to
time by Agents in good faith based on an event, condition or other circumstance arising after the
date hereof, or existing on the date hereof to the extent neither Agent has any notice thereof in
writing from either Borrower or any inventory appraiser, which adversely affects or could
reasonably be expected to adversely affect the Inventory in any material respect in the good faith
determination of Agents. Any Inventory which is not Eligible Inventory shall nevertheless be part
of the Collateral.




          1.35. “Eligible Letter of Credit Inventory” means, as of any date of determination
(without duplication of other Eligible Inventory), Inventory:





     (a) which has been delivered to a carrier in a foreign port or foreign airport for
receipt by the Borrower in the United States within sixty (60) days of the date of
determination, but which has not yet been received by the Borrower;




     (b) the purchase order for which is in the name of the Borrower, title has passed to
the Borrower and the purchase of which is supported by a Letter of Credit Accommodation made
under this Agreement having an initial expiry, subject to the proviso hereto, within 120
days after the date of initial issuance of such Letter of Credit Accommodation;




     (c) except as otherwise agreed by the Agents, for which the Borrower is designated as
“shipper” and/or consignor and the document of title or waybill reflects the



7









 






Borrower as consignee (along with delivery to the Borrower or its customs broker of the
documents of title, to the extent applicable, with respect thereto);




     (d) as to which an Agent has control over the documents of title, to the extent
applicable, which evidence ownership of the subject Inventory;




     (e) which is insured in accordance with the provisions of this Agreement and the other
Financing Agreements, including, without limitation marine cargo insurance;




     (f) except as otherwise agreed by the Agents, as to which an agreement with any Person
providing freight, warehousing and consolidation services to the Borrower has been executed
and delivered in favor of the Agents, and




     (g) which otherwise is not excluded from the definition of Eligible Inventory;



          provided that the Administrative Agent may, upon notice to the Borrower,
exclude any particular Inventory from the definition of “Eligible Letter of Credit Inventory” in
the event that the Administrative Agent determines that such Inventory is subject to any Person’s
right or claim which is (or is capable of being) senior to, or pari passu with, the Lien of the
Collateral Agent (such as, without limitation, a right of stoppage in transit), as applicable, or
may otherwise adversely impact the ability of the Administrative Agent or the Collateral Agent to
realize upon such Inventory.




          1.36. “Eligible Transferee” shall mean (a) any Lender; (b) any Affiliate of a Lender
and (c) any other commercial bank, financial institution or “accredited investor” (as
defined in Regulation D under the Securities Act of 1933) approved by Administrative Agent;
provided, that, neither the Borrower nor any of its Affiliates shall qualify as an Eligible
Transferee.




          1.37. “Environmental Laws” shall mean all foreign, Federal, State and local laws
(including common law), legislation, rules, codes, licenses, permits (including any conditions
imposed therein), authorizations, judicial or administrative decisions, injunctions or agreements
between Borrower and any Governmental Authority, (a) relating to pollution and the protection,
preservation or restoration of the environment (including air, water vapor, surface water, ground
water, drinking water, drinking water supply, surface land, subsurface land, plant and animal life
or any other natural resource), or to human health or safety, (b) relating to the exposure to, or
the use, storage, recycling, treatment, generation, manufacture, processing, distribution,
transportation, handling, labeling, production, release or disposal, or threatened release, of
Hazardous Materials, or (c) relating to all laws with regard to recordkeeping, notification,
disclosure and reporting requirements respecting Hazardous Materials. The term “Environmental
Laws” includes (i) the Federal Comprehensive Environmental Response, Compensation and Liability
Act of 1980, the Federal Superfund Amendments and Reauthorization Act, the Federal Water Pollution
Control Act of 1972, the Federal Clean Water Act, the Federal Clean Air Act, the Federal Resource
Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste Amendments thereto),
the Federal Solid Waste Disposal and the Federal Toxic Substances Control Act, the Federal
Insecticide, Fungicide and Rodenticide Act, and the Federal Safe Drinking Water Act of 1974, (ii)
applicable state






8









 







counterparts to such laws, and (iii) any common law or equitable doctrine that may impose
liability or obligations for injuries or damages due to, or threatened as a result of, the presence
of or exposure to any Hazardous Materials.




          1.38. “Equipment” shall mean all of Borrower’s now owned and hereafter acquired
equipment and fixtures, wherever located, including machinery, data processing and computer
equipment and computer hardware and software, whether owned or licensed, and including embedded
software, vehicles, tools, furniture, all attachments, accessions and property now or hereafter
affixed thereto or used in connection therewith, and substitutions and replacements thereof,
wherever located.




          1.39. “ERISA” shall mean the United States Employee Retirement Income Security Act of
1974, together with all rules, regulations and interpretations thereunder or related thereto.




          1.40. “ERISA Affiliate” shall mean any person required to be aggregated with Borrower
or any of its Subsidiaries under Sections 414(b), 414(c), 414(m) or 414(o) of the Code.




          1.41. “Event of Default” shall mean the occurrence or existence of any event or
condition described in Section 10.1 hereof.




          1.42. “Excess Availability” shall mean the amount, as determined by Agents, calculated
at any time, equal to: (a) the lesser of (i) the amount of the Loans available to Borrower as of
such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and
Availability Reserves from time to time established by Agents hereunder and (ii) the Maximum
Credit, minus (b) the sum of: (i) the amount of all then outstanding and unpaid principal
amount of the Loans and outstanding Letters of Credit, plus (ii) at the option of either
Agent, the aggregate amount of all trade payables of Borrower which are more than sixty (60) days
past due as of such time (and for which checks included in clause (iii) below have not been issued)
plus (iii) the amount of checks issued by Borrower to pay trade payables, but not yet sent
and the book overdraft of Borrower.




          1.43. “Federal Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Wells Fargo on such day on such transactions as determined by the Administrative Agent.
The Administrative Agent’s determination of such rate shall be binding and conclusive absent
manifest error.




          1.44. “Fee Letter” shall mean the letter agreement, dated on or about the date hereof,
by and between Borrower and Administrative Agent, as the same exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced.







9









 








          1.45. “Financing Agreements” shall mean, collectively, this Agreement and all notes,
guarantees, security agreements and other agreements, documents and instruments at any time
executed and/or delivered by Borrower or any Obligor in connection with this Agreement (to the
extent not superseded or replaced by any other Financing Agreement), as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.




          1.46. “GAAP” shall mean generally accepted accounting principles in the United States
of America as in effect from time to time as set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards Board which are applicable to
the circumstances as of the date of determination consistently applied, except that, for purposes
of Sections 9.11 and 9.14 hereof, GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation of the most recent
audited financial statements delivered to Administrative Agent prior to the date hereof.




          1.47. “Governmental Authority” shall mean any nation or government, any state,
province, or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.




          1.48. “Hazardous Materials” shall mean any hazardous, toxic or dangerous substances,
materials and wastes, including hydrocarbons (including naturally occurring or man-made petroleum
and hydrocarbons), flammable explosives, asbestos, urea formaldehyde insulation, radioactive
materials, biological substances, polychlorinated biphenyls, pesticides, herbicides and any other
kind and/or type of pollutants or contaminants (including materials which include hazardous
constituents), sewage, sludge, industrial slag, solvents and/or any other similar substances,
materials, or wastes and including any other substances, materials or wastes that are or become
regulated under any Environmental Law (including any that are or become classified as hazardous or
toxic under any Environmental Law).




          1.49. “Hedging Agreements” shall mean any and all transactions, agreements or
documents, now existing or hereafter entered into with a Lender or an Affiliate of a Lender subject
to Section 9.9(g) hereof and on terms and conditions reasonably satisfactory (in light of standard
ISDA documentation practices) to Administrative Agent and Borrower, which (a) provides for an
interest rate swap, cap, floor or collar or similar transaction for the purpose of hedging
Borrower’s exposure to fluctuations in interest rates in respect of the Obligations, (b) are not
entered into for speculative purposes, (c) are with a financial institution having combined capital
and surplus and undivided profits of not less than $250,000,000, (d) are unsecured except to the
extent any indebtedness of Borrower thereunder constitutes Obligations secured hereby or to the
extent secured by pledges or deposits permitted under Section 9.8(i) hereof and (e) and for which
the counterparty to the Hedging Agreement and the Borrower have executed a Swap Acknowledgement
Agreement.







10









 








          1.50. “Hedging Balance” shall mean with respect to any Hedging Agreements as of any
date of determination, an amount equal to (a) the aggregate amount owing by the counterparties
under the Hedging Agreements to the Borrower less (b) the aggregate amount owing by the
Borrower to such counterparties under such Hedging Agreements plus (c) the aggregate
amount, if any, of all cash, Cash Equivalents and investment securities pledged or deposited to
secure the obligations of Borrower under such Hedging Agreements pursuant to Section 9.8(i) hereof.




          1.51. “Information Certificate” shall mean the Information Certificate of Borrower
constituting Exhibit B hereto (as supplemented from time to time with revised or new account
numbers or other information provided to the Agents) containing material information with respect
to Borrower, its business and assets provided by or on behalf of Borrower to Administrative Agent
in connection with the preparation of this Agreement and the other Financing Agreements and the
financing arrangements provided for herein.




          1.52. “Intellectual Property” shall mean Borrower’s now owned and hereafter arising or
acquired: patents, patent rights, patent applications, copyrights, works which are the subject
matter of copyrights, copyright registrations, trademarks, trade names, trade styles, trademark and
service mark applications, and licenses and rights to use any of the foregoing; all extensions,
renewals, reissues, divisions, continuations, and continuations-in-part of any of the foregoing;
all rights to sue for past, present and future infringement of any of the foregoing; inventions,
trade secrets, formulae, processes, compounds, drawings, designs, blueprints, surveys, reports,
manuals, and operating standards; goodwill (including any goodwill associated with any trademark or
the license of any trademark); customer and other lists in whatever form maintained; and trade
secret rights, copyright rights, rights in works of authorship, domain names and domain name
registrations; software and contract rights relating to software, in whatever form created or
maintained.




          1.53. “Interest Period” shall mean for any LIBO Rate Loan, a period of approximately
one (1), two (2), three (3) or six (6) months duration as Borrower may elect, the exact duration to
be determined in accordance with the customary practice in the applicable LIBO Rate market;
provided, that, Borrower may not elect an Interest Period which will end after the
Termination Date.




          1.54. “Interest Rate” shall mean, as to Prime Rate Loans, a rate equal to the Prime
Rate and, as to LIBO Rate Loans, a rate of two percent (2.0%) per annum in excess of the Adjusted
LIBO Rate (based on the LIBO Rate applicable for the Interest Period selected by Borrower as in
effect two (2) Business Days after the date of receipt by Administrative Agent of the request of
Borrower for such LIBO Rate Loans in accordance with the terms hereof, whether such rate is higher
or lower than any rate previously quoted to Borrower); provided, that,
notwithstanding anything to the contrary contained herein, the Interest Rate shall mean the rate of
two (2%) percent per annum in excess of the rates otherwise provided in this definition (i) without
notice, at any time an Event of Default exists pursuant to any of Sections 10.1(f), 10.1(g) and/or
10.1(h) and/or (ii) upon the written request of Required Lenders, and otherwise without notice, for
the period from and after the date of the occurrence of any Event of Default, other than an Event
of Default described in the immediately preceding clause (i), and for so long as such Event of
Default is continuing as reasonably determined by Administrative Agent.







11









 








          1.55. “Inventory” shall mean all of Borrower’s now owned and hereafter existing or
acquired goods, wherever located, which (a) are leased by Borrower as lessor; (b) are held by
Borrower for sale or lease or to be furnished under a contract of service; (c) are furnished by
Borrower under a contract of service; or (d) consist of raw materials, work in process, finished
goods or materials used or consumed in its business.




          1.56. “Investment Property Control Agreement” shall mean an agreement in writing, in
form and substance satisfactory to Agents, by and among the Agents, Borrower and any securities
intermediary, commodity intermediary or other person who has custody, control or possession of any
investment property of Borrower acknowledging that such securities intermediary, commodity
intermediary or other person has custody, control or possession of such investment property on
behalf of Agents, that it will comply with entitlement orders originated by the Agents with respect
to such investment property, or other instructions of the Agents, or (as the case may be) apply any
value distributed on account of any commodity contract as directed by the Agents, in each case,
without the further consent of Borrower and including such other terms and conditions as the Agents
may require.




          1.57. “Landlord Agreement” shall mean an agreement in writing from the owner and
lessor of premises (including, distribution centers, warehouses, and retail stores to the extent
required in the definition of Eligible Inventory) leased by Borrower after the date hereof
in form and substance reasonably satisfactory to the Agents.




          1.58. “LC Application” shall mean, with respect to any request for the issuance of a
Letter of Credit Accommodation, a letter of credit application in the form being used by the LC
Issuer at the time of such request for the type of letter of credit being requested.




          1.59. “LC Issuer” shall mean Wells Fargo, in its capacity as the issuer of Letter of
Credit Accommodations or any Affiliate of Wells Fargo that may from time to time issue Letter of
Credit Accommodations, and their successors and assigns in such capacity.




          1.60. “Lenders” shall mean the financial institutions who are signatories hereto as
Lenders and other persons made a party to this Agreement as a Lender in accordance with Section
13.6 hereof, and their respective successors and assigns (and with respect to Bank Products and
Cash Management Services, includes their respective Affiliates); each sometimes being referred to
herein individually as a “Lender”.




          1.61. “Letter of Credit Accommodations” shall mean, collectively, the letters of
credit, merchandise purchase or other guaranties which are from time to time either (a) issued or
opened by Administrative Agent, any Lender or any Affiliate of Lender for the account of Borrower
or any Obligor or (b) with respect to which Administrative Agent, any Lender or any Affiliate of
Lender has agreed to indemnify the LC Issuer or guaranteed to the LC Issuer the performance by
Borrower of its obligations to such LC Issuer, in each case in accordance with the terms of this
Agreement: sometimes being referred to herein individually as a “Letter of Credit
Accommodation”.




          1.62. “LIBO Rate” means for any Interest Period with respect to a LIBO Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA





12












 




LIBOR”), as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time for any reason,
then the “LIBO Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the LIBO Rate Loan being made,
continued or converted by Wells Fargo and with a term equivalent to such Interest Period would be
offered to Wells Fargo by major banks in the London interbank eurodollar market in which Wells
Fargo participates at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.




          1.63. “LIBO Rate Loan” means a Revolving Loan that bears interest at a rate based on
the Adjusted LIBO Rate.




          1.64. “Loans” shall mean the Revolving Loans and the Swing Line Loans.




          1.65. “Material Adverse Effect” shall mean a material adverse effect on (a) the
condition (financial or otherwise), business, performance, operations or properties of Borrower,
(b) the legality, validity or enforceability of this Agreement or any of the other Financing
Agreements; (c) the legality, validity, enforceability, perfection or priority of the security
interest or liens of Collateral Agent on a material portion of the Collateral or any other material
property which is security for the Obligations; (d) a material portion of the Collateral or any
other material property which is security for the Obligations, or the value of a material portion
of the Collateral or such other material property, or (e) the ability of Borrower to repay the
Obligations or of Borrower or any Obligor to perform its obligations under this Agreement or any of
the other Financing Agreements.




          1.66. “Margin Stock” shall mean any “margin stock” as defined in Regulation U
of the Board of Governors of the Federal Reserve System.




          1.67. “Master Letter of Credit Agreement” shall mean a Letter of Credit Agreement (to
be entered into upon the request of Wells Fargo) between Borrower and Wells Fargo, reasonably
acceptable in form and substance to the Borrower and Wells Fargo, as the same may be amended,
supplemented or otherwise modified from time to time.




          1.68. “Maximum Credit” shall mean, as of any date of determination, the aggregate
amount of the Commitments of all Lenders on such date of determination.




          1.69. “Net Income” shall mean, with respect to any Person, for any period, the
aggregate of the net income (loss) of such Person and its Subsidiaries, on a consolidated basis,
for such period (excluding to the extent included therein any extraordinary gains) after deducting
all charges which should be deducted before arriving at the net income (loss) for such period and
after deducting the Provision for Taxes for such period, all as determined in accordance with GAAP,
provided, that, (a) the net income of any Person that is not a wholly-owned
Subsidiary or that is accounted for by the equity method of accounting shall be included only to
the extent of






13









 







the amount of dividends or distributions paid or payable to Borrower or a wholly-owned
Subsidiary of such person; (b) the effect of any change in accounting principles adopted by such
Person or its subsidiaries after the date hereof shall be excluded; and (c) the net income (if
positive) of any wholly-owned Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by such wholly-owned Subsidiary to Borrower or to any other wholly-owned
Subsidiary of Borrower is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule of government regulation applicable
to such wholly-owned Subsidiary shall be excluded. For the purpose of this definition, net income
excludes any gain (but not loss), together with any related Provision of Taxes for such gain (but
not loss) realized upon the sale or other disposition of any assets that are not sold in the
ordinary course of business (including, without limitation, dispositions pursuant to sale and
leaseback transactions), or of any Capital Stock of such Person or a Subsidiary of such Person and
any net income realized as a result of changes in accounting principles or the application thereof
to such Person.




          1.70. “Net Recovery Cost Percentage” shall mean the fraction, expressed as a
percentage, (a) the numerator of which is the amount equal to the recovery on the aggregate amount
of the Inventory at such time on a “going out of business sale” basis as set forth in the
most recent acceptable appraisal of Inventory received by the Agents in accordance with Section
7.3, net of operating expenses, liquidation expenses and commissions, and (b) the denominator of
which is the original Cost of the aggregate amount of the Inventory subject to such appraisal.




          1.71. “Obligations” shall mean (a) any and all Loans, Letter of Credit Accommodations
and all other obligations, liabilities and indebtedness of every kind, nature and description
(except those described in clause (b) of this definition) owing by Borrower to any Agent or any
Lender and/or their Affiliates, including principal, interest, charges, fees, costs and expenses,
however evidenced, whether as principal, surety, endorser, guarantor or otherwise, whether arising
under this Agreement or otherwise, whether now existing or hereafter arising, whether arising
before, during or after the initial or any renewal term of this Agreement or after the commencement
of any case with respect to Borrower under the United States Bankruptcy Code or any similar statute
(including the payment of interest and other amounts which would accrue and become due but for the
commencement of such case, whether or not such amounts are allowed or allowable in whole or in part
in such case), whether direct or indirect, absolute or contingent, joint or several, due or not
due, primary or secondary, liquidated or unliquidated, secured or unsecured, and however acquired
by any Agent or any Lender and (b) for purposes only of Section 5.1 hereof and subject to priority
and right of payment under Section 6.4(a) hereof, any and all obligations, liabilities and
indebtedness of any kind, nature and description owing by Borrower arising under or in connection
with Hedging Agreements, Cash Management Services and other Bank Products; provided,
that, with respect to Hedging Agreements, the Agents shall have entered into an agreement
substantially in the form of Exhibit C hereto with the counterparty to such Hedging Agreement, as
acknowledged and agreed to by Borrower (the “Swap Acknowledgment Agreement”);
provided further, that, obligations arising under or in connection with
Cash Management Services or other Bank Products shall only be considered “Obligations” hereunder if
such Lender providing such services to Borrower has provided written notice of same to the
Administrative Agent within ten (10) days of the date such product becomes effective. The parties
acknowledge that, as of the Closing Date, the Cash Management






14









 







Services and Bank Products described on Schedule II hereto shall constitute “Obligations”
hereunder.




          1.72. “Obligor” shall mean any guarantor, endorser, acceptor, surety or other person
liable on or with respect to the Obligations or who is the owner of any property which is security
for the Obligations, other than Borrower.




          1.73. “OFAC” shall mean the Office of Foreign Assets Control.




          1.74. “Other Hedging Agreements” shall mean any and all transactions, agreements or
documents now existing or hereafter entered into with a Person other than a Lender or an Affiliate
of a Lender subject to Section 9.9(g)(B) hereof which (a) provides for an interest rate swap, cap,
floor or collar or similar transaction for the purpose of hedging Borrower’s exposure to
fluctuations in interest rates in respect of the Obligations, (b) are not entered into for
speculative purposes, (c) are with a financial institution having combined capital and surplus and
undivided profits of not less than $250,000,000, and (d) are unsecured.




          1.75. “Participant” shall mean any financial institution that acquires and holds a
participation in the interest of any Lender in any of the Loans and Letter of Credit Accommodations
in conformity with the provision of Section 13.6 of this Agreement governing participations and its
successors and assigns.




          1.76. “Payment Account” shall have the meaning set forth in Section 6.3 hereof.




          1.77. “Permits” shall have the meaning set forth in Section 8.7 hereto.




          1.78. “Permitted Holders” shall mean the persons listed on Exhibit C to the
Information Certificate, and their respective successors and assigns and any Strategic Purchaser.




          1.79. “Person” or “person” shall mean any individual, sole proprietorship,
partnership, corporation (including any corporation which elects subchapter S status under the
Code), limited liability company, limited liability partnership, business trust, unincorporated
association, joint stock corporation, trust, joint venture or other entity or any government or any
agency or instrumentality or political subdivision thereof.




          1.80. “Prime Rate” means, for any day, a fluctuating rate per annum equal to the
highest of (a) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent
(0.50%), (b) the Adjusted LIBO Rate plus one percent (1.00%), or (c) the rate of interest in effect
for such day as publicly announced from time to time by Wells Fargo as its “prime rate.” The
“prime rate” is a rate set by Wells Fargo based upon various factors including Wells Fargo’s costs
and desired return, general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Wells Fargo shall take effect at the opening of business on the day
specified in the public announcement of such change, provided that the Administrative Agent
shall not be obligated to give notice of any change in the Prime Rate.




          1.81. “Prime Rate Loans” shall mean any Loans or portion thereof on which interest is
payable based on the Prime Rate in accordance with the terms thereof.







15









 








          1.82. “Pro Rata Share” shall mean with respect to all matters relating to any Lender,
(a) with respect to all Loans and Letter of Credit Accommodations prior to the date on which the
Commitments have been terminated, the percentage obtained by dividing (i) the Commitments of that
Lender (after settlement and repayment of all Swing Line Loans by the Lenders) by (ii) the
Commitments of all Lenders, and (b) with respect to all Loans and Letter of Credit Accommodations
on and after the date on which the Commitments have been terminated, the percentage obtained by
dividing (i) the aggregate outstanding principal balance of the Loans and Letter of Credit
Accommodations held by that Lender (after settlement and repayment of all Swing Line Loans by the
Lenders), by (ii) the outstanding principal balance of the Loans and Letter of Credit
Accommodations held by all Lenders.




          1.83. “Provision for Taxes” shall mean, with respect to a fiscal year of any Person
and its Subsidiaries, an amount equal to all taxes imposed on or measured by net income, whether
Federal, State or local, and whether foreign or domestic, that are paid or payable by such Person
and its Subsidiaries in respect of such fiscal year on a consolidated basis in accordance with
GAAP.




          1.84. “Qualified Public Offering” shall mean (i) any public offering by Borrower of
its Capital Stock or (ii) an acquisition of shares of the Borrower in one or a series of related
transactions by a Strategic Purchaser, in each case, as long as the aggregate cash proceeds
received by the Borrower for the shares sold in such offering or acquisition, as the case may, is
at least $15,000,000.




          1.85. “Receivables” shall mean all of the following now owned or hereafter arising or
acquired property of Borrower: (a) all Accounts; (b) all interest, fees, late charges, penalties,
collection fees and other amounts due or to become due or otherwise payable in connection with any
Account; (c) all payment intangibles of Borrower and other contract rights, chattel paper,
instruments, notes, and other forms of obligations owing to Borrower, whether from the sale and
lease of goods or other property, licensing of any property (including Intellectual Property or
other general intangibles), rendition of services or from loans or advances by Borrower or to or
for the benefit of any third person (including loans or advances to any Affiliates or Subsidiaries
of Borrower) or otherwise associated with any Accounts, Inventory or general intangibles of
Borrower (including, without limitation, choses in action, causes of action, tax refunds, tax
refund claims, any funds which may become payable to Borrower in connection with the termination of
any employee benefit plan and any other amounts payable to Borrower from any employee benefit plan,
rights and claims against carriers and shippers, rights to indemnification, business interruption
insurance and proceeds thereof, casualty or any similar types of insurance and any proceeds thereof
and proceeds of insurance covering the lives of employees on which Borrower is a beneficiary).




          1.86. “Records” shall mean all of Borrower’s present and future books of account of
every kind or nature, purchase and sale agreements, invoices, ledger cards, bills of lading and
other shipping evidence, statements, correspondence, memoranda, credit files and other data
relating to the Collateral or any account debtor, together with the tapes, disks, diskettes and
other data and software storage media and devices, file cabinets or containers in or on which the
foregoing are stored (including any rights of Borrower with respect to the foregoing maintained
with or by any other person).







16









 








          1.87. “Refunded Swing Line Loan” shall have the meaning set forth in Section 2.5(c)
hereof.




          1.88. “Register” shall have the meaning set forth in Section 13.6(b) hereof.




          1.89. “Required Lenders” shall mean Lenders having (i) more than 50% of the
Commitments of all Lenders or (ii) if the Commitments have been terminated, more than 50% of the
aggregate outstanding amount of all Loans and Letter of Credit Accommodations; provided,
however, that in the event that there are three (3) or fewer Lenders party hereto, Required
Lenders must consist of at least two (2) Lenders.




          1.90. “Revolving Loans” shall mean the loans now or hereafter made by or on behalf of
any Lender or by Administrative Agent to or for the benefit of Borrower on a revolving basis
(involving advances, repayments and readvances) pursuant to Section 2.1 hereof.




          1.91. “Sanctioned Country” means a country subject to a sanctions program identified
on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/
sanctions/index.html, or as otherwise published from time to time.




          1.92. “Sanctioned Person” means (a) a person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/
eotffc/ofac/sdn/index.html, or as otherwise published from time to time, or (b) (i) an agency
of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country,
or (iii) a person resident in a Sanctioned Country, to the extent subject to a sanctions program
administered by OFAC.




          1.93. “Seasonal Advance Period” shall mean the period from and including September 1
of each year to and including January 31 of the immediately following year.




          1.94. “Securities Act” shall mean the Securities Act of 1933, as the same now exists
or may hereafter be amended, modified, recodified or supplemented, together with all rules,
regulations and interpretations thereunder or related thereto.




          1.95. “Securities Exchange Act” shall mean the Securities Exchange Act of 1934, as the
same now exists or may hereafter from time to time be amended, modified, recodified or
supplemented, together with all rules, regulations and interpretations thereunder or related
thereto.




          1.96. “Special Agent Advances” shall have the meaning set forth in Section 12.11.




          1.97. “Standard Advance Period” shall mean the period from and including February 1 of
each year to and including August 31 of such year.




          1.98. “Stated Amount” shall mean (i) in the case of termination of the Agreement, the
Maximum Credit on such date of determination and (ii) in the case of a Commitment reduction
pursuant to Section 2.4(b), the amount of such Commitment reduction.







17









 








          1.99. “Statutory Reserve Rate” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board).
Such reserve percentages shall include those imposed pursuant to such Regulation D. LIBO Loans
shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any change in any reserve
percentage.




          1.100. “Store Bank Accounts” shall have the meaning set forth in Section 6.3(a)
hereof.




          1.101. “Strategic Purchaser” shall mean a Person (i) which has its shares listed on
the American Stock Exchange or the New York Stock Exchange or quoted on the NASDAQ Global Select
Markets, (ii) which has a short term unsecured debt ratings currently assigned to them of A-1 or
better by Standard and Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc. or
P-1 by Moody’s Investors Service, Inc. (or in the absence thereof, the equivalent long term
unsecured senior debt ratings) and (iii) which either (A) owns, operates or manages a business
similar to the Existing Business or (B) owns, operates or manages a retail business, or is a
supplier to the Existing Business, and has made its investment in the shares of the Borrower as a
part of the strategy to enter the Existing Business through the Borrower or develop or
strategically integrate the Existing Business in conjunction with its own existing business. As
used herein, “Existing Business” shall mean the business of providing hairdressing, beauty
salon and other spa services and selling perfume, fragrances, cosmetics, salon products, beauty
aids and related goods and services at retail (including sales of such goods over the World Wide
Web/Internet), or any combination of any of the foregoing.




          1.102. “Subsidiary” or “subsidiary” shall mean, with respect to any Person,
any corporation, limited liability company, limited liability partnership or other limited or
general partnership, trust, association or other business entity of which an aggregate of at least
a majority of the outstanding Capital Stock or other interests entitled to vote in the election 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 have or might have voting power by reason of
the happening of any contingency), managers, trustees or other controlling persons, or an
equivalent controlling interest therein, of such Person is, at the time, directly or indirectly,
owned by such Person and/or one or more subsidiaries of such Person.




          1.103. “Swap Acknowledgment Agreement” shall have the meaning set forth in the
definition of “Obligations”.




          1.104. “Swing Line Availability” shall mean, as of any date of determination, the
lesser of (a) the Swing Line Commitment Amount on such date and (b) Excess Availability on such
date.







18









 








          1.105. “Swing Line Commitment Amount” means $10,000,000, or if less, the Maximum
Credit on such date, which commitment constitutes a subfacility of the Commitment of the Swing Line
Lender.




          1.106. “Swing Line Lender” shall mean Wells Fargo.




          1.107. “Swing Line Loan” shall have the meaning set forth in Section 2.5(a) hereof.




          1.108. “Termination Date” shall the meaning set forth in Section 13.1 hereof.




          1.109. “UCC” shall mean the Uniform Commercial Code as in effect in the State of
Illinois, and any successor statute, as in effect from time to time (except that terms used herein
which are defined in the Uniform Commercial Code as in effect in the State of Illinois on the date
hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such
statute except as Administrative Agent may otherwise determine).




          1.110. “Value” shall mean, as determined by the Agents in good faith, with respect to
Inventory, the lower of (a) Cost or (b) market value.




          1.111. “Voting Stock” shall mean with respect to any Person, (a) one (1) or more
classes of Capital Stock of such Person having general voting powers to elect at least a majority
of the board of directors, managers or trustees of such Person, irrespective of whether at the time
Capital Stock of any other class or classes have or might have voting power by reason of the
happening of any contingency, and (b) any Capital Stock of such Person convertible or exchangeable
without restriction at the option of the holder thereof into Capital Stock of such Person described
in clause (a) of this definition.




          1.112. “Wells Fargo” shall mean Wells Fargo Bank, National Association.




SECTION 2. CREDIT FACILITIES




          2.1. Revolving Loans.




          (a) Subject to and upon the terms and conditions contained herein, each Lender severally (and
not jointly) agrees to fund its Pro Rata Share of Revolving Loans to Borrower from time to time in
amounts requested by Borrower up to the amount equal to (i) during the Standard Advance Period, the
lesser of (A) eighty percent (80%) of the Value of Eligible Inventory and Eligible Letter of Credit
Inventory and (B) ninety percent (90%) of the Net Recovery Cost Percentage multiplied by the Cost
of Eligible Inventory or Eligible Letter of Credit Inventory, as applicable, or (ii) during the
Seasonal Advance Period, the lesser of (A) eighty-five percent (85%) of the Value of Eligible
Inventory and Eligible Letter of Credit Inventory and (B) ninety percent (90%) of the Net Recovery
Cost Percentage multiplied by the Cost of Eligible Inventory or Eligible Letter of Credit
Inventory, as applicable, less, in each case in clauses (i) and (ii) above, the amount of
any Availability Reserves.




          (b) The Agents may from time to time, and in each case upon not less than ten (10) days prior
notice to Borrower, reduce the lending formula with respect to Eligible Inventory






19









 







to the extent that the Agents determine that: (i) the number of days of the turnover of the
Inventory for any period has changed in any material respect or (ii) the nature, quality or mix of
the Inventory has deteriorated in any material respect. In determining whether to reduce the
lending formula(s), the Agents may consider events, conditions, contingencies or risks which are
also considered in determining Eligible Inventory or in establishing Availability Reserves. To the
extent the Agents shall have established an Availability Reserve which is sufficient to address any
event, condition or matter in a manner satisfactory to the Agents in good faith, the Agents shall
not exercise its rights under this Section 2.1(b) to reduce the lending formulas, to address such
event, condition or matter. The amount of any reduction in the lending formula by the Agents
pursuant to this Section 2.1(b) shall have a reasonable relationship to the matter which is the
basis for such a reduction.




          (c) Except in Administrative Agent’s discretion, with the consent of all Lenders, the
aggregate amount of the Loans and the Letter of Credit Accommodations outstanding at any time shall
not exceed the Maximum Credit. In the event that the outstanding amount of any component of the
Loans, or the aggregate amount of the outstanding Loans and Letter of Credit Accommodations, exceed
the amounts available under the lending formulas, sublimits for Letter of Credit Accommodations set
forth in Section 2.2(d) or the Maximum Credit, as applicable, such event shall not limit, waive or
otherwise affect any rights of Agents or Lenders in that circumstance or on any future occasions
and Borrower shall, upon demand by Administrative Agent, which may be made at any time or from time
to time, immediately repay to Administrative Agent the entire amount of any such excess(es) for
which payment is demanded.




          2.2. Letter of Credit Accommodations.




          (a) Upon the request of the LC Issuer, Borrower shall execute and deliver to the LC Issuer a
Master Letter of Credit Agreement. Borrower shall give notice to Administrative Agent and the LC
Issuer of the proposed issuance of each Letter of Credit Accommodation on a Business Day which is
at least three (3) Business Days (or such lesser number of days as Administrative Agent and the LC
Issuer shall agree in any particular instance in their sole discretion) prior to the proposed date
of issuance of such Letter of Credit Accommodation Each such notice shall be accompanied by an LC
Application, duly executed by Borrower and in all respects satisfactory to Administrative Agent and
the LC Issuer, together with such other documentation as Administrative Agent or the LC Issuer may
request in support thereof, it being understood that each LC Application shall specify, among other
things, the date on which the proposed Letter of Credit Accommodation is to be issued, the
expiration date of such Letter of Credit Accommodation (which shall not be later than the
Termination Date (unless such Letter of Credit Accommodation is cash collateralized pursuant to
Section 10.2(b)) and whether such Letter of Credit Accommodation is to be transferable in whole or
in part. Any Letter of Credit Accommodation outstanding after the Termination Date which is cash
collateralized for the benefit of the LC Issuer shall be the sole responsibility of the LC Issuer.
So long as the LC Issuer has not received written notice that the conditions precedent set forth in
Section 4 with respect to the issuance of such Letter of Credit Accommodation have not been
satisfied, and subject to the provisions of Section 2.2(h) hereof, the LC Issuer shall issue such
Letter of Credit Accommodation and of any amendment thereto, extension thereof or event or
circumstance changing the amount available for drawing thereunder. In the event of any
inconsistency between the terms of the Master Letter of Credit Agreement, any application for a
Letter of






20









 







Credit Accommodation and the terms of this Agreement, the terms of this Agreement shall
control.




          (b) The LC Issuer hereby agrees, upon request of Administrative Agent or any Lender, to
deliver to Administrative Agent or such Lender a list of all outstanding Letter of Credit
Accommodations issued by the LC Issuer, together with such information related thereto as
Administrative Agent or such Lender may reasonably request.




          (c) The LC Issuer shall notify Borrower and Administrative Agent whenever any demand for
payment is made under any Letter of Credit Accommodation by the beneficiary thereunder;
provided that the failure of the LC Issuer to so notify Borrower or Administrative Agent
shall not affect the rights of the LC Issuer or the Lenders in any manner whatsoever. Borrower
hereby unconditionally and irrevocably agrees to reimburse the LC Issuer for each payment or
disbursement made by the LC Issuer under any Letter of Credit Accommodation honoring any demand for
payment made by the beneficiary thereunder, in each case on the date that such payment or
disbursement is made. If Borrower does not pay any reimbursement obligation when due, Borrower
shall be deemed to have immediately requested that the Lenders make a Revolving Loan which is a
Prime Rate Loan in a principal amount equal to such reimbursement obligations (such Revolving Loan
shall be referred to herein as an “LC Reimbursement Loan”). Administrative Agent shall
promptly notify such Lenders of such deemed request and, without the necessity of compliance with
the requirements of Section 4, Section 6.5 or otherwise such Lender shall make available to
Administrative Agent its Pro Rata Share of such Loan. The proceeds of such Loan shall be paid over
by Administrative Agent to the LC Issuer for the account of Borrower in satisfaction of such
reimbursement obligations.




          (d) Borrower’s reimbursement obligations hereunder shall be irrevocable and unconditional
under all circumstances, including (i) any lack of validity or enforceability of any Letter of
Credit Accommodation, this Agreement or any other Financing Agreement, (ii) the existence of any
claim, set-off, defense or other right which Borrower may have at any time against a beneficiary
named in a Letter of Credit Accommodation, any transferee of any Letter of Credit Accommodation (or
any Person for whom any such transferee may be acting), Administrative Agent, the LC Issuer, any
Lender or any other Person, whether in connection with any Letter of Credit Accommodation, this
Agreement, any other Financing Agreement, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between Borrower and the beneficiary named in
any Letter of Credit Accommodation), (iii) the validity, sufficiency or genuineness of any document
which the LC Issuer has determined complies on its face with the terms of the applicable Letter of
Credit Accommodation, even if such document should later prove to have been forged, fraudulent,
invalid or insufficient in any respect or any statement therein shall have been untrue or
inaccurate in any respect, or (iv) the surrender or impairment of any security for the performance
or observance of any of the terms hereof. Without limiting the foregoing, no action or omission
whatsoever by Administrative Agent or any Lender (excluding any Lender in its capacity as the LC
Issuer) under or in connection with any Letter of Credit Accommodation or any related matters shall
result in any liability of the Administrative Agent or any Lender to Borrower, or relieve Borrower
of any of its obligations hereunder to any such Person.







21









 








          (e) Concurrently with the issuance of each Letter of Credit Accommodation, the LC Issuer shall
be deemed to have sold and transferred to each Lender with a Commitment, and each such Lender shall
be deemed irrevocably and unconditionally to have purchased and received from the Issuing Lender,
without recourse or warranty, an undivided interest and participation, to the extent of such
Lender’s Pro Rata Share, in such Letter of Credit Accommodation and Borrower’s reimbursement
obligations with respect thereto. If the LC Issuer makes any payment or disbursement under any
Letter of Credit Accommodation and (a) (x) Borrower has not reimbursed the LC Issuer in full for
such payment or disbursement by 11:00 A.M. on the date of such payment or disbursement and (y) an
LC Reimbursement Loan may not be made in accordance with Section 2.1 or (b) any reimbursement
received by the LC Issuer from Borrower is or must be returned or rescinded upon or during any
bankruptcy or reorganization of Borrower or otherwise, each other Lender shall be obligated to pay
to Administrative Agent for the account of the LC Issuer, in full or partial payment of the
purchase price of its participation in such Letter of Credit Accommodation, its Pro Rata Share of
such payment or disbursement (but no such payment shall diminish the obligations of Borrower under
Section 2.2 (c) and (d)), and, upon notice from the LC Issuer, Administrative Agent shall promptly
notify each other Lender thereof. Each other Lender irrevocably and unconditionally agrees to so
pay to Administrative Agent in immediately available funds for the LC Issuer’s account the amount
of such other Lender’s Pro Rata Share of such payment or disbursement. If and to the extent any
Lender shall not have made such amount available to Administrative Agent by 2:00 P.M. on the
Business Day on which such Lender receives notice from Administrative Agent of such payment or
disbursement (it being understood that any such notice received after 12:00 noon on any Business
Day shall be deemed to have been received on the next following Business Day), such Lender agrees
to pay interest on such amount to Administrative Agent for the LC Issuer’s account forthwith on
demand, for each day from the date such amount was to have been delivered to Administrative Agent
to the date such amount is paid, at a rate per annum equal to (a) for the first three days after
demand, the Federal Funds Rate from time to time in effect and (b) thereafter, the Prime Rate from
time to time in effect. Any Lender’s failure to make available to Administrative Agent its Pro
Rata Share of any such payment or disbursement shall not relieve any other Lender of its obligation
hereunder to make available to Administrative Agent such other Lender’s Pro Rata Share of such
payment, but no Lender shall be responsible for the failure of any other Lender to make available
to Administrative Agent such other Lender’s Pro Rata Share of any such payment or disbursement.




          (f) Except as otherwise provided in Sections 2.5 and 2.2(e), no Lender shall have an
obligation to make any Loan, or to permit the continuation of or any conversion into any LIBO Rate
Loan, and the LC Issuer shall not have any obligation to issue any Letter of Credit Accommodation,
if a Default or Event of Default exists.




          (g) In addition to any charges, fees or expenses charged by any bank or LC Issuer in
connection with the Letter of Credit Accommodations, Borrower shall pay to Administrative Agent,
for the benefit of Lenders, a letter of credit fee at a rate equal to 2.00% per annum on the daily
outstanding balance of the Letter of Credit Accommodations for the immediately preceding month (or
part thereof), payable in arrears as of the first day of each succeeding month, except that
Borrower shall pay to Administrative Agent for the ratable benefit of Lenders, such letter of
credit fee, at Administrative Agent’s option, without notice, at a rate equal to two percent (2%)
per annum in excess of the rate otherwise provided in this Section 2.2(h) on such daily






22









 







outstanding balance (i) without notice, at any time an Event of Default pursuant to any of
Sections 10.1(f), 10.1(g) and/or 10.1(h) and/or (ii) upon the written request of Required Lenders,
and otherwise without notice, for the period from and after the date of the occurrence of any Event
of Default, other than an Event of Default described in the immediately preceding clause (i), and
for so long as such Event of Default is continuing as determined by Administrative Agent. Such
letter of credit fee shall be calculated on the basis of a three hundred sixty (360) day year and
actual days elapsed and the obligation of Borrower to pay such fee shall survive the termination of
this Agreement.




          (h) No Letter of Credit Accommodations shall be available unless on the date of the proposed
issuance of any Letter of Credit Accommodations, and after giving effect thereto,





(i) Excess Availability is at least $1.00;




(ii) no order, judgment or decree of any Governmental Authority or arbitrator shall
by its terms purport to enjoin or restrain the LC Issuer from issuing such letter of
credit, or no law applicable to the LC Issuer or any request or directive (whether
or not having the force of law) from any Governmental Authority with jurisdiction
over the LC Issuer shall prohibit, or request that the LC Issuer refrain from, the
issuance of letters of credit generally or such letter of credit in particular or
shall impose upon the LC Issuer with respect to such letter of credit any
restriction, reserve or capital requirement (for which the LC Issuer is not
otherwise compensated hereunder) not in effect on the date hereof, or shall impose
upon the LC Issuer any unreimbursed loss, cost or expense which was not applicable
on the date hereof and which the LC Issuer in good faith deems material to it;




(iii) the issuance of such letter of credit would violate one or more policies of
the LC Issuer applicable to letters of credit generally; or




(iv) any Lender is at such time a Defaulting Lender or Deteriorating Lender
hereunder, unless the Administrative Agent or LC Issuer has entered into
satisfactory arrangements with the Borrower or such Lender to eliminate the LC
Issuer’s risk with respect to such Lender.



          (i) Except in Administrative Agent’s discretion, with the consent of all Lenders, the amount
of all outstanding Letter of Credit Accommodations and all other commitments and obligations made
or incurred by either Agent or any Lender in connection therewith shall not at any time exceed
$10,000,000. At any time an Event of Default exists or has occurred and is continuing, upon
Administrative Agent’s request, Borrower will either furnish cash collateral to secure the
reimbursement obligations to the LC Issuer in connection with any Letter of Credit Accommodations
or furnish cash collateral to Administrative Agent for the Letter of Credit Accommodations, and in
either case, the Loans otherwise available to Borrower shall not be reduced as provided in Section
to 2.2(i) the extent of such cash collateral.




          (j) Borrower shall indemnify and hold Agents and Lenders harmless from and against any and all
losses, claims, damages, liabilities, costs and expenses which either Agent or






23









 







any Lender may suffer or incur in connection with any Letter of Credit Accommodations and any
documents, drafts or acceptances relating thereto, including any losses, claims, damages,
liabilities, costs and expenses due to any action taken by any LC Issuer or correspondent with
respect to any Letter of Credit Accommodation. Borrower assumes all risks with respect to the acts
or omissions of the drawer under or beneficiary of any Letter of Credit Accommodation and for such
purposes the drawer or beneficiary shall be deemed Borrower’s agent. Borrower assumes all risks
for, and agrees to pay, all foreign, Federal, State and local taxes, duties and levies relating to
any goods subject to any Letter of Credit Accommodations or any documents, drafts or acceptances
thereunder. Borrower hereby releases and holds Agents and Lenders harmless from and against any
acts, waivers, errors, delays or omissions, whether caused by Borrower, by any LC Issuer or
correspondent or otherwise with respect to or relating to any Letter of Credit Accommodation,
except for the gross negligence or willful misconduct of either Agent or any Lender as determined
pursuant to a final, non-appealable order of a court of competent jurisdiction. The provisions of
this Section 2.2(k) shall survive the payment of Obligations and the termination of this Agreement.




          (k) Nothing contained herein shall be deemed or construed to grant Borrower any right or
authority to pledge the credit of either Agent or any Lender in any manner. Agents and Lenders
shall have no liability of any kind with respect to any Letter of Credit Accommodation provided by
an LC Issuer other than either Agent or any Lender unless Administrative Agent has duly executed
and delivered to such LC Issuer the application or a guarantee or indemnification in writing with
respect to such Letter of Credit Accommodation. Borrower shall be bound by any interpretation made
in good faith by Administrative Agent, or any other LC Issuer or correspondent under or in
connection with any Letter of Credit Accommodation or any documents, drafts or acceptances
thereunder, notwithstanding that such interpretation may be inconsistent with any instructions of
Borrower. At any time an Event of Default exists or has occurred and is continuing, Administrative
Agent shall have the sole and exclusive right and authority to, and Borrower shall not: (i) approve
or resolve any questions of non-compliance of documents, (ii) give any instructions as to
acceptance or rejection of any documents or goods, (iii) execute any and all applications for
steamship or airway guaranties, indemnities or delivery orders, (iv) grant any extensions of the
maturity of, time of payment for, or time of presentation of, any drafts, acceptances, or
documents, or (v) agree to any amendments, renewals, extensions, modifications, changes or
cancellations of any of the terms or conditions of any of the applications, Letter of Credit
Accommodations, or documents, drafts or acceptances thereunder or any letters of credit included in
the Collateral; provided, that, Borrower shall not, at any time prior to an Event
of Default, take any of the actions specified in clauses (iv) and (v) above except after prior
written notice to Administrative Agent and with the prior written consent of Administrative Agent,
if Administrative Agent shall determine in good faith that any such action shall increase the risk
of Agents or Lenders with respect to such Letter of Credit Accommodations. Administrative Agent
may take such actions either in its own name or in Borrower’s name.




          (l) Any rights, remedies, duties or obligations granted or undertaken by Borrower to any LC
Issuer or correspondent in any application for any Letter of Credit Accommodation, or any other
agreement in favor of any LC Issuer or correspondent relating to any Letter of Credit
Accommodation, shall be deemed to have been granted or undertaken by Borrower to Administrative
Agent for the ratable benefit of Lenders. Any duties or obligations undertaken by






24









 







Administrative Agent to any LC Issuer or correspondent in any application for any Letter of
Credit Accommodation, or any other agreement by Administrative Agent in favor of any LC Issuer or
correspondent relating to any Letter of Credit Accommodation, shall be deemed to have been
undertaken by Borrower to Administrative Agent for the ratable benefit of Lenders and to apply in
all respects to Borrower.




          2.3. Availability Reserves.




     Without limiting any other rights and remedies of Agents or Lenders hereunder or under the
other Financing Agreements, all Loans and Letter of Credit Accommodations otherwise available to
Borrower shall be subject to the right of Agents from time to time, to establish and revise in good
faith reserves reducing the amount of Loans and Letter of Credit Accommodations that would
otherwise be available to Borrower (“Availability Reserves”): (a) to reflect events,
conditions or contingencies that, as determined by the Agents in good faith, adversely affect or
have a reasonable likelihood of adversely affecting either (i) the Collateral or any other property
which is security for the Obligations, its value or the amount which may be realized by Collateral
Agent from the sale or other disposition thereof, or (ii) the assets or financial condition of
Borrower or any Obligor, or (iii) the security interests and other rights of Collateral Agent in
the Collateral (including the enforceability, perfection and priority thereof), or (b) to reflect
either Agent’s good faith belief that any collateral report or financial information furnished by
or on behalf of Borrower or any Obligor to Agents is or may have been incomplete, inaccurate or
misleading in any material respect, or (c) in respect of any state of facts which either Agent
determines in good faith constitutes an Event of Default or may, with notice or passage of time or
both, constitute an Event of Default, or (d) to reflect inventory shrinkage (as reflected on the
most recent financial statements delivered pursuant to Section 9.6(a)(i)), or (e) to reflect the
aggregate amount of deposits, if any, received by Borrower from its retail customers in respect of
unfilled orders, or (f) to reflect amounts due or to become due in respect of sales, use and/or
withholding taxes, provided, that, an Availability Reserve pursuant to this Section
2.3(f) will only be established if (i) Excess Availability (without giving effect to any reserve
for such amounts) shall be less than $1,000,000, or (ii) an Event of Default or act, condition or
event which with notice or passage of time or both would constitute an Event of Default, shall
exist or have occurred and be continuing, or (g)(i) to reflect any rental payments, service charges
or other amounts past due to lessors of real or personal property, and (ii) to reflect any rental
payments, service charges or other amounts to become due to lessors of real or personal property,
which Availability Reserve shall be calculated in accordance with clause (c) of the definition of
Eligible Inventory (excluding from this clause (g)(ii) only, (A) lessors from whom a
Landlord Agreement is not required to be delivered under the definition of Eligible
Inventory or (B) lessors from whom a Landlord Agreement is required to be delivered under the
definition of Eligible Inventory and who have executed and delivered Landlord Agreements)
to the extent Inventory or Records are located in or on such property or such Records are needed to
monitor or otherwise deal with the Collateral, or (h) to reflect net amounts owing by Borrower to
Credit Card Issuers or Credit Card Processors in connection with the Credit Card Agreements, or (i)
for Bank Product Reserves and Cash Management Reserves. To the extent the Agents may revise the
lending formula set forth in Section 2.1 hereof or establish new criteria or revise existing
criteria for Eligible Inventory so as to address any circumstance, condition, event or contingency
in a manner satisfactory to the Agents, the Agents shall not establish an Availability Reserve for
the same purpose (and, for clarity, any limitations on the Agents’ rights to revise the lending
formula



25









 




set forth in Section 2.1 hereof or to establish new criteria or revise existing criteria for
Eligible Inventory, shall in no way limit the right of the Agents to establish or modify
Availability Reserves). The amount of any Availability Reserve established by the Agents shall have
a reasonable relationship to the event, condition or other matter which, is the basis for such
reserve as determined by the Agents in good faith.




          2.4. Commitments.




          (a) The aggregate amount of each Lender’s Pro Rata Share of the Loans and Letter of Credit
Accommodations shall not exceed the amount of such Lender’s Commitments, as the same may from time
to time be amended in accordance with the provisions hereof.




          (b) Borrower may at any time upon at least five (5) days’ prior written notice to the
Administrative Agent permanently reduce the Commitments hereunder; provided that (A) the
Commitments may not be reduced to less than fifty percent (50%) of the Maximum Credit in effect
immediately prior to such reduction, (B) any such reduction shall be in a minimum amount of
$5,000,000 and integral multiples of $250,000 in excess of such amount, and (C) such reduction must
be accompanied by payment of any funding breakage costs in accordance with Section 3.1(c).




          2.5. Swing Line Facility.




          (a) The Administrative Agent shall notify the Swing Line Lender upon the Administrative
Agent’s receipt of any Notice of Borrowing (as defined in Section 6.5) that requests a Swing Line
Loan. Subject to the terms and conditions hereof, upon the Borrower’s request for a Swing Line
Loan as set forth in the applicable Notice of Borrowing, the Swing Line Lender may, in its sole
discretion, make available from time to time until the Termination Date advances (each, a
“Swing Line Loan”) in accordance with any such notice, notwithstanding that after making a
requested Swing Line Loan, the sum of the Swing Line Lender’s Pro Rata Share of the Revolving Loans
outstanding and all outstanding Swing Line Loans may exceed the Swing Line Lender’s Pro Rata Share
of the Commitment. The provisions of this Section 2.5 shall not relieve Lenders of their
obligations to make Revolving Loans under Section 2.1; provided that if the Swing Line
Lender makes a Swing Line Loan pursuant to any such notice, such Swing Line Loan shall be in lieu
of any Revolving Loan that otherwise may be made by the Lenders pursuant to such notice. The
aggregate amount of Swing Line Loans outstanding shall not exceed at any time Swing Line
Availability. Until the Termination Date, the Borrower may from time to time borrow, repay and
reborrow under this Section 2.5; provided that the Swing Line Lender shall not be obligated
to make any Swing Line Loan at any time when any Lender is at such time a Defaulting Lender or
Deteriorating Lender hereunder, unless the Swing Line Lender has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the Swing Line Lender’s risk with
respect to such Lender. Each Swing Line Loan shall be made pursuant to a Notice of Borrowing
delivered by the Borrower to the Administrative Agent in accordance with Section 6.5(a). Any such
notice must be given no later than 2:00 P.M. on the Business Day of the proposed Swing Line Loan.
Unless the Swing Line Lender has received at least one Business Day’s prior written notice from the
Required Lenders instructing it not to make a Swing Line Loan, the Swing Line Lender shall,
notwithstanding the failure of any condition precedent set forth in Section 4.2, be entitled to
fund that Swing Line Loan, and to






26









 







have the Lenders make Revolving Loans in accordance with Section 2.5(c) or purchase
participating interests therein in accordance with Section 2.5(d). Notwithstanding any other
provision of this Agreement or the other Loan Documents, each Swing Line Loan shall constitute a
Prime Rate Loan. The Borrower shall repay the aggregate outstanding principal amount of each Swing
Line Loan upon demand therefore by the Administrative Agent.




          (b) The entire unpaid balance of each Swing Line Loan and all other noncontingent Obligations
shall be immediately due and payable in full in immediately available funds on the Termination Date
if not sooner paid in full.




          (c) The Swing Line Lender, at any time and from time to time no less frequently than once
weekly, shall on behalf of the Borrower (and the Borrower hereby irrevocably authorizes the Swing
Line Lender to so act on its behalf) request each Lender with a Commitment (including the Swing
Line Lender) to make a Revolving Loan to the Borrower (which shall be a Prime Rate Loan) in an
amount equal to that Lender’s Pro Rata Share of the principal amount of all Swing Line Loans (the
“Refunded Swing Line Loan”) outstanding on the date such notice is given. Unless any of
the events described in any of Sections 10.1(f), 10.1(g) or 10.1(h) has occurred (in which event
the procedures of Section 2.5(d) shall apply) and regardless of whether the conditions precedent
set forth in this Agreement to the making of a Revolving Loan are then satisfied, each Lender shall
disburse directly to the Administrative Agent, its Pro Rata Share on behalf of the Swing Line
Lender, prior to 2:00 P.M. in immediately available funds on the date that notice is given
(provided that such notice is given by 12:00 noon on such date, which shall be a Business
Day). The proceeds of those Revolving Loans shall be immediately paid to the Swing Line Lender and
applied to repay the Refunded Swing Line Loan.




          (d) If, prior to refunding a Swing Line Loan with a Revolving Loan pursuant to Section 2.5(c),
one of the events described in any of Sections 10.1(f), 10.1(g) or 10.1(h) has occurred, then,
subject to the provisions of Section 2.5(e) below, each Lender shall, on the date such Revolving
Loan was to have been made for the benefit of the Borrower, purchase from the Swing Line Lender an
undivided participation interest in the Swing Line Loan in an amount equal to its Pro Rata Share of
such Swing Line Loan. Upon request, each Lender shall promptly transfer to the Swing Line Lender,
in immediately available funds, the amount of its participation interest.




          (e) Each Lender’s obligation to make Revolving Loans in accordance with Section 2.5(c) and to
purchase participation interests in accordance with Section 2.5(d) shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default or Event of Default; (iii) any inability of the Borrower to satisfy the
conditions precedent to borrowing set forth in this Agreement at any time or (iv) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If
and to the extent any Lender shall not have made such amount available to the Administrative Agent
or the Swing Line Lender, as applicable, by 2:00 P.M. the amount required pursuant to Sections
2.5(c) or 2.5(d), as the case may be, on the Business Day on which such Lender receives notice from
the Administrative Agent of such payment or disbursement (it being understood that any such notice
received after noon on any Business Day shall be deemed to






27









 







have been received on the next following Business Day), such Lender agrees to pay interest on
such amount to the Administrative Agent for the Swing Line Lender’s account forthwith on demand,
for each day from the date such amount was to have been delivered to the Administrative Agent to
the date such amount is paid, at a rate per annum equal to (a) for the first three days after
demand, the Federal Funds Rate from time to time in effect and (b) thereafter, the Prime Rate from
time to time in effect.




SECTION 3. INTEREST AND FEES




          3.1. Interest.




          (a) Borrower shall pay to Administrative Agent, for the benefit of Lenders, interest on the
outstanding principal amount of the Loans at the Interest Rate. All interest accruing hereunder on
and after the date of any Event of Default or termination hereof shall be payable on demand.




          (b) Borrower may from time to time request that Prime Rate Loans be converted to LIBO Rate
Loans or that any existing LIBO Rate Loans continue for an additional Interest Period. Borrower
shall give written notice (each such written notice, a “Notice of Conversion/Continuation”)
substantially in the form of Exhibit D or telephonic notice (followed immediately by a
Notice of Conversion/Continuation) to the Administrative Agent of each proposed conversion or
continuation not later than (i) in the case of conversion into Prime Rate Loans, 12:00 noon on the
proposed date of such conversion and (ii) in the case of conversion into or continuation of LIBO
Rate Loans, 12:00 noon at least three (3) Business Days prior to the proposed date of such
conversion or continuation, specifying in each case: (A) the proposed date of conversion or
continuation, (B) the aggregate amount of Loans to be converted or continued, (C) the type of Loans
resulting from the proposed conversion or continuation, and (D) in the case of conversion into, or
continuation of, LIBO Rate Loans, the duration of the requested Interest Period therefore. Subject
to the terms and conditions contained herein, three (3) Business Days after receipt by
Administrative Agent of such a request from Borrower, such Prime Rate Loans shall be converted to
LIBO Rate Loans or such LIBO Rate Loans shall continue, as the case may be, provided,
that, (i) no Default or Event of Default shall exist or have occurred and be continuing,
(ii) no party hereto shall have sent any notice of termination of this Agreement, (iii) Borrower
shall have complied with such customary procedures as are established by Administrative Agent and
specified by Administrative Agent to Borrower from time to time for requests by Borrower for LIBO
Rate Loans, (iv) no more than ten (10) Interest Periods may be in effect at any one time, (v) the
aggregate amount of the LIBO Rate Loans must be in an amount not less than $2,000,000 or an
integral multiple of $100,000 in excess thereof and (vi) Administrative Agent and each Lender shall
have determined that the Interest Period or Adjusted LIBO Rate is available to Administrative Agent
and such Lender and can be readily determined as of the date of the request for such LIBO Rate Loan
by Borrower. Any request by Borrower to convert Prime Rate Loans to LIBO Rate Loans or to continue
any existing LIBO Rate Loans shall be irrevocable. Notwithstanding anything to the contrary
contained herein, Agents and Lenders shall not be required to purchase United States Dollar
deposits in the London interbank market or other applicable LIBO Rate market to fund any LIBO Rate
Loans, but the provisions hereof shall be deemed to apply as if Agents and Lenders had purchased
such deposits to fund the LIBO Rate Loans. Administrative Agent will promptly notify each Lender of
its receipt of a





28












 




Notice of Conversion/Continuation pursuant to this Section 3.1(b) or, if no timely
notice is provided by the Borrower, of the details of any automatic conversion.




          (c) Any LIBO Rate Loans shall automatically convert to Prime Rate Loans upon the last day of
the applicable Interest Period, unless Administrative Agent has received and approved a request to
continue such LIBO Rate Loan at least three (3) Business Days prior to such last day in accordance
with the terms hereof. Any LIBO Rate Loans shall, at Administrative Agent’s option, upon notice by
Administrative Agent to Borrower, convert to Prime Rate Loans in the event that (i) a Default or an
Event of Default shall exist, (ii) this Agreement shall terminate or not be renewed, or (iii) the
aggregate principal amount of the Prime Rate Loans which have previously been converted to LIBO
Rate Loans or existing LIBO Rate Loans continued, as the case may be, at the beginning of an
Interest Period shall at any time during such Interest Period exceed either (A) the aggregate
principal amount of the Loans then outstanding, or (B) the Loans then available to Borrower under
Section 2 hereof. Borrower shall pay to Administrative Agent, for the benefit of Lenders, upon
demand by Administrative Agent (or Administrative Agent may, at its option, charge any loan account
of Borrower) any amounts required to compensate any Lender, the Administrative Agent or any
Participant for any loss (other than the loss of anticipated profits), cost or expense reasonably
incurred by such person, as a result of the conversion of LIBO Rate Loans to Prime Rate Loans
pursuant to any of the foregoing.




          (d) Interest accruing in respect of Prime Rate Loans shall be payable by Borrower to
Administrative Agent, for the benefit of Lenders, quarterly in arrears not later than the last day
of each calendar quarter and shall be calculated on the basis of a three hundred sixty (360) day
year and actual days elapsed. Interest accruing in respect of LIBO Rate Loans shall be payable on
the last day of each applicable Interest Period, unless the Interest Period is greater than three
(3) months, in which case interest shall be payable on the last day of each three (3) month
interval commencing with the first day of such Interest Period. The interest rate on
non-contingent Obligations (other than LIBO Rate Loans) shall increase or decrease by an amount
equal to each increase or decrease in the Prime Rate effective on the first day of the month after
any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the
month in which any such change occurs. In no event shall charges constituting interest payable by
Borrower to Agents and Lenders exceed the maximum amount or the rate permitted under any applicable
law or regulation, and if any such part or provision of this Agreement is in contravention of any
such law or regulation, such part or provision shall be deemed amended to conform thereto.




          3.2. Other Fees.




          (a) Borrower shall pay to Administrative Agent, for the account of Lenders, monthly as billed,
an unused line fee at a rate equal to 0.25% per annum calculated upon the amount by which the
Maximum Credit (or in the event that the Maximum Credit has changed during a measuring period, the
average daily Maximum Credit during such period) exceeds the average daily principal balance of the
outstanding Revolving Loans and Letter of Credit Accommodations during the immediately preceding
calendar quarter (or part thereof), which fee shall be payable on the last day of each calendar
quarter in arrears.







29









 








          (b) Borrower agrees to pay the Administrative Agent for the account of each Lender on the
Closing Date a closing fee for each Lender of 0.20% of their respective Commitment plus, for PNC’s
account, an additional one-time fee of 0.20% of the Commitment of PNC.




          (c) Borrower agrees to pay to Administrative Agent the other fees and amounts set forth in the
Fee Letter in the amounts and at the times specified therein.




          3.3. Changes in Laws and Increased Costs of Loans.




          (a) Notwithstanding anything to the contrary contained herein, all LIBO Rate Loans of any
Lender shall, upon notice by Administrative Agent to Borrower, convert to Prime Rate Loans in the
event that (i) any change in applicable law or regulation (or the interpretation or administration
thereof) shall either (A) make it unlawful for such Lender to make or maintain LIBO Rate Loans or
to comply with the terms hereof in connection with the LIBO Rate Loans, or (B) shall result in the
increase in the costs to such Lender of making or maintaining any LIBO Rate Loans by an amount
deemed by Administrative Agent to be material, or (C) reduce the amounts received or receivable by
such Lender in respect thereof, by an amount deemed by Administrative Agent to be material or (ii)
the cost to such Lender of making or maintaining any LIBO Rate Loans shall otherwise increase by an
amount deemed by Administrative Agent to be material. Borrower shall pay to Administrative Agent,
for the ratable benefit of Lenders, upon demand by Administrative Agent (or Administrative Agent
may, at its option, charge any loan account of Borrower) any amounts required to compensate any
Lender for any loss (including loss of anticipated profits), cost or expense incurred by such
person as a result of the foregoing, including, without limitation, any such loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
person to make or maintain the LIBO Rate Loans or any portion thereof. A certificate of
Administrative Agent or the applicable Lender setting forth the basis for the determination of such
amount necessary to compensate such Lender as aforesaid shall be delivered to Borrower and shall be
presumptive evidence of such amount.




          (b) If any payments or prepayments in respect of the LIBO Rate Loans are received by either
Agent or any Lender other than on the last day of the applicable Interest Period (whether pursuant
to acceleration, upon maturity or otherwise), including any payments pursuant to the application of
collections under Section 6.3 or any other payments made with the proceeds of Collateral, or if the
Borrower fails to prepay, borrow, continue or convert any LIBO Rate Loan other than a Base Rate
Loan on the date or in the amount notified by the Borrower, Borrower shall pay to Administrative
Agent, upon demand by Administrative Agent (or Administrative Agent may, at its option, charge any
loan account of Borrower) any amounts required to compensate any Lender or any Participant for any
additional loss (including loss of anticipated profits), cost or expense incurred by such person as
a result of such prepayment or payment, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
person to make or maintain such LIBO Rate Loans or any portion thereof. A certificate of
Administrative Agent or the applicable Lender setting forth the basis for the determination of such
amount necessary to compensate such Lender shall be delivered to Borrower and shall be presumptive
evidence of such amount.







30









 








          (c) If any Lender delivers notice pursuant to Sections 3.3(a) and 3.3(b) above in which such
Lender asserts a claim for compensation which claim is not being asserted by the other Lenders,
Borrower may require within 90 days of receiving such notice, at its expense, that such Lender
assign, at par, without recourse (in accordance with Section 13.6(a) hereof) all of its interests,
rights and obligations hereunder and under the other Financing Agreements (including all of its
Commitments and the Loans at the time owing to it and any participations in Loans held by it) to an
Eligible Transferee proposed by Borrower (a “Substitute Lender”), provided, that
(i) no Event of Default shall exist at the time of such assignment, (ii) such assignment shall not
conflict with or violate any law, rule or regulation or order of any court or other governmental
authority, (iii) Borrower shall have received the written consent of Administrative Agent to such
assignment (which consent shall not be unreasonably withheld or delayed) and (iv) Borrower shall
have paid to the assigning Lender all monies accrued and owing hereunder to it (including pursuant
to Sections 3.3(a) and 3.3(b) above.




          (d) Promptly after any Lender becomes aware of any circumstance that will, in its sole
judgment, result in a request for increased compensation pursuant to Sections 3.3(a) and 3.3(b)
above, such Lender shall notify the Borrower thereof. Each Lender will use reasonable efforts to
designate a lending office (or a different lending office), so long as such designation is not
adverse to such Lender in such Lender’s sole judgment, if such designation would avoid the need to,
or reduce the amount which would be required to, compensate such Lender for any additional costs
incurred or reductions suffered. Failure on the part of any Lender to so notify Borrower or to
demand compensation for any increased costs in amounts received or receivable with respect to any
period shall not constitute a waiver of such Lender’s right to demand compensation with respect to
such period or any other period.



SECTION 4. CONDITIONS PRECEDENT




          4.1. Conditions Precedent to Initial Loans and Letter of Credit Accommodations.




     Each of the following is a condition precedent to Agents and Lenders making the initial Loans
and providing the initial Letter of Credit Accommodations hereunder:



          (a) all requisite corporate action and proceedings in connection with this Agreement and the
other Financing Agreements shall be satisfactory in form and substance to Administrative Agent, and
Administrative Agent shall have received all information and copies of all documents, including
records of requisite corporate action and proceedings which Administrative Agent may have requested
in connection therewith, such documents where requested by Administrative Agent or its counsel to
be certified by appropriate corporate officers or Governmental Authority (and including a copy of
the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent
Governmental Authority) which shall set forth the same complete corporate name of Borrower as is
set forth herein and such document as shall set forth the organizational identification number of
Borrower, if one is issued in its jurisdiction of incorporation);




          (b) Agents shall have received evidence, in form and substance satisfactory to Agents, that
the 2007 Loan Agreement has been terminated, that all amounts owing thereunder






31









 







have been paid in full, that all liens under the Prior Loan Agreement have been released and
that Collateral Agent has a valid perfected first priority security interest in all of the
Collateral, subject only to the security interests and liens permitted herein;




          (c) Agents shall have received and reviewed lien and judgment search results for the
jurisdiction of incorporation of Borrower, the jurisdiction of the chief executive office of
Borrower, and with respect to Intellectual Property, from the United States Patent and Trademark
Office and Copyright Office, which search results shall be in form and substance satisfactory to
Agents;




          (d) Agents shall have received, in form and substance satisfactory to Agents, such opinion
letters of counsel to Borrower with respect to the Financing Agreements and such other matters as
Agents may reasonably request;




          (e) Administrative Agent shall have received evidence of payment by Borrower of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date,
together with all reasonable legal expenses and reasonable attorneys’ fees incurred by the Agents,
plus such additional amounts as shall constitute the Agents’ reasonable estimate of reasonable
legal expenses and reasonable attorneys’ fees incurred or to be incurred by the Agents through the
closing proceedings (provided that such estimate shall not thereafter preclude final settling of
accounts between Borrower and the Agents);




          (f) Administrative Agent shall have received evidence of the existence of insurance required
to be maintained pursuant to Section 9.5, together with evidence that the Collateral Agent
is named as a lender’s loss payee under Borrower’s property insurance policy and each Agent has
been named as an additional insured under Borrower’s liability insurance policy;




          (g) the other Financing Agreements and all instruments and documents hereunder and thereunder
required by Administrative Agent shall have been duly executed and delivered to Administrative
Agent, in form and substance satisfactory to Administrative Agent, including, without limitation,
the agreements, instruments and documents set forth on the closing checklist attached as
Exhibit E hereto.




          4.2. Conditions Precedent to All Loans and Letter of Credit Accommodations.




     Each of the following is an additional condition precedent to Agents and Lenders making Loans
and/or providing Letter of Credit Accommodations to Borrower, including the initial Loans and
Letter of Credit Accommodations and any future Loans and Letter of Credit Accommodations:



          (a) all representations and warranties contained herein and in the other Financing Agreements
shall be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of the making of each such Loan
or providing each such Letter of Credit Accommodation and after giving effect thereto, except to
the extent that such representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and accurate on and as of such
earlier date);







32









 








          (b) no law, regulation, order, judgment or decree of any Governmental Authority shall exist,
and no action, suit, investigation, litigation or proceeding shall be pending or threatened in any
court or before any arbitrator or Governmental Authority, which (i) purports to enjoin, prohibit,
restrain or otherwise affect (A) the making of the Loans or providing the Letter of Credit
Accommodations, or (B) the consummation of the transactions contemplated pursuant to the terms
hereof or the other Financing Agreements or (ii) has or could reasonably be expected to have a
material adverse effect on the assets, business or prospects of Borrower or would impair the
ability of Borrower to perform its obligations hereunder or under any of the other Financing
Agreements or of either Agent or any Lender to enforce any Obligations or realize upon any of the
Collateral; and




          (c) no Default or Event of Default shall exist or have occurred and be continuing on and as of
the date of the making of such Loan or providing each such Letter of Credit Accommodation and after
giving effect thereto.



SECTION 5. GRANT AND PERFECTION OF SECURITY INTEREST




          5.1. Grant of Security Interest.




     To secure payment and performance of all Obligations, Borrower hereby grants to Collateral
Agent, for itself and the ratable benefit of Lenders, a continuing security interest in, a lien
upon, and a right of set off against, and hereby assigns to Collateral Agent, for itself and the
ratable benefit of Lenders, as security, all personal and real property and fixtures and interests
in property and fixtures of Borrower, whether now owned or hereafter acquired or existing, and
wherever located (together with all other collateral security for the Obligations at any time
granted to or held or acquired by either Agent or any Lender, collectively, the
“Collateral”), including:



          (a) all Accounts;




          (b) all general intangibles, including, without limitation, all Intellectual Property;




          (c) all goods, including, without limitation, Inventory and Equipment;




          (d) all chattel paper (including all tangible and electronic chattel paper);




          (e) all instruments (including all promissory notes);




          (f) all documents;




          (g) all deposit accounts;




          (h) all letters of credit, banker’s acceptances and similar instruments and including all
letter-of-credit rights;




          (i) all supporting obligations and all present and future liens, security interests, rights,
remedies, title and interest in, to and in respect of Receivables and other Collateral, including
(i) rights and remedies under or relating to guaranties, contracts of suretyship, letters of






33









 







credit and credit and other insurance related to the Collateral, (ii) rights of stoppage in
transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor,
lienor or secured party, (iii) goods described in invoices, documents, credit card sales drafts,
credit card sales slips or charge slips or receipts and other forms of store receipts, contracts or
instruments with respect to, or otherwise representing or evidencing, Receivables or other
Collateral, including returned, repossessed and reclaimed goods, and (iv) deposits by and property
of account debtors or other persons securing the obligations of account debtors;




          (j) all (i) investment property (including securities, whether certificated or uncertificated,
securities accounts, security entitlements, commodity contracts or commodity accounts) and (ii)
monies, credit balances, deposits and other property of Borrower now or hereafter held or received
by or in transit to either Agent, any Lender or their Affiliates or at any other depository or
other institution from or for the account of Borrower, whether for safekeeping, pledge, custody,
transmission, collection or otherwise;




          (k) all commercial tort claims, including, without limitation, those identified in the
Information Certificate;




          (l) to the extent not otherwise described above, all Receivables;




          (m) all Records; and




          (n) all products and proceeds of the foregoing, in any form, including insurance proceeds and
all claims against third parties for loss or damage to or destruction of or other involuntary
conversion of any kind or nature of any or all of the other Collateral.




          5.2. Exception from Security Interest.




          (a) Notwithstanding anything to the contrary set forth in Section 5.1 above, the types or
items of Collateral described in such Section shall not include any rights or interests in any
contract, lease, permit, license, charter or license agreement covering real or personal property,
as such, if under the terms of such contract, lease, permit, license, charter or license agreement,
or applicable law with respect thereto, the valid grant of a security interest or lien therein to
Collateral Agent is prohibited and such prohibition has not been or is not waived or the consent of
the other party to such contract, lease, permit, license, charter or license agreement has not been
or is not otherwise obtained or under applicable law such prohibition cannot be waived;
provided, that, the foregoing exclusion shall in no way be construed (a) to apply
if any such prohibition is unenforceable under the UCC or other applicable law or (b) so as to
limit, impair or otherwise affect Collateral Agent’s unconditional continuing security interests in
and liens upon any rights or interests of Borrower in or to monies due or to become due under any
such contract, lease, permit, license, charter or license agreement (including any Accounts).




          (b) Notwithstanding anything to the contrary contained in Section 5.1 above, the Collateral
shall not include the trademark “Studio Gear” to the extent such trademark is licensed to
Studio Gear Cosmetics, Inc. pursuant to the License and Distribution Agreement, dated May, 1996,
between Borrower and Studio Gear Cosmetics, Inc.







34









 








          (c) Notwithstanding anything to the contrary contained in Section 5.1 above, the types or
items of Collateral described in such Section shall not include any Equipment which is, or at the
time of Borrower’s acquisition thereof shall be, subject to a purchase money mortgage or other
purchase money lien or security interest (including capitalized or finance leases) permitted under
Section 9.8 hereof if: (a) the valid grant of a security interest or lien to Collateral Agent in
such item of Equipment is prohibited by the terms of the agreement between Borrower and the holder
of such purchase money mortgage or other purchase money lien or security interest or under
applicable law and such prohibition has not been or is not waived, or the consent of the holder of
the purchase money mortgage or other purchase money lien or security interest has not been or is
not otherwise obtained, or under applicable law such prohibition cannot be waived and (b) the
purchase money mortgage or other purchase money lien or security interest on such item of Equipment
is or shall become valid and perfected.




          5.3. Perfection of Security Interest




          (a) Borrower irrevocably and unconditionally authorizes Collateral Agent (or its agent) to
file at any time and from time to time such financing statements with respect to the Collateral
naming Collateral Agent or its designee as the secured party and Borrower as debtor, as Collateral
Agent may require, and including any other information with respect to Borrower or otherwise
required by part 5 of Article 9 of the Uniform Commercial Code of such jurisdiction as Collateral
Agent may determine, together with any amendment and continuations with respect thereto, which
authorization shall apply to all financing statements filed on, prior to or after the date hereof.
Borrower hereby ratifies and approves all financing statements naming Collateral Agent or its
designee as secured party and Borrower as debtor with respect to the Collateral (and any amendments
with respect to such financing statements) filed by or on behalf of Collateral Agent prior to the
date hereof and ratifies and confirms the authorization of Collateral Agent to file such financing
statements (and amendments, if any). Borrower hereby authorizes Collateral Agent to adopt on
behalf of Borrower any symbol required for authenticating any electronic filing. In the event that
the description of the collateral in any financing statement naming Collateral Agent or its
designee as the secured party and Borrower as debtor includes assets and properties of Borrower
that do not at any time constitute Collateral, whether hereunder, under any of the other Financing
Agreements or otherwise, the filing of such financing statement shall nonetheless be deemed
authorized by Borrower to the extent of the Collateral included in such description and it shall
not render the financing statement ineffective as to any of the Collateral or otherwise affect the
financing statement as it applies to any of the Collateral. In no event shall Borrower at any time
file, or permit or cause to be filed, any correction statement or termination statement with
respect to any financing statement (or amendment or continuation with respect thereto) naming
Collateral Agent or its designee as secured party and Borrower as debtor.




          (b) Borrower does not have any chattel paper (whether tangible or electronic) or instruments
as of the date hereof, except as set forth in the Information Certificate. In the event that
Borrower shall be entitled to or shall receive any chattel paper or instrument after the date
hereof, Borrower shall promptly notify the Agents thereof in writing. Promptly upon the receipt
thereof by or on behalf of Borrower (including by any agent or representative), Borrower shall
deliver, or cause to be delivered to Collateral Agent, all tangible chattel paper and instruments
that Borrower or may at any time acquire, accompanied by such instruments of transfer or assignment
duly executed in blank as Collateral Agent may from time to time specify, in each






35









 







case except as the Agents may otherwise agree. At the Agents’ option, Borrower shall, or
Collateral Agent may at any time on behalf of Borrower, cause the original of any such instrument
or chattel paper to be conspicuously marked in a form and manner acceptable to the Agents with the
following legend referring to chattel paper or instruments as applicable: “This [chattel
paper][instrument] is subject to the security interest of Wells Fargo Retail Finance LLC, as
Collateral Agent, and any sale, transfer, assignment or encumbrance of this [chattel
paper][instrument] violates the rights of such secured party.”




          (c) In the event that Borrower shall at any time hold or acquire an interest in any electronic
chattel paper or any “transferable record” (as such term is defined in Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform
Electronic Transactions Act as in effect in any relevant jurisdiction), Borrower shall promptly
notify the Agents thereof in writing. Promptly upon the Agents’ request, Borrower shall take, or
cause to be taken, such actions as the Agents may reasonably request to give Collateral Agent
control of such electronic chattel paper under Section 9-105 of the UCC and control of such
transferable record under Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as in
effect in such jurisdiction.




          (d) Borrower does not have any deposit accounts as of the date hereof, except as set forth on
Schedule 6.3 to the Information Certificate. Within sixty (60) days after the Closing Date (or
such longer period of time as to which the Required Lenders may agree in their sole discretion),
Borrower shall have (x) executed and delivered to the Administrative Agent a Deposit Account
Control Agreement with JPMorgan Chase Bank, N.A. with respect to the store concentration account
and the credit card receipts accounts maintained with such bank, and (y) directed its credit card
processors to deposit any and all payments and other amounts at any time owed by such credit card
processors into such account with JPMorgan Chase Bank, N.A.. Within thirty (30) days after the
occurrence and during the continuance of a Control Event, Borrower shall execute and deliver (i)
Deposit Account Control Agreements with respect to the Blocked Accounts and (ii) Investment
Property Control Agreement in respect of any investment accounts or securities accounts containing
assets with a fair market value in excess of $500,000 in the aggregate, in each case as the
Administrative Agent may reasonably require from time to time. In addition, Borrower shall not,
directly or indirectly, after the date hereof open, establish or maintain any deposit account
unless each of the following conditions is satisfied: (i) Collateral Agent shall have received not
less than five (5) Business Days prior written notice of the intention of Borrower to open or
establish such account which notice shall specify in reasonable detail and specificity acceptable
to the Agents the name of the account, the owner of the account, the name and address of the bank
at which such account is to be opened or established, the individual at such bank with whom
Borrower is dealing and the purpose of the account, (ii) the bank where such account is opened or
maintained shall be acceptable to the Agents, and (iii) on or before the opening of such deposit
account, Borrower shall as the Agents may specify either (A) if then required pursuant to the terms
of this subsection (d) above, deliver to Collateral Agent a Deposit Account Control Agreement with
respect to such deposit account duly authorized, executed and delivered by Borrower and the bank at
which such deposit account is opened and maintained or (B) arrange for Collateral Agent to become
the customer of the bank with respect to the deposit account on terms and conditions acceptable to
the Agents. Notwithstanding anything to the contrary contained herein, the terms of this
subsection (d) shall






36









 







not apply to Store Bank Accounts or to deposit accounts specifically and exclusively used for
payroll, taxes, other obligations to third parties or other employee wage and benefit payments to
or for the benefit of Borrower’s salaried employees.




          (e) Borrower does not own or hold, directly or indirectly, beneficially or as record owner or
both, any investment property, as of the date hereof, or have any investment account, securities
account, commodity account or other similar account with any bank or other financial institution or
other securities intermediary or commodity intermediary as of the date hereof, in each case except
as set forth in the Information Certificate.





          (i) In the event that Borrower shall be entitled to or shall at any time after
the date hereof hold or acquire any certificated securities, Borrower shall promptly
endorse, assign and deliver the same to Collateral Agent, for itself and the ratable
benefit of Lenders. accompanied by such instruments of transfer or assignment duly
executed in blank as Collateral Agent may from time to time specify. If any
securities, now or hereafter acquired by Borrower are uncertificated and are issued
to Borrower or its nominee directly by the issuer thereof, Borrower shall
immediately notify the Agents thereof and shall as the Agents may specify, either
(A) cause the issuer to agree to comply with instructions from Collateral Agent as
to such securities, without further consent of Borrower or such nominee, or (B)
arrange for Collateral Agent, for itself and the ratable benefit of Lenders, to
become the registered owner of the securities.




          (ii) Borrower shall not, directly or indirectly, after the date hereof open,
establish or maintain any investment account, securities account, commodity account
or any other similar account (other than a deposit account) with any securities
intermediary or commodity intermediary unless each of the following conditions is
satisfied: (A) the Agents shall have received not less than five (5) Business Days
prior written notice of the intention of Borrower to open or establish such account
which notice shall specify in reasonable detail and specificity acceptable to the
Agents the name of the account, the owner of the account, the name and address of
the securities intermediary or commodity intermediary at which such account is to be
opened or established, the individual at such intermediary with whom Borrower is
dealing and the purpose of the account, (B) the securities intermediary or commodity
intermediary (as the case may be) where such account is opened or maintained shall
be acceptable to the Agents, and (C) to the extent required by Section 5.3(d), on or
before the opening of such investment account, securities account or other similar
account with a securities intermediary or commodity intermediary, Borrower shall as
the Agents may specify either (1) execute and deliver, and cause to be executed and
delivered to Collateral Agent, an Investment Property Control Agreement with respect
thereto duly authorized, executed and delivered by Borrower and such securities
intermediary or commodity intermediary or (2) arrange for Collateral Agent, for
itself and for the ratable benefit of Lenders, to become the entitlement holder with
respect to such investment property on terms and conditions acceptable to the
Agents.



37









 





          (f) Borrower is not the beneficiary or otherwise entitled to any right to payment under any
letter of credit, banker’s acceptance or similar instrument as of the date hereof, except as set
forth in the Information Certificate. In the event that Borrower shall be entitled to or shall
receive any right to payment under any letter of credit, banker’s acceptance or any similar
instrument, whether as beneficiary thereof or otherwise after the date hereof, Borrower shall
promptly notify the Agents thereof in writing. Borrower shall immediately, as the Agents may
specify, either (i) deliver, or cause to be delivered to Collateral Agent, with respect to any such
letter of credit, banker’s acceptance or similar instrument, the written agreement of the issuer
and any other nominated person obligated to make any payment in respect thereof (including any
confirming or negotiating bank), in form and substance satisfactory to the Agents, consenting to
the assignment of the proceeds of the letter of credit to Collateral Agent, for itself and for the
ratable benefit of Lenders, by Borrower and agreeing to make all payments thereon directly to
Collateral Agent, for itself and for the ratable benefit of Lenders, or as Collateral Agent may
otherwise direct or (ii) cause Collateral Agent, for itself and for the ratable benefit of Lenders,
to become, at Borrower’s expense, the transferee beneficiary of the letter of credit, banker’s
acceptance or similar instrument (as the case may be).




          (g) Borrower has no commercial tort claims as of the date hereof, except as set forth in the
Information Certificate. In the event that Borrower shall at any time after the date hereof assert
any commercial tort claims in respect of which the expected net recovery exceeds $250,000, Borrower
shall promptly notify the Agents thereof in writing, which notice shall (i) set forth in reasonable
detail the basis for and nature of such commercial tort claim and (ii) if requested by any Agent,
include the express grant by Borrower to Collateral Agent, for itself and the ratable benefit of
Lenders, of a security interest in such commercial tort claim (and the proceeds thereof). In the
event that such notice does not include such grant of a security interest, the sending thereof by
Borrower to the Agents shall be deemed to constitute such grant to Collateral Agent, for itself and
for the ratable benefit of Lenders. Upon the sending of such notice, any commercial tort claim
described therein shall constitute part of the Collateral and shall be deemed included therein.
Without limiting the authorization of Collateral Agent provided in Section 5.3(a) hereof or
otherwise arising by the execution by Borrower of this Agreement or any of the other Financing
Agreements, Collateral Agent is hereby irrevocably authorized from time to time and at any time to
file such financing statements naming Collateral Agent or its designee as secured party and
Borrower as debtor, or any amendments to any financing statements, covering any such commercial
tort claim as Collateral. In addition, Borrower shall promptly upon the Agents’ request, execute
and deliver, or cause to be executed and delivered, to Collateral Agent such other agreements,
documents and instruments as the Agents may require in connection with such commercial tort claim.




          (h) Borrower does not have any goods, documents of title or other Collateral in the custody,
control or possession of a third party as of the date hereof, except as set forth in the
Information Certificate and except for goods located in the United States in transit to a location
of Borrower permitted herein in the ordinary course of business of Borrower in the possession of
the carrier transporting such goods. In the event that any goods, documents of the title or other
Collateral are at any time after the date hereof in the custody, control or possession of any other
person not referred to in the Information Certificate or such carriers, Borrower shall promptly
notify the Agents thereof in writing. Promptly upon the Agents’ request, Borrower shall deliver






38









 







to Collateral Agent a Collateral Access Agreement duly authorized, executed and delivered by
such person and Borrower.




          (i) Borrower shall take any other actions reasonably requested by the Agents from time to time
to cause the attachment, perfection and first priority of, and the ability of Collateral Agent to
enforce, the security interest of Collateral Agent in any and all of the Collateral located in the
United States, Canada or Puerto Rico, including, without limitation, (i) executing, delivering and,
where appropriate, filing financing statements and amendments relating thereto under the UCC or
other applicable law, to the extent, if any, that Borrower’s signature thereon is required
therefore, (ii) causing Collateral Agent’s name to be noted as secured party on any certificate of
title for a titled good if such notation is a condition to attachment, perfection or priority of,
or ability of Collateral Agent to enforce, the security interest of Collateral Agent in such
Collateral, (iii) complying with any provision of any statute, regulation or treaty of the United
States, Canada or Puerto Rico as to any Collateral if compliance with such provision is a condition
to attachment, perfection or priority of, or ability of Collateral Agent to enforce, the security
interest of Collateral Agent in such Collateral, (iv) obtaining the consents and approvals of any
Governmental Authority or third party, including, without limitation, any consent of any licensor,
lessor or other person obligated on Collateral, and taking all actions required by any earlier
versions of the UCC or by other law, as applicable in any relevant jurisdiction.



SECTION 6. COLLECTION AND ADMINISTRATION




          6.1. Borrower’s Loan Account.




     Administrative Agent shall maintain one or more loan account(s) on its books in which shall be
recorded (a) all Loans, Letter of Credit Accommodations and other Obligations, (b) all payments
made by or on behalf of Borrower and (c) all other appropriate debits and credits as provided in
this Agreement, including fees, charges, costs, expenses and interest. All entries in the loan
account(s) shall be made in accordance with Administrative Agent’s customary practices as in effect
from time to time. The Revolving Loans shall be evidenced by the loan accounts maintained by
Administrative Agent; provided that if any Lender so requests, the Borrower will execute a
promissory note in favor of such Lender further evidencing such Lender’s Commitment.
Administrative Agent is authorized by all the parties hereto to make all revisions and
modifications to Schedule I hereto at any time to reflect the then current Commitments of
each Lender.



          6.2. Statements.




     Administrative Agent shall render to Borrower each month a statement setting forth the balance
in the Borrower’s loan account(s) maintained by Administrative Agent for Borrower pursuant to the
provisions of this Agreement, including principal, interest, fees, costs and expenses. Each such
statement shall be subject to subsequent adjustment by Administrative Agent but shall, absent
manifest errors or omissions, be considered correct and deemed accepted by Borrower and
conclusively binding upon Borrower as an account stated except to the extent that Administrative
Agent receives a written notice from Borrower of any specific exceptions of Borrower thereto within
forty-five (45) days after the date such statement has been mailed by



39









 




Administrative Agent. Until such time as Administrative Agent shall have rendered to Borrower
a written statement as provided above, the balance in Borrower’s loan account(s) shall be
presumptive evidence of the amounts due and owing to Administrative Agent and Lenders by Borrower.




          6.3. Collection of Accounts.




          (a) Borrower shall establish and maintain, at its expense, deposit account arrangements and
merchant payment arrangements with the banks set forth on Schedule 6.3 to the Information
Certificate and after prior written notice to Administrative Agent, and subject to Section 5.3(d),
such other banks as Borrower may hereafter select as are acceptable to Administrative Agent. The
banks set forth on Schedule 6.3 to the Information Certificate constitute all of the banks with
whom Borrower has deposit account arrangements and merchant payment arrangements as of the date
hereof and such Schedule identifies each of the deposit accounts at such banks to a retail store
location of Borrower or otherwise describes the nature of the use of such deposit account by
Borrower.





          (i) Borrower shall deposit all proceeds from sales of Inventory in every form,
including, without limitation, cash, checks, credit card sales drafts, credit card
sales or charge slips or receipts and other forms of store receipts, from each
retail store location of Borrower on each Business Day into the deposit accounts of
Borrower used solely for such purpose and identified to each retail store location
as set forth on Schedule 6.3 to the Information Certificate (together with any other
deposit accounts at any time established or used by Borrower for receiving such
store receipts from any retail store location, collectively, the “Store Bank
Accounts”) or as otherwise provided in Section 6.3(a)(iii) below. Borrower shall
irrevocably authorize and direct, and shall use its best efforts to cause, all
available funds deposited into the Store Bank Accounts to be sent by wire transfer
or by transfer using the automated clearinghouse network (“ACH transfer”) on
a daily basis, and all other proceeds of Collateral to be sent by wire transfer or
by ACH transfer, to the Blocked Account as provided in Section 6.3(a)(ii) below
(except nominal amounts which are required to be maintained in such Store Bank
Accounts under the terms of Borrower’s arrangements with the bank at which such
Store Bank Accounts are maintained, not to exceed $10,000 for each individual store
utilizing such Store Bank Account). Borrower shall irrevocably authorize and direct
in writing, in form and substance satisfactory to Administrative Agent, each of the
banks into which proceeds from sales of Inventory from each retail store location of
Borrower are at any time deposited as provided above and all of the banks in which
Borrower’s concentration accounts are maintained to send all available funds
deposited in such account (other than the nominal amounts referred to above) by wire
transfer or ACH transfer on a daily basis to the Blocked Account. Such authorization
and direction shall not be rescinded, revoked or modified without the prior written
consent of Administrative Agent. In the event any of such banks fails to send such
funds to the Blocked Account as provided herein, Borrower shall pursue all of its
rights and remedies as a result of such failure. Notwithstanding the foregoing, for
those Store Bank Accounts that transfer funds daily by ACH transfer initiated by



40









 







Borrower’s store management notifying a third party processor, Borrower shall
irrevocably authorize and direct in writing, in form and substance satisfactory to
Administrative Agent, the third party processor that establishes the routing and
executes the ACH transfer to send funds only to the Blocked Accounts and to agree to
do so at any time upon Administrative Agent’s request and Administrative Agent shall
receive an agreement from such third party processor confirming its agreement to do
so. Such authorization and direction shall not be rescinded, revoked or modified
without the prior written consent of Administrative Agent.




          (ii) Borrower shall establish and maintain, at its expense, one or more deposit
accounts with such banks as are acceptable to Administrative Agent (the “Blocked
Accounts”) into which Borrower shall promptly either cause all amounts on
deposit in the Store Bank Accounts to be sent as provided in Section 6.3(a)(i) above
or shall itself deposit or cause to be deposited all proceeds from sales of
Inventory, all amounts payable to Borrower from Credit Card Issuers and Credit Card
Processors and all other proceeds of Collateral. To the extent required by Section
5.3(d) hereof, the banks at which the Blocked Accounts are established shall enter
into an agreement, in form and substance satisfactory to Administrative Agent,
providing that all items received or deposited in the Blocked Accounts are the
property of Borrower subject to the lien and security interest of Collateral Agent,
for the benefit of Agents and Lenders, that the depository bank has no lien upon, or
right of setoff against, the Blocked Accounts, the items received for deposit
therein, or the funds from time to time on deposit therein and that upon notice (an
“Activation Notice”) from either Agent at any time that an Event of Default
has occurred and is continuing or that Excess Availability is less than thirty
percent (30%) of the lesser of (1) the amount of the Loans available to Borrower as
of such time based on the formula set forth in Section 2.1(a) hereof, subject to the
sublimits and Availability Reserves from time to time established by Agents
hereunder and (2) the Maximum Credit, the depository bank will wire, or otherwise
transfer, immediately available funds, on a daily basis, all funds received or
deposited into the Blocked Accounts to such bank account of Administrative Agent as
Administrative Agent may from time to time designate for such purpose (“Payment
Account”), which agreements, once entered into, shall remain in effect until
this Agreement is terminated. Borrower agrees that all amounts deposited in such
Blocked Accounts or in the Store Bank Accounts or other funds received and collected
by either Agent, whether as proceeds of inventory or other Collateral or otherwise
shall, to the extent that there are Obligations outstanding and an Activation Notice
has been delivered, be the property of Collateral Agent, for the benefit of Agents
and Lenders. Prior to the occurrence of an Event of Default, amounts in the Payment
Account in excess of the Loan balance (including any required cash collateralization
of Letter of Credit Accommodations) and other Obligations that are then due and not
paid by the Borrower shall be promptly returned to a disbursement account designated
by the Borrower. An Activation Notice, once furnished, shall remain in effect (i)
so long as such Event of Default has not been cured or waived, and/or (ii) if the
Activation Notice was furnished as



41









 







a result of the Borrowers’ failure to achieve Excess Availability as required
above, until Excess Availability has exceeded thirty percent (30%) of the lesser of
(1) the amount of the Loans available to Borrower as of such time based on the
formula set forth in Section 2.1(a) hereof, subject to the sublimits and
Availability Reserves from time to time established by Agents hereunder and (2) the
Maximum Credit for sixty (60) consecutive days, in which case the Agents will
rescind the Activation Notice; provided that no such rescission shall be required to
be furnished (even if an Event of Default is no longer continuing and/or Excess
Availability exceeds the required amount for sixty (60) consecutive days) after an
Activation Notice has been rescinded once in any twelve consecutive months.
At any time that the Agents rescind the Activation Notice as provided above,
the Blocked Accounts shall remain in effect and such termination shall in no way
limit, waive or delay the obligation of the Borrower, or the right of the Agents, to
again require all funds be transferred to the Payment Account upon the Borrower’s
failure to achieve Excess Availability in the amounts required herein.




          (iii) To the extent Borrower may elect, at Borrower’s option, to use the
Armored Car Companies to pick up and collect cash or other proceeds of sales of
Inventory from a retail store location, Borrower shall deliver to the Armored Car
Companies all proceeds from sales of Inventory and other Collateral from such retail
store location of Borrower. Borrower shall irrevocably authorize and direct the
Armored Car Companies in writing, consistent with past practices described to
Administrative Agent, to remit all such proceeds at any time received by the Armored
Car Companies only to the deposit account identified on Schedule 6.3 to the
Information Certificate or other Store Bank Accounts for such purpose and thereafter
to the Blocked Accounts. Such authorization and direction to the Armored Car
Companies shall not be rescinded, revoked or modified without the prior written
consent of Administrative Agent unless Borrower shall cease to do business with such
Armored Car Company, provided that upon any such termination the Armored Car Company
shall not be released from its obligation to make payments for amounts previously
delivered to such Armored Car Company. As of the date hereof, the only Armored Car
Companies used by Borrower are those identified in Schedule 6.3 to the Information
Certificate. Borrower shall not use any other Armored Car Companies for any purpose
unless the aforesaid arrangements are in place with such other Armored Car Company.
Upon request of the Administrative Agent, Borrower will promptly either obtain and
provide an agreement in writing from such other Armored Car Companies, in form and
substance satisfactory to Administrative Agent, duly authorized, executed and
delivered by such other Armored Car Company, or cease doing business with such
Armored Car Company.



          (b) For purposes of calculating interest on the Obligations and the amount of Loans available
to Borrower, payments or other funds received in the Payment Account shall be applied to the
Obligations (conditional upon final collection) promptly and in accordance with its customary
depository practice as such amounts become available.







42









 








          (c) Borrower and all of its subsidiaries, shareholders, directors, employees, agents or other
Affiliates shall, acting as trustee for Collateral Agent, receive, as the property of Borrower
subject to the lien and security interest of Collateral Agent, for the benefit of Agents and
Lenders, any cash, checks, credit card sales drafts, credit card sales or charge slips or receipts,
notes, drafts and all forms of store receipts or any other payment relating to and/or proceeds of
Accounts or other Collateral which come into their possession or under their control and
immediately upon receipt thereof, shall deposit or cause the same to be deposited in the Store Bank
Accounts (subject to the provisions of Section 6.3(a)(i)) or the Blocked Accounts, or remit the
same or cause the same to be remitted, in kind, to Administrative Agent. Borrower agrees to
reimburse Administrative Agent on demand for any amounts owed or paid to any bank at which a
Blocked Account is established or any other bank or person involved in the transfer of funds to or
from the Blocked Accounts arising out of Administrative Agent’s payments to or indemnification of
such bank or person. The obligation of Borrower to reimburse Administrative Agent for such amounts
pursuant to this Section 6.3 shall survive the termination of this Agreement.




          6.4. Payments.




          (a) All Obligations shall be payable to the Payment Account as provided in Section 6.3 or such
other place as Administrative Agent may designate from time to time. The Agents shall apply
payments received or collected from Borrower or for the account of Borrower (including the monetary
proceeds of collections or of realization upon any Collateral) as follows: first, to pay
any fees, indemnities or expense reimbursements then due to any Agent, any Lender or their
representatives from Borrower (other than in connection with any Hedging Agreements, Bank Products
or Cash Management Services); second, to pay interest due in respect of any Loans and
Special Agent Advances; third, to pay principal due in respect of the Swing Line Loans and
Special Agent Advances; fourth, to pay principal due in respect of the Revolving Loans;
fifth, to pay any other Obligations (other than in connection with any Hedging Agreements,
Bank Products or Cash Management Services) then due and owing, in such order and manner as
Administrative Agent determines; sixth, to pay any Obligations then due and owing relating
to Cash Management Services (including fees, indemnities, expenses and other amounts arising from
any Cash Management Services), seventh, to pay any Obligations then due and owing relating
to Hedging Agreements and Bank Products (including fees, indemnities, expenses and other amounts
arising from any Hedging Agreements or Bank Products) on a pro rata basis and eighth, to
the extent of any balance remaining, such balance shall be delivered to Borrower or as a court of
competent jurisdiction may direct. Notwithstanding anything to the contrary contained in this
Agreement, (i) unless so directed by Borrower, or unless a Default or an Event of Default shall
exist or have occurred and be continuing, no Agent shall apply any payments which it receives to
any LIBO Rate Loans, except on the expiration date of the Interest Period applicable to any such
LIBO Rate Loans and (ii) to the extent Borrower uses any proceeds of the Loans or Letter of Credit
Accommodations to acquire rights in or the use of any Collateral or to repay any Indebtedness used
to acquire rights in or the use of any Collateral, payments in respect of the obligations shall be
deemed applied first to the Obligations arising from Loans and Letter of Credit Accommodations that
were not used for such purposes and second to the Obligations arising from Loans and Letter of
Credit Accommodations the proceeds of which were used to acquire rights in or the use of any
Collateral in the chronological order in which Borrower acquired such rights or use. Each payment
on any of the Loans to or for the





43












 





account of one or more Lenders entitled to such payments pursuant to this Section 6.4(a) shall
be allocated among such Lenders based on their respective Pro Rata Shares of such Loans.



          (b) At Administrative Agent’s option, all principal, interest, fees, costs, expenses and other
charges provided for in this Agreement or the other Financing Agreements may be charged directly to
the loan account(s) of Borrower. Borrower shall make all payments to Agents and Lenders on the
Obligations free and clear of, and without deduction or withholding for or on account of, any
setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions, withholding,
restrictions or conditions of any kind. If after receipt of any payment of, or proceeds of
Collateral applied to the payment of, any of the Obligations, any Agent or any Lender is required
to surrender or return such payment or proceeds to any Person for any reason, then the Obligations
intended to be satisfied by such payment or proceeds shall be reinstated and continue and this
Agreement shall continue in full force and effect as if such payment or proceeds had not been
received by such Agent or such Lender. Borrower shall be liable to pay to each Agent, and does
hereby indemnify and hold Agents and Lenders harmless for the amount of any payments or proceeds
surrendered or returned. This Section 6.4 shall remain effective notwithstanding any contrary
action which may be taken by any Agent or any Lender in reliance upon such payment or proceeds.
This Section 6.4 shall survive the payment of the Obligations and the termination of this
Agreement.


          (c) If any payment of principal or interest with respect to any of the Loans, or of any fees,
falls due on a day which is not a Business Day, then such due date shall be extended to the
immediately following Business Day (unless, in the case of a LIBO Rate Loan, such immediately
following Business Day is the first Business Day of a calendar month, in which case such due date
shall be the immediately preceding Business Day) and, in the case of principal, additional interest
shall accrue and be payable for the period of any such extension.


          6.5. Authorization to Make Loans.



     Agents and Lenders are authorized to make the Loans upon the receipt by Administrative Agent
of a written notice (each such written notice, a “Notice of Borrowing”) substantially in
the form attached hereto as Exhibit F or telephonic notice (followed immediately by a
Notice of Borrowing) of each proposed borrowing not later than (a) in the case of a Prime Rate
borrowing, 12:00 noon on the proposed date of such borrowing, and (b) in the case of a LIBO Rate
borrowing, 12:00 noon at least three (3) Business Days prior to the proposed date of such
borrowing. Each such notice shall be effective upon receipt by the Administrative Agent, shall be
irrevocable, and shall specify the date, amount and type of borrowing and, in the case of a LIBO
Rate borrowing, the initial Interest Period therefore. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Not later than 3:00 P.M. on the date of a
proposed borrowing, each Lender shall provide the Administrative Agent at the office specified by
the Administrative Agent with immediately available funds covering such Lender’s Pro Rata Share of
such borrowing and, so long as the Administrative Agent has not received written notice that the
conditions precedent set forth in Section 4 with respect to such borrowing have not been
satisfied, the Administrative Agent shall pay over the funds received by the Administrative Agent
to Borrower on the requested borrowing date. Each borrowing shall be on a Business Day. Each LIBO
Rate borrowing shall be in an aggregate amount of at least $2,000,000 and an integral multiple of
at least $100,000. All Loans and Letter of Credit



44









 





Accommodations under this Agreement shall be conclusively presumed to have been made to, and
at the request of and for the benefit of, Borrower when deposited to the credit of Borrower or
otherwise disbursed or established in accordance with the instructions of Borrower or in accordance
with the terms and conditions of this Agreement.



          6.6. Use of Proceeds.



     All Loans made or Letter of Credit Accommodations provided to Borrower pursuant to the
provisions hereof shall be used by Borrower only to refinance the Indebtedness under the Prior Loan
Agreements, for general operating, working capital and other proper corporate purposes of Borrower
not otherwise prohibited by the terms hereof, including without limitation the payment of all
costs, expenses and fees in connection with the preparation, negotiation, execution and delivery of
this Agreement and the other Financing Agreements. None of the proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security or for the purposes of
reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Loans to be considered a “purpose
credit” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System,
as amended.


          6.7. Pro Rata Treatment.



     Except to the extent otherwise provided in this Agreement: (a) the making and conversion of
Loans shall be made among the Lenders based on their respective Pro Rata Shares as to the Loans and
(b) each payment on account of any Obligations to or for the account of one or more of Lenders in
respect of any Obligations due on a particular day shall be allocated among the Lenders entitled to
such payments based on their respective Pro Rata Shares and shall be distributed accordingly.


          6.8. Sharing of Payments, Etc.


          (a) Borrower agrees that, in addition to (and without limitation of) any right of setoff,
banker’s lien or counterclaim either Agent or any Lender may otherwise have, each Lender shall be
entitled, at its option (but subject, as among Agents and Lenders, to the provisions of Section
12.3(b) hereof), to offset balances held by it for the account of Borrower at any of its offices,
in dollars or in any other currency, against any principal of or interest on any Loans owed to such
Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless
of whether such balances are then due to Borrower), in which case it shall promptly notify Borrower
and Administrative Agent thereof; provided, that, such Lender’s failure to give
such notice shall not affect the validity thereof.


          (b) If any Lender (including either Agent) shall obtain from Borrower or any Obligor payment
of any principal of or interest on any Loan owing to it or payment of any other amount under this
Agreement or any of the other Financing Agreements through the exercise of any right of setoff,
banker’s lien or counterclaim or similar right or otherwise (other than from Administrative Agent
as provided herein), and, as a result of such payment, such Lender shall have received more than
its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then
due hereunder or thereunder by Borrower or any Obligor to such Lender



45









 








than the percentage thereof received by any other Lender, it shall promptly pay to
Administrative Agent, for the benefit of the applicable Lenders, the amount of such excess and
simultaneously purchase from such other applicable Lenders a participation in the Loans or such
other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case
may be) in such amounts, and make such other adjustments from time to time as shall be equitable,
to the end that all Lenders of the same category of Loans shall share the benefit of such excess
payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such
excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by the
applicable Lenders. To such end all applicable Lenders shall make appropriate adjustments among
themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must
otherwise be restored.



          (c) Borrower agrees that any Lender purchasing a participation (or direct interest) as
provided in this Section may exercise, in a manner consistent with this Section, all rights of
setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such
Lender in the amount of such participation.


          (d) Nothing contained herein shall require any Lender to exercise any right of setoff,
banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise,
and retain the benefits of exercising, any such right with respect to any other Indebtedness or
obligation of Borrower or any Obligor. If, under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies,
such Lender shall, to the extent practicable, assign such rights to Administrative Agent for the
benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a
manner consistent with the rights of Lenders entitled under this Section to share in the benefits
of any recovery on such secured claim.


          6.9. Settlement Procedures.


          (a) The amount of each Lender’s Pro Rata Share of outstanding Revolving Loans shall be
computed weekly (or more frequently in the Administrative Agent’s discretion) and shall be adjusted
upward or downward based on all Revolving Loans and repayments of Revolving Loans received by the
Administrative Agent as of 3:00 p.m. on the first Business Day (such date, the “Settlement
Date”) following the end of the period specified by the Administrative Agent.


          (b) The Administrative Agent shall deliver to each of the Lenders promptly after a Settlement
Date a summary statement of the amount of outstanding Revolving Loans for the period and the amount
of repayments received for the period. As reflected on the summary statement, (i) the
Administrative Agent shall transfer to each Lender its Pro Rata Share of repayments, and (ii) each
Lender shall transfer to the Administrative Agent (as provided below) or the Administrative Agent
shall transfer to each Lender, such amounts as are necessary to insure that, after giving effect to
all such transfers, the amount of Revolving Loans made by each Lender shall be equal to such
Lender’s Pro Rata Share of all Revolving Loans outstanding as of such Settlement Date. If the
summary statement requires transfers to be made to the Administrative Agent by the Lenders and is
received prior to 11:00 a.m. on a Business Day, such



46









 








transfers shall be made in immediately available funds no later than 3:00 p.m. that day; and,
if received after 11:00 a.m., then no later than 3:00 p.m. on the next Business Day. The obligation
of each Lender to transfer such funds is irrevocable, unconditional and without recourse to or
warranty by the Administrative Agent. If and to the extent any Lender shall not have so made its
transfer to the Administrative Agent, such Lender agrees to pay to the Administrative Agent,
forthwith on demand such amount, together with interest thereon, for each day from such date until
the date such amount is paid to the Administrative Agent, equal to the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation plus any administrative, processing, or similar fees customarily charged by
the Administrative Agent in connection with the foregoing.



          (c) All payments under Section 3.3 shall be made by Borrower directly to the Lender entitled
thereto without setoff, counterclaim or other defense.



SECTION 7. COLLATERAL REPORTING AND COLLATERAL COVENANTS



          7.1. Collateral Reporting.



     Borrower shall provide the Agents with the following documents in a form satisfactory to the
Agents (a) on a monthly basis or more frequently as either Agent may reasonably request (i) a
Borrowing Base Certificate in the form of Exhibit I hereto (or such other form as the
Administrative Agent may require), (ii) inventory reports by category and location (with such
details as to the mix of Inventory as either Agent may request), and (iii) agings of accounts
payable; (b) upon reasonable request of either Agent (i) the stock status reports of Borrower, (ii)
reports on sales and use tax payment and including monthly sales and use tax accruals, (iii)
reports of amounts of consigned Inventory held by Borrower by category and consignor, (iv) reports
of sales of Inventory indicating net sales, (v) reports of aggregate Inventory purchases (including
all costs related thereto, such as freight, duty and taxes) and identifying items of Inventory in
transit to Borrower related to the applicable documentary letter of credit and/or bill of lading
number, (vi) reports of the Cost of the Inventory (net of markdowns), (vii) reports on the status
of all payments to owners and lessors of the leased retail store locations of Borrower and other
leased premises of Borrower, (viii) copies of customer statements and credit memos, remittance
advices and reports, and copies of deposit slips and bank statements, (ix) copies of shipping and
delivery documents, (x) copies of purchase orders, invoices and delivery documents for Inventory
and Equipment acquired by Borrower, (xi) reports by retail store location of sales and operating
profits for each such retail store location (xii) reports of sales for each category of Inventory
and (xiii) the monthly statements received by Borrower from any Credit Card Issuers or Credit Card
Processors, together with such additional information with respect thereto as shall be sufficient
to enable the Agents to monitor the transactions pursuant to the Credit Card Agreements; and (c)
such other reports as to the Collateral as the Agents shall reasonably request from time to time.
If any of Borrower’s records or reports of the Collateral are prepared or maintained by an
accounting service, contractor, shipper or other agent, Borrower hereby irrevocably authorizes such
service, contractor, shipper or agent to deliver such records, reports, and related documents to
the Agents and to follow the instructions of the Agents with respect to further services at any
time that an Event of Default exists or has occurred and is continuing.


          7.2. Accounts Covenants.



47









 







          (a) Borrower shall notify Administrative Agent promptly of the assertion of any material
claims, offsets, defenses or counterclaims by any account debtor, Credit Card Issuer or Credit Card
Processor or any material disputes with any of such persons or any settlement, adjustment or
compromise thereof and (ii) all material adverse information relating to the financial condition of
any account debtor, Credit Card Issuer or Credit Card Processor. No material credit, discount,
allowance or extension or agreement for any of the foregoing shall be granted to any account
debtor, Credit Card Issuer or Credit Card Processor except in the ordinary course of Borrower’s
business in accordance with the current practices of Borrower as in effect on the date hereof. So
long as no Event of Default exists or has occurred and is continuing, Borrower shall settle, adjust
or compromise any claim offset, counterclaim or dispute with any account debtor, Credit Card
Issuer, Credit Card Processor. At any time that an Event of Default exists or has occurred and is
continuing, Administrative Agent shall, at its option, have the exclusive right to settle, adjust
or compromise any claim, offset, counterclaim or dispute with account debtors, Credit Card Issuers
or Credit Card Processors or grant any credits, discounts or allowances.


          (b) Borrower shall notify Administrative Agent promptly of (i) any notice of a material
default by Borrower under any of the Credit Card Agreements or of any default which might result in
the Credit Card Issuer or Credit Card Processor ceasing to make payments or suspending payments to
Borrower, (ii) any notice from any Credit Card Issuer or Credit Card Processor that such person is
ceasing or suspending, or will cease or suspend, any present or future payments due or to become
due to Borrower from such person, or that such person is terminating or will terminate any of the
Credit Card Agreements, and (iii) the failure of Borrower to comply with any material terms of the
Credit Card Agreements or any terms thereof which might result in the Credit Card Issuer or Credit
Card Processor ceasing or suspending payments to Borrower.


          (c) With respect to each Account: (i) the amounts shown on any invoice delivered to either
Agent or schedule thereof delivered to either Agent shall be true and complete, (ii) no payments
shall be made thereon except payments immediately delivered to Administrative Agent pursuant to the
terms of this Agreement, (iii) no credit, discount, allowance or extension or agreement for any of
the foregoing shall be granted to any account debtor except as reported, to the extent required
hereunder, to Administrative Agent in accordance with this Agreement and except for credits,
discounts, allowances or extensions made or given in the ordinary course of Borrower’s business in
accordance with practices and policies previously disclosed to Administrative Agent, (iv) there
shall be no setoffs, deductions, contras, defenses, counterclaims or disputes existing or asserted
with respect thereto except as reported to Administrative Agent in accordance with the terms of
this Agreement, (v) none of the transactions giving rise thereto will violate any applicable
foreign, Federal, State or local laws or regulations, all documentation relating thereto will be
legally sufficient under such laws and regulations and all such documentation will be legally
enforceable in accordance with its terms.


          (d) The Agents may, at any time or times that an Event of Default exists or has occurred, (i)
notify any or all account debtors, Credit Card Issuers and Credit Card Processors that the Accounts
have been assigned to Collateral Agent and that Collateral Agent has a security interest therein
and Collateral Agent may direct any or all account debtors, Credit Card Issuers and Credit Card
Processors to make payments of Accounts directly to Collateral Agent, (ii)



48









 








extend the time of payment of, compromise, settle or adjust for cash, credit, return of or
otherwise, and upon any terms or conditions, any and all Accounts or other obligations included in
the Collateral and thereby discharge or release the account debtor or any other party or parties in
any way liable for payment thereof without affecting any of the Obligations, (iii) demand, collect
or enforce payment of any Accounts or such other obligations, but without any duty to do so, and
Collateral Agent shall not be liable for its failure to collect or enforce the payment thereof nor
for the negligence of its agents or attorneys with respect thereto and (iv) take whatever other
action Collateral Agent may deem necessary or desirable for the protection of its interests. At
any time that an Event of Default exists or has occurred and is continuing, at either Agent’s
request, all invoices and statements sent to any account debtor, Credit Card Issuer or Credit Card
Processor shall state that the Accounts due from such account debtor, Credit Card Issuer or Credit
Card Processor and such other obligations have been assigned to Collateral Agent and are payable
directly and only to Collateral Agent and Borrower shall deliver to Collateral Agent such originals
of documents evidencing the sale and delivery of goods or the performance of services giving rise
to any Accounts as Collateral Agent may require.



          (e) Collateral Agent shall have the right at any time or times, in Collateral Agent’s name or
in the name of a nominee of Collateral Agent, to verify the validity, amount or any other matter
relating to any Account or other Collateral, by mail, telephone, facsimile transmission or
otherwise.


          (f) Borrower shall deliver or cause to be delivered to Collateral Agent, with appropriate
endorsement and assignment, with full recourse to Borrower, all chattel paper and instruments which
Borrower now owns or may at any time acquire immediately upon Borrower’s receipt thereof, except as
Collateral Agent may otherwise agree.


          7.3. Inventory Covenants.



     With respect to the Inventory: (a) Borrower shall at all times maintain inventory records
reasonably satisfactory to Collateral Agent, keeping correct and accurate records itemizing and
describing the kind, type, quality and quantity of Inventory, Borrower’s cost therefor and daily
withdrawals therefrom and additions thereto; (b) Borrower shall conduct a physical count of the
Inventory either through periodic cycle counts or wall-to-wall counts so that all Inventory is
covered by such counts at least once each year, but at any time or times as any Agent may request
on or after an Event of Default, and promptly following such physical inventory (whether pursuant
to periodic cycle counts or otherwise) shall, to the extent requested, supply Collateral Agent with
a report in the form and with such specificity as may be reasonably satisfactory to Collateral
Agent concerning such physical count; (c) Borrower shall not remove any Inventory from the
locations set forth or permitted herein, without the prior written consent of Collateral Agent,
except for sales of Inventory in the ordinary course of Borrower’s business and except to move
Inventory directly from one location set forth or permitted herein to another such location or to
return defective, returned or slow moving Inventory to the relevant distribution center or directly
to the supplier for appropriate credit; (d) Borrower shall make all material payments required to
be made under leases of premises at which Inventory is located when due, except as specifically
reported to Collateral Agent pursuant to Section 7.1 above; (e) upon Collateral Agent’s request,
Borrower shall, at its expense, no more than once in any twelve (12) month period, but at any time
or times as Collateral Agent may reasonably request on or after an Event



49









 





of Default, deliver or cause to be delivered to Collateral Agent written appraisals as to the
Inventory in form, scope and methodology acceptable to Collateral Agent and by an appraiser
acceptable to Collateral Agent, addressed to Collateral Agent and upon which Collateral Agent is
expressly permitted to rely; (f) upon Collateral Agent’s request, Borrower shall, at its expense,
conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable
to Collateral Agent, a physical count of the Inventory in form, scope and methodology acceptable to
Collateral Agent no more than once in any twelve (12) month period, but at any time or times as
Collateral Agent may request on or after an Event of Default, the results of which shall be
reported directly by such inventory counting service to Collateral Agent and Borrower shall
promptly deliver confirmation in a form satisfactory to Collateral Agent that appropriate
adjustments have been made to the inventory records of Borrower to reconcile the inventory count to
Borrower’s inventory records; (g) Borrower shall produce, use, store and maintain the Inventory
with all reasonable care and caution and in accordance with applicable standards of any insurance
and in conformity with applicable laws (including the requirements of the Federal Fair Labor
Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (h)
Borrower assumes (as between Lender and Borrower) all responsibility and liability arising from or
relating to the production, use, sale or other disposition of the Inventory; (i) Borrower shall not
sell Inventory to any customer on approval, or any other basis which entitles the customer to
return or may obligate Borrower to repurchase such Inventory except for the right of return given
to retail customers of Borrower in the ordinary course of the business of Borrower in accordance
with the then current return policy of Borrower; (j) Borrower shall use its best efforts to keep
the Inventory in good and marketable condition and to identify and make appropriate adjustments for
Inventory that does not meet that requirement except that which is to be returned; and (k) Borrower
shall not acquire or accept any Inventory on consignment or approval except to the extent such
Inventory is reported to Collateral Agent in accordance with the terms hereof.



          7.4. Power of Attorney.



     Borrower hereby irrevocably designates and appoints each Agent (and all persons designated by
either Agent) as Borrower’s true and lawful attorney-in-fact, and authorizes Collateral Agent, in
Borrower’s or Collateral Agent’s name, to: (a) at any time an Event of Default exists or has
occurred and is continuing (i) demand payment on Receivables or other Collateral, (ii) enforce
payment of Receivables by legal proceedings or otherwise, (iii) exercise all of Borrower’s rights
and remedies to collect any Receivable or other Collateral, (iv) sell or assign any Receivable upon
such terms, for such amount and at such time or times as the Collateral Agent deems advisable, (v)
settle, adjust, compromise, extend or renew an Account, (vi) discharge and release any Receivable,
(vii) prepare, file and sign Borrower’s name on any proof of claim in bankruptcy or other similar
document against an account debtor or other obligor in respect of any Receivables or other
Collateral, (viii) notify the post office authorities to change the address for delivery of
remittances from account debtors or other obligors in respect of Receivables or other proceeds of
Collateral to an address designated by Collateral Agent, and open and dispose of all mail addressed
to Borrower and handle and store all mail relating to the Collateral; and (ix) do all acts and
things which are necessary, in Collateral Agent’s determination, to fulfill Borrower’s obligations
under this Agreement and the other Financing Agreements and (b) at any time to (i) take control in
any manner of any item of payment in respect of Receivables or constituting Collateral or otherwise
received in or for



50









 





deposit in the Blocked Accounts or otherwise received by either Agent or any Lender, (ii) have
access to any lockbox or postal box into which remittances from account debtors or other obligors
in respect of Receivables or other proceeds of Collateral are sent or received, (iii) endorse
Borrower’s name upon any items of payment in respect of Receivables or constituting Collateral or
otherwise received by either Agent or any Lender and deposit the same in Administrative Agent’s
account for application to the Obligations, (iv) endorse Borrower’s name upon any chattel paper,
document, instrument, invoice, or similar document or agreement relating to any Receivable or any
goods pertaining thereto or any other Collateral, including any warehouse or other receipts, or
bills of lading and other negotiable or non-negotiable documents, (v) clear Inventory the purchase
of which was financed with Letter of Credit Accommodations through U.S. Customs or foreign export
control authorities in Borrower’s name, Collateral Agent’s name or the name of Collateral Agent’s
designee, and to sign and deliver to customs officials powers of attorney in Borrower’s name for
such purpose, and to complete in Borrower’s or Collateral Agent’s name, any order, sale or
transaction, obtain the necessary documents in connection therewith and collect the proceeds
thereof, (vi) sign Borrower’s name on any verification of Receivables and notices thereof to
account debtors or any secondary obligors or other obligors in respect thereof. Borrower hereby
releases each Agent and Lenders and their respective officers, employees and designees from any
liabilities arising from any act or acts under this power of attorney and in furtherance thereof,
whether of omission or commission, except as a result of such Agent’s or any Lender’s own gross
negligence or willful misconduct as determined pursuant to a final non-appealable order of a court
of competent jurisdiction.



          7.5. Right to Cure.



     Administrative Agent may, at its option upon notice to Borrower (a) cure any default by
Borrower under any material agreement with a third party that affects the Collateral, its value or
the ability of Administrative Agent to collect, sell or otherwise dispose of the Collateral or the
rights and remedies of Administrative Agent therein or the ability of Borrower to perform its
obligations hereunder or under the other Financing Agreements, (b) pay or bond on appeal any
judgment entered against Borrower, (c) discharge taxes, liens, security interests or other
encumbrances at any time levied on or existing with respect to the Collateral and (d) pay any
amount, incur any expense or perform any act which, in Administrative Agent’s judgment, is
necessary or appropriate to preserve, protect, insure or maintain the Collateral and the rights of
Agents and Lenders with respect thereto. Administrative Agent may add any amounts so expended to
the Obligations and charge Borrower’s account therefor, such amounts to be repayable by Borrower on
demand. Agents and Lenders shall be under no obligation to effect such cure, payment or bonding
and shall not, by doing so, be deemed to have assumed any obligation or liability of Borrower. Any
payment made or other action taken by either Agent or any Lender under this Section shall be
without prejudice to any right to assert an Event of Default hereunder and to proceed accordingly.


          7.6. Access to Premises.



     From time to time as reasonably requested by any Agent, at the cost and expense of Borrower,
(a) each Agent or its designee shall have complete access to all of Borrower’s premises during
normal business hours and after notice to Borrower, or at any time and without notice to Borrower
if an Event of Default exists or has occurred and is continuing, for the



51









 





purposes of conducting field examinations (which Collateral Agent may conduct not more than
twice per year or at such greater frequency as Administrative Agent shall elect during the
existence of a Default or Event of Default, provided, however, that as long as no
Default or Event of Default has occurred and is continuing, Borrower shall not be obligated to
reimburse or pay for more than $15,000 per annum (including out-of-pocket expenses) for such field
examinations), inspecting, verifying and auditing the Collateral and all of Borrower’s books and
records, including the Records, provided that the Administrative Agent may cause such
additional examinations to be undertaken as it deems appropriate at the Lenders’ expense, and (b)
Borrower shall promptly furnish to each Agent such copies of such books and records or extracts
therefrom as any Agent may reasonably request, and (c) any Agent or any Agent’s designee may use
during normal business hours such of Borrower’s personnel, equipment, supplies and premises as may
be reasonably necessary for the foregoing and if an Event of Default exists or has occurred and is
continuing for the collection of Receivables and realization of other Collateral.




SECTION 8. REPRESENTATIONS AND WARRANTIES




     Borrower hereby represents and warrants to Agents and Lenders the following (which shall
survive the execution and delivery of this Agreement), the truth and accuracy of which are a
continuing condition of the making of Loans and providing Letter of Credit Accommodations to
Borrower:


          8.1. Corporate Existence; Power and Authority.



     Borrower is a corporation duly organized and in good standing under the laws of its state of
incorporation and is duly qualified as a foreign corporation and in good standing in all states or
other jurisdictions where the nature and extent of the business transacted by it or the ownership
of assets makes such qualification necessary, and in which the failure to so qualify would have a
Material Adverse Effect. The execution, delivery and performance of this Agreement, the other
Financing Agreements and the transactions contemplated hereunder and thereunder (a) are all within
Borrower’s corporate powers, (b) have been duly authorized and (c) are not in contravention of law
or the terms of Borrower’s certificate of incorporation, by-laws, or other organizational
documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which
Borrower or its property are bound. This Agreement and the other Financing Agreements constitute
legal, valid and binding obligations of Borrower enforceable in accordance with their respective
terms. Borrower does not have any Subsidiaries except as set forth on the Information Certificate.


          8.2. Name; State of Organization; Chief Executive Office; Collateral Locations.


          (a) The exact legal name of Borrower is as set forth on the signature page of this Agreement
and in the Information Certificate. Borrower has not, during the past five years, been known by or
used any other corporate or fictitious name or been a party to any merger or consolidation, or
acquired all or substantially all of the assets of any Person, or acquired any of its property or
assets out of the ordinary course of business, except as set forth in the Information Certificate.



52









 







          (b) Borrower is an organization of the type and organized in the jurisdiction set forth in the
Information Certificate. The Information Certificate accurately sets forth the organizational
identification number of Borrower or accurately states that Borrower has none and accurately sets
forth the federal employer identification number of Borrower.


          (c) The chief executive office and mailing address of Borrower and Borrower’s Records
concerning Accounts are located only at the address identified as such in Schedule 8.2 to the
Information Certificate and its only other places of business and the only other locations of
Collateral, if any, are the addresses set forth in Schedule 8.2 to the Information Certificate,
subject to the right of Borrower to establish new locations in accordance with Section 9.2 below.
The Information Certificate correctly identifies any of such locations which are not owned by
Borrower and sets forth the owners and/or operators thereof.


          8.3. Financial Statements; No Material Adverse Change.



     All financial statements relating to Borrower which have been or may hereafter be delivered by
Borrower to Agents and Lenders have been prepared in accordance with GAAP (except as to any interim
financial statements, to the extent such statements are subject to normal year-end adjustments and
do not include any notes) and fairly present the financial condition and the results of operation
of Borrower as at the dates and for the periods set forth therein. Except as disclosed in any
interim financial statements furnished by Borrower to Administrative Agent prior to the date of
this Agreement, there has been no material adverse change in the assets, liabilities, properties
and condition, financial or otherwise, of Borrower, since the date of the most recent audited
financial statements furnished by Borrower to Administrative Agent prior to the date of this
Agreement.


          8.4. Priority of Liens; Title to Properties.



     The security interests and liens granted to Collateral Agent under this Agreement and the
other Financing Agreements constitute valid and perfected first priority liens and security
interests in and upon the Collateral which is located within the United States of America, Canada
or Puerto Rico subject only to the liens indicated on Schedule 8.4 to the Information Certificate
and the other liens permitted under Section 9.8 hereof. Borrower has good and marketable fee
simple title to all of its other properties and assets subject to no liens, mortgages, pledges,
security interests, encumbrances or charges of any kind, except those granted to Collateral Agent
and such others as are specifically listed on Schedule 8.4 to the Information Certificate or
permitted under Section 9.8 hereof.


          8.5. Tax Returns.



     Borrower has filed, or caused to be filed, in a timely manner all (i) federal and state tax
returns, reports and declarations which are required to be filed by Borrower and (ii) all other tax
returns, reports and declarations which are required to be filed by Borrower, other than such tax
returns, reports and declarations the failure of which to file could not reasonably be expected to
have a Material Adverse Effect. All information in such tax returns, reports and declarations is
complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes
due and payable or claimed due and payable in any assessment received by it and has collected,



53









 





deposited and remitted in accordance with all applicable laws all sales and/or use taxes
applicable to the conduct of its business, except taxes the validity of which are being contested
in good faith by appropriate proceedings diligently pursued and available to Borrower and with
respect to which adequate reserves have been set aside on its books and except for any taxes of
less than $500,000 in the aggregate. Adequate provision has been made for the payment of all
accrued and unpaid Federal, State, county, local, foreign and other taxes whether or not yet due
and payable and whether or not disputed. Borrower has collected and deposited in a separate bank
account or remitted to the appropriate tax authority all sales and/or use taxes applicable to its
business required to be collected and so deposited under the laws of the United States and each
possession or territory thereof, and each State or political subdivision thereof, including any
State in which Borrower owns any Inventory or owns or leases any other property.



          8.6. Litigation.



     Except as set forth in Schedule 8.6 to the Information Certificate, there is no present
investigation by any Governmental Authority pending, or to the best of Borrower’s knowledge
threatened, against or affecting Borrower, its assets or business and there is no action, suit,
proceeding or claim by any Person pending, or to the best of Borrower’s knowledge threatened,
against Borrower or its assets or goodwill, or against or affecting any transactions contemplated
by this Agreement, which if adversely determined against Borrower could reasonably be expected to
have a Material Adverse Effect.


          8.7. Compliance with Other Agreements and Applicable Laws.


          (a) Borrower is not in default in any respect under, or in violation in any respect of any of
the terms of, any agreement, contract, instrument, lease or other commitment to which it is a party
or by which it or any of its assets are bound, in each case where such default or violation has or
would have a Material Adverse Effect. Borrower is in compliance in all respects with the
requirements of all applicable laws, rules, regulations and orders of any governmental authority
relating to its business, including, without limitation, those set forth in or promulgated pursuant
to the Occupational Safety and Health Act of 1970, as amended, the Fair Labor Standards Act of
1938, as amended, ERISA, the Code, as amended, and the rules and regulations thereunder, the
Environmental Laws, all Federal, State and local statutes, regulations, rules and orders relating
to consumer credit (including, without limitation, as each has been amended, the Truth-in-Lending
Act, the Fair Credit Billing Act, the Equal Credit Opportunity Act and the Fair Credit Reporting
Act, and regulations, rules and orders promulgated thereunder), all Federal, State and local
states, regulations, rules and orders pertaining to sales of consumer goods (including, without
limitation, the Consumer Products Safety Act of 1972, as amended, and the Federal Trade Commission
Act of 1914, as amended, and all regulations, rules and orders promulgated thereunder) in each case
where the failure to comply would have a Material Adverse Effect.


          (b) Borrower has obtained all material permits, licenses, approvals, consents, certificates,
orders or authorizations of any governmental agency required for the lawful conduct of its business
(the “Permits”). Schedule 8.7 to the Information Certificate sets forth all of the Permits
issued to or held by Borrower as of the date hereof by any Federal, State or local governmental
agency and any applications pending by Borrower with such federal, state or local



54









 








governmental agency. The Permits constitute all permits, licenses, approvals, consents,
certificates, orders or authorizations necessary for Borrower to own and operate its business as
presently conducted or proposed to be conducted where the failure to have such Permits would have a
Material Adverse Effect. All of the Permits are valid and subsisting and in full force and effect.
There are no actions, claims or proceedings pending or threatened that seek the revocation,
cancellation, suspension or modification of any of the Permits.



          8.8. Environmental Compliance.


          (a) Except as set forth on Schedule 8.8 to the Information Certificate, Borrower has not
generated, used, stored, treated, transported, manufactured, handled, produced or disposed of any
Hazardous Materials, on or off its premises (whether or not owned by it) in any manner which
violates any applicable Environmental Law and the operations of Borrower comply with all applicable
Environmental Laws, in each case where such violation or failure to so comply would have a Material
Adverse Effect.


          (b) Except as set forth on Schedule 8.8 to the Information Certificate, there is no
investigation, proceeding, complaint, order, directive, claim, citation or notice by any
Governmental Authority or any other person pending or to the best of Borrower’s knowledge
threatened, with respect to any material non-compliance with or material violation of the
requirements of any applicable Environmental Law by Borrower.


          (c) Except as set forth in Schedule 8.8 to the Information Certificate, Borrower does not have
any liability (contingent or otherwise) in connection with a release, spill or discharge,
threatened or actual, of any Hazardous Materials or the generation, use, storage, treatment,
transportation, manufacture, handling, production or disposal of any Hazardous Materials which
would have a Material Adverse Effect.


          (d) Borrower has all licenses, certificates, approvals and other Permits required to be
obtained or filed in connection with the operations of Borrower under any Environmental Law in each
case where the failure to obtain or file the same would have a Material Adverse Effect and all such
licenses, permits, certificates, approvals or similar authorizations are valid and in full force
and effect where the failure to have any of such licenses, permits, certificates, approvals or
similar authorization would have a Material Adverse Effect.


          8.9. Credit Card Agreements.



     Set forth in Schedule 8.9 to the Information Certificate is a correct and complete list, as of
the date hereof, of (a) all of the Credit Card Agreements and all other agreements, documents and
instruments existing as of the date hereof between or among Borrower, any of its affiliates, the
Credit Card Issuers, the Credit Card Processors and any of, their affiliates; (b) the percentage of
each sale payable to the Credit Card Issuer or Credit Card Processor under the terms of the Credit
Card Agreements; (c) the amount of all reserves; or collateral maintained as of the date hereof by
the Credit Card Issuer or Credit Card Processor, if any, (d) all other fees and charges payable by
Borrower under or in connection with the Credit Card Agreements; and (e) the term of such Credit
Card Agreements. The Credit Card Agreements constitute all of such agreements necessary for
Borrower to operate its business as presently conducted with respect to credit cards



55









 





and debit cards and no Accounts of Borrower arise from purchases by customers of Inventory
with credit cards or debit cards, other than those which are issued by Credit Card Issuers with
whom Borrower has entered into one of the Credit Card Agreements set forth on Schedule 8.9 to the
Information Certificate or with whom Borrower has entered into a Credit Card Agreement in
accordance with Section 9.13 hereof. Each of the Credit Card Agreements constitutes a legal, valid
and binding obligation of Borrower and to the best of Borrower’s knowledge, the other parties
thereto, enforceable in accordance with their respective terms and are in full force and effect. No
default or event of default, or act, condition or event which after notice or passage of time or
both, would constitute a default or an event of default under any of the Credit Card Agreements
exists or has occurred and is continuing which would have a Material Adverse Effect, and Borrower
and the other parties thereto have complied with all of the terms and conditions of the Credit Card
Agreements to the extent necessary for Borrower to be entitled to receive all payments thereunder.
Borrower has delivered, or caused to be delivered to Collateral Agent, true, correct and complete
copies of all of the Credit Card Agreements.



          8.10. Employee Benefits.


          (a) Borrower has not engaged in any transaction in connection with which Borrower or any of
its ERISA Affiliates could be subject to either a civil penalty assessed pursuant to ERISA or a tax
imposed the Code, including any accumulated funding deficiency described in Section 8.10(c) hereof
and any deficiency with respect to vested accrued benefits described in Section 8.10(d) hereof.


          (b) No liability to the Pension Benefit Guaranty Corporation has been or is expected by
Borrower to be incurred with respect to any employee benefit plan of Borrower or any of its ERISA
Affiliates. There has been no reportable event (within the meaning of ERISA) or any other event or
condition with respect to any employee benefit plan of Borrower or any of its ERISA Affiliates
which presents a risk of termination of any such plan by the Pension Benefit Guaranty Corporation.


          (c) Full payment has been made of all amounts which Borrower or any of its ERISA Affiliates is
required under ERISA and the Code to have paid under the terms of each employee benefit plan as
contributions to such plan as of the last day of the most recent fiscal year of such plan ended
prior to the date hereof, and no accumulated funding deficiency (as defined in ERISA and the Code),
whether or not waived, exists with respect to any employee pension benefit plan, including any
penalty or tax described in Section 8.10(a) hereof and any deficiency with respect to vested
accrued benefits described in Section 8.10(d) hereof.


          (d) The current value of all vested accrued benefits under all employee pension benefit plans
maintained by Borrower that are subject to Title IV of ERISA does not exceed the current value of
the assets of such plans allocable to such vested accrued benefits, including any penalty or tax
described in Section 8.10(a) hereof and any accumulated funding deficiency described in Section
8.10(c) hereof. The terms “current value” and “accrued benefit” have the meanings specified in
ERISA.



56









 







          (e) Neither Borrower nor any of its ERISA Affiliates is or has ever been obligated to
contribute to any “multiemployer plan” (as such term is defined in ERISA) that is subject to Title
I of ERISA.


          8.11. Bank Accounts.



     All of the deposit accounts, investment accounts or other accounts in the name of or used by
Borrower maintained at any bank or other financial institution are set forth in Schedule 6.3 to the
Information Certificate, subject to the right of Borrower to establish new accounts in accordance
with Section 5.3(d) hereof and Store Bank Accounts (which may be established at any time, subject
to the provisions of Section 6.3(a)(i)).


          8.12. Regulation U.



     Borrower is not engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.


          8.13. Investment Company Act.



     Neither Borrower nor any of its Subsidiaries is an “investment company” or a company
“controlled” by an “investment company” or a “subsidiary” of an “investment company,” within the
meaning of the Investment Company Act of 1940.


          8.14. OFAC.



     Neither Borrower nor, to the best knowledge of Borrower, any Affiliate of Borrower (a) is a
Sanctioned Person, (b) does business in a Sanctioned Country in violation of the economic sanctions
of the United States administered by OFAC or (c) does business in such country or with any such
agency, organization or person, in violation of the economic sanctions of the United States
administered by OFAC.


          8.15. Accuracy and Completeness of Information.



     All information furnished by or on behalf of Borrower in writing to any Agent or any Lender in
connection with this Agreement or any of the other Financing Agreements or any transaction
contemplated hereby or thereby, including all information on the Information Certificate is true
and correct in all material respects on the date as of which such information is dated or certified
and does not omit any material fact necessary in order to make such information not misleading. No
event or circumstance has occurred which has had or could reasonably be expected to have a Material
Adverse Effect, which has not been fully and accurately disclosed to Administrative Agent in
writing.


          8.16. Survival of Warranties; Cumulative.



     All representations and warranties contained in this Agreement or any of the other Financing
Agreements shall survive the execution and delivery of this Agreement and shall be deemed to have
been made again to Agents and Lenders on the date of each additional borrowing or other credit
accommodation hereunder except to the extent that any such representations and



57









 





warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and shall be
conclusively presumed to have been relied on by Agents and Lenders regardless of any investigation
made or information possessed by any Agent or any Lender. The representations and warranties set
forth herein shall be cumulative and in addition to any other representations or warranties which
Borrower shall now or hereafter give, or cause to be given, to any Agent or any Lender. In no
event shall the corporate officers of Borrower have any personal liability to any Agent or any
Lender if any of the representations and warranties of Borrower in this Section 8 are false or
misleading, absent fraud.



          8.17. Exemption from Illinois Interest Act.



     Borrower represents and warrants that, for the purposes of 815 Illinois Compiled Statutes
205/4, the Loans and any Special Agent Advances constitute a business loan.



SECTION 9. AFFIRMATIVE AND NEGATIVE COVENANTS



          9.1. Maintenance of Existence.


          (a) Borrower shall at all times preserve, renew and keep in full, force and effect its
corporate existence and rights and franchises with respect thereto and maintain in full force and
effect all permits, licenses, trademarks, trade names, approvals, authorizations, leases and
contracts necessary to carry on the business as presently or proposed to be conducted.


          (b) Borrower shall not change its name unless each of the following conditions is satisfied:
(ii) Administrative Agent shall have received not less than thirty (30) days prior written notice
from Borrower of such proposed change in its corporate name, which notice shall accurately set
forth the new name; and (ii) Administrative Agent shall have received a copy of the amendment to
the Certificate of Incorporation of Borrower providing for the name change certified by the
Secretary of State of the jurisdiction of incorporation or organization of Borrower as soon as it
is available.


          (c) Borrower shall not change its chief executive office or its mailing address or
organizational identification number (or if it does not have one, shall not acquire one) unless
Administrative Agent shall have received not less than thirty (30) days’ prior written notice from
Borrower of such proposed change, which notice shall set forth such information with respect
thereto as Administrative Agent may require and Administrative Agent shall have received such
agreements as Administrative Agent may reasonably require in connection therewith. Borrower shall
not change its type of organization, jurisdiction of organization or other legal structure.


          9.2. New Collateral Locations.



     Borrower may only open any new location within the United States of America, Canada or Puerto
Rico provided Borrower has granted to Collateral Agent (i) a perfected security interest in the
Collateral at such location and (ii) a Landlord Agreement in respect of such new location if
required under the definition of Eligible Inventory. From time to time, upon request of
the Collateral Agent, Borrower shall provide Collateral Agent with an accurate list showing any new
locations or closed locations since the last such listing provided hereunder.




58












 





          9.3. Compliance with Laws, Regulations, Etc.




          (a) Borrower shall, and shall cause any Subsidiary to, at all times, comply in all material
respects with all laws, rules, regulations, licenses, Permits, approvals and orders applicable to
it and duly observe all requirements of any foreign, Federal, State or local Governmental
Authority, including ERISA, the Code, the Occupational Safety and Health Act of 1970, as amended,
the Fair Labor Standards Act of 1938, as amended, and all statutes, rules, regulations, orders,
permits and stipulations relating to environmental pollution and employee health and safety,
including all of the Environmental Laws in each case where the failure to so comply therewith or
observe such requirements would have a Material Adverse Effect. Without limitation of the
preceding provisions of this Section 9.3, Borrower shall (x) ensure that neither Borrower nor, to
the best knowledge of Borrower, any Affiliate of Borrower (i) becomes a Sanctioned Person, (ii)
does business in a Sanctioned Country in violation of the economic sanctions of the United States
administered by OFAC or (iii) does business in such country or with any such agency, organization
or person, in violation of the economic sanctions of the United States administered by OFAC, and
(y) comply, and cause each of its Subsidiaries to comply, with all applicable Bank Secrecy Act and
anti-money laundering laws and regulations.




          (b) Borrower shall give both oral and written notice to Administrative Agent within five (5)
Business Days of Borrower’s receipt of any notice of, or Borrower’s otherwise obtaining knowledge
of, (i) the occurrence of any event involving the release, spill or discharge, threatened or
actual, of any Hazardous Material at any one of Borrower’s properties or (ii) any investigation,
proceeding, complaint, order, directive, claims, citation or notice with respect to: (A) any
material non-compliance with or material violation of any Environmental Law by Borrower or (B) the
release, spill or discharge, threatened or actual, of any Hazardous Material or (C) the generation,
use, storage, treatment, manufacture, handling, production or disposal of any Hazardous Materials
or (D) any other environmental, health or safety matter which has or would have a Material Adverse
Effect.




          (c) Without limiting the generality of the foregoing, whenever Administrative Agent reasonably
determines that there is non-compliance, or any condition which requires any action by or on behalf
of Borrower in order to avoid any material non-compliance, with any Environmental Law, Borrower
shall, at Administrative Agent’s request and Borrower’s expense: (i) cause an independent
environmental engineer acceptable to Administrative Agent to conduct such tests of the site where
Borrower’s non-compliance or alleged non-compliance with such Environmental Laws has occurred as to
such non-compliance and prepare and deliver to Administrative Agent a report as to such
non-compliance setting forth the results of such tests, a proposed plan for responding to any
material environmental problems described therein, and an estimate of the costs thereof and (ii)
provide to Administrative Agent a supplemental report of such engineer whenever the scope of such
non-compliance, or Borrower’s response thereto or the estimated costs thereof, shall change in any
material respect.




          (d) Borrower shall indemnify and hold harmless Agents and Lenders and their respective
directors, officers, employees, agents, invitees, representatives, successors and assigns, from and
against any and all losses, claims, damages, liabilities, costs, and expenses (including attorneys’
fees and legal expenses) directly or indirectly arising out of or attributable to the use,
generation, manufacture, reproduction, storage, release, threatened release, spill,






59









 







discharge, disposal or presence of a Hazardous Material, including the costs of any required
or necessary repair, cleanup or other remedial work with respect to any property of Borrower and
the preparation and implementation of any closure, remedial or other required plans. All
representations, warranties, covenants and indemnifications in this Section 9.3 shall survive the
payment of the Obligations and the termination of this Agreement.




          9.4. Payment of Taxes and Claims.




     Borrower shall, and shall cause any Subsidiary to, duly pay and discharge all taxes,
assessments, contributions and governmental charges upon or against it or its properties or assets,
except for taxes the validity of which are being contested in good faith by appropriate proceedings
diligently pursued and available to Borrower or such Subsidiary, as the case may be, and with
respect to which adequate reserves have been set aside on its books. Borrower shall be liable for
any tax or penalties imposed on any Agent or any Lender as a result of the financing arrangements
provided for herein and Borrower agrees to indemnify and hold Agents and Lenders harmless with
respect to the foregoing, and to repay to Administrative Agent, for the benefit of Agents and
Lenders, on demand the amount thereof, and until paid by Borrower such amount shall be added and
deemed part of the Loans, provided, that, nothing contained herein shall be
construed to require Borrower to pay any income or franchise taxes attributable to the income of
Lenders from any amounts charged or paid hereunder to Lenders. The foregoing indemnity shall
survive the payment of the Obligations and the termination of this Agreement.



          9.5. Insurance.




     Borrower shall, and shall cause any Subsidiary to, at all times, maintain with financially
sound and reputable insurers insurance with respect to the Collateral against loss or damage and
all other insurance of the kinds and in the amounts customarily insured against or carried by
corporations of established reputation engaged in the same or similar businesses and similarly
situated. Said policies of insurance shall be reasonably satisfactory to Administrative Agent as
to form, amount and insurer. Borrower shall furnish certificates, policies or endorsements to
Administrative Agent as Administrative Agent shall require as proof of such insurance, and, if
Borrower fails to do so, Administrative Agent is authorized, but not required, to obtain after
providing written notice thereof to Borrower such insurance with respect to the Collateral at the
expense of Borrower. All policies shall provide for at least thirty (30) days prior written notice
to Administrative Agent of any cancellation or reduction of coverage. Administrative Agent may act
as attorney for Borrower in obtaining, and at any time an Event of Default exists or has occurred
and is continuing, adjusting, settling, amending and canceling any such insurance which relates to
the Collateral. Borrower shall cause Collateral Agent to be named as a loss payee and each Agent
an additional insured (but without any liability for any premiums) under such insurance policies
relating to the Collateral and Borrower shall obtain non-contributory lender’s loss payable
endorsements to all such insurance policies in form and substance satisfactory to Administrative
Agent. Such lender’s loss payable endorsements shall specify that the proceeds of such insurance
shall be payable to Collateral Agent as its interests may appear and further specify that
Collateral Agent shall be paid regardless of any act or omission by Borrower or any of its
Affiliates. Any insurance proceeds received by Collateral Agent at any time shall be applied to
payment of the Obligations in the order and manner set forth in Section 6.4(a) hereof.



60









 





          9.6. Financial Statements and Other Information.




          (a) Borrower shall keep proper books and records in which true and complete entries shall be
made of all dealings or transactions of or in relation to the Collateral and the business of
Borrower and its Subsidiaries (if any) in accordance with GAAP and Borrower shall furnish or cause
to be furnished to Administrative Agent: (i) within thirty-five days after the end of each fiscal
month, monthly unaudited consolidated financial statements (including in each case balance sheets,
statements of income and loss statements of cash flow and statements of shareholders’ equity), all
in reasonable detail, fairly presenting the financial position and the results of the operations of
borrower an its Subsidiaries, as of the end of and through such fiscal month and (ii) within ninety
(90) days after the end fiscal year, audited consolidated financial statements and, if Borrower has
any Subsidiaries, audited consolidating financial statements of Borrower and its Subsidiaries
(including in each case balance sheets, statements of income and loss, statements of cash flow and
statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail,
fairly presenting the financial position and the results of the operations of Borrower and its
Subsidiaries, as of the end of and for such fiscal year, together with the opinion of independent
certified public accountants, which accountants shall be an independent accounting firm selected by
Borrower and reasonably acceptable to Lender, that such financial statements have been prepared in
accordance with GAAP, and present fairly the results of operations and financial condition of
Borrower and its subsidiaries as of the end of and for the fiscal year then ended.




          (b) Borrower shall promptly notify Administrative Agent in writing of the details of (i) any
material loss, damage, investigation, action, suit, proceeding or claim relating to the Collateral
or any other property which is security for the Obligations or which has or would have a Material
Adverse Effect and (ii) the occurrence of any Event of Default or act condition or event which,
with the passage of time or giving of notice or both, would constitute an Event of Default.




          (c) Borrower shall promptly after the sending or filing thereof furnish or cause to be
furnished to Administrative Agent copies of all reports which Borrower sends to its stockholders
generally and copies of all reports and registration statements which Borrower files with the
Securities and Exchange Commission, any national securities exchange or the National Association of
Securities Dealers, Inc.




          (d) Borrower shall furnish or cause to be furnished to Administrative Agent such budgets,
forecasts, projections and other information respecting the Collateral and the business of
Borrower, as Administrative Agent may, from time to time, reasonably request. Administrative Agent
is hereby authorized to deliver a copy of any financial statement or any other information relating
to the business of Borrower to any court or other Governmental Authority or to any Lender or
Participant or to any prospective Lender or prospective Participant. Borrower hereby irrevocably
authorizes and directs all accountants or auditors to deliver to Administrative Agent, at
Borrower’s expense, copies of the financial statements of Borrower and any reports or management
letters prepared by such accountants or auditors on behalf of Borrower and to disclose to any Agent
or any Lender such information as they may have regarding the business of Borrower. Any documents,
schedules, invoices or other papers delivered to any Agent or any Lender may be destroyed or
otherwise disposed of by such Agent or such Lender one (1) year






61









 







after the same are delivered to such Agent or such Lender, except as otherwise designated by
Borrower to such Agent or such Lender in writing.




          9.7. Sale of Assets, Consolidation, Merger, Dissolution, Etc.




     Borrower shall not, and shall not permit any Subsidiary to (and no Agent nor any Lender
authorizes Borrower to), directly or indirectly,



          (a) merge into or with or consolidate with any other Person or permit any other Person to
merge into or with or consolidate with it if such merger or consolidation results in a Change of
Control;




          (b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or
indebtedness to any other Person or any of its assets to any other Person, except for





          (i) sales of Inventory in the ordinary course of business,




          (ii) the disposition of worn-out or obsolete Equipment so long as (A) any
proceeds are paid to Administrative Agent and (B) such sales do not involve
Equipment having an aggregate fair market value in excess of $2,000,000 for all such
Equipment disposed of in any fiscal year of Borrower;




          (iii) sales or other dispositions by Borrower of assets in connection with the
closing or sale of a retail store location of Borrower in the ordinary course of
Borrower’s business which consist of leasehold interests in the premises of such
store, the Equipment and fixtures located at such premises and the books and records
relating exclusively and directly to the operations of such store; provided,
that, as to each and all such sales, (A) on the date of, and after giving
effect to, any such sale, in any calendar year, Borrower shall not have closed or
sold retail store locations accounting for more than seven and one-half (7 1/2%)
percent of all sales of Borrower in the immediately preceding twelve (12) month
period, (B) Administrative Agent shall have received not less than ten (10) Business
Days prior written notice of such sale, which notice shall set forth in reasonable
detail satisfactory to Administrative Agent, the parties to such sale or other
disposition, the assets to be sold or otherwise disposed of, the purchase price and
the manner of payment thereof and such other information with respect thereto as
Administrative Agent may request, (C) as of the date of such sale or other
disposition and after giving effect thereto, no Event of Default, or act, condition
or event which with notice or passage of time would constitute an Event of Default,
shall exist or have occurred, (D) such sale shall be on commercially reasonable
prices and terms in a bona fide arms length transaction, and (E) any and all net
proceeds payable or delivered to respect of such sale or other disposition shall be
paid or delivered, or caused to be paid or delivered, to Administrative Agent in
accordance with the terms of this Agreement either, at Administrative Agent’s
option, for application to the Obligations in accordance with the terms hereof
(except to the extent such proceeds reflect payment in respect of indebtedness
secured by a properly perfected first priority security



62









 






interest in the assets sold, in which case, such proceeds shall be applied to
such indebtedness secured thereby) or to be held by Administrative Agent as cash
collateral for the Obligations on terms and conditions acceptable to Administrative
Agent;




          (iv) sales of Capital Stock of Borrower pursuant to a Qualified Public
Offering; provided, that, (A) Borrower shall not (except as
permitted by Section 9.11) pay or be required to pay any dividends or repurchase or
redeem such stock or make any other payments in respect thereof on or prior to the
end of the then current term of this Agreement and (B) the terms of such Capital
Stock and the purchase and sale thereof shall otherwise be reasonably acceptable to
Administrative Agent in all respects;




          (v) sales or other issuances of Capital Stock of Borrower to Borrower’s
directors, officers, employees and/or consultants pursuant to the Borrower’s
Restricted Stock Plan or any of Borrower’s other stock ownership arrangements
established for the benefit of such directors, officers, employees and/or
consultants;




          (vi) sales of Capital Stock to existing shareholders of the Borrower or
pursuant to rights offerings to such existing shareholders; or




          (vii) any sale, release or other disposition of any interest of Borrower in the
Studio Gear trademark or any other intellectual property rights with respect to that
brand;



          (c) form or acquire any subsidiaries; or




          (d) agree to do any of the foregoing.




          9.8. Encumbrances.




     Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, suffer or
permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any
nature whatsoever on any of its assets or properties, including the Collateral, except:
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b)
liens securing the payment of taxes, either not yet overdue or the validity of which are being
contested in good faith by appropriate proceedings diligently pursued and available to Borrower or
such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside
on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes)
arising in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such
liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to
claims or liabilities which are fully insured and being defended at the sole cost and expense and
at the sole risk of the insurer or being contested in good faith by appropriate proceedings
diligently pursued and available to Borrower or such Subsidiary, in each case prior to the
commencement of foreclosure or other similar proceedings and with respect to which adequate
reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants
and other restrictions affecting the use of real property which do not interfere in any material



63









 




respect with the use of such real property or ordinary conduct of the business of Borrower or
such Subsidiary as presently conducted thereon or materially impair the value of the real property
which may be subject thereto; (e) purchase money security interests in Equipment (including Capital
Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at
any time outstanding so long as such interests and mortgages do not apply to any property of
Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby
does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured
thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a
result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store
locations leased and operated by Borrower in the ordinary course of the business of Borrower to
secure the performance by Borrower of its obligations under the terms of the lease for such
premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under
Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to
the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges
and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness
of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the
aggregate amount so pledged or deposited, together with the amount of all Letter of Credit
Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed
$2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge
or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000,
(iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by
the other party to the Hedging Agreement as a condition to it entering into such contract with
Borrower and Administrative Agent shall have received evidence thereof in form and substance
satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after
giving effect thereto, no Default or Event of Default shall exist or have occurred and be
continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information
Certificate.




          9.9. Indebtedness.




     Borrower shall not, and shall not permit any Subsidiary to, incur, create, assume, become or
be liable in any manner with respect to, suffer or permit to exist, any obligations or
indebtedness, except:



          (a) the Obligations (excluding those described in Section 9.9(g) below);




          (b) trade obligations and normal accruals in the ordinary course of business not yet due and
payable, or with respect to which Borrower is contesting in good faith the amount or validity
thereof by appropriate proceedings diligently pursued and available to Borrower and with respect to
which adequate reserves have been set aside on its books;




          (c) purchase money indebtedness (including capital leases) to the extent not incurred or
secured by liens (including capital leases) in violation of any other provision of this Agreement;







64









 








          (d) indebtedness of Borrower for borrowed money (other than indebtedness permitted under
Section 9.9(c) above or Section 9.9(e) below) arising after the date hereof owing to any person in
an aggregate amount not to exceed $20,000,000 at any time outstanding; provided,
that, as to each and all of such indebtedness: (i) Administrative Agent shall have received
not less than ten (10) Business Days prior written notice of the intention to incur such
indebtedness, which notice shall set forth in reasonable detail satisfactory to Administrative
Agent, the amount of such indebtedness, the person to whom such indebtedness will be owed, the
interest rate, the schedule of repayments and maturity date with respect thereto and such other
information with respect thereto as Administrative Agent may request, (ii) Administrative Agent
shall have received true, correct and complete copies of all agreements, documents and instruments
evidencing or otherwise related to such indebtedness, as duly authorized, executed and delivered by
the parties thereto, (iii) such indebtedness shall be incurred by Borrower at commercially
reasonable rates and terms in a bona fide arms’ length transaction, (iv) if any of such
indebtedness is to be secured by any assets of Borrower, then (A) all of the terms and conditions
of such indebtedness and the person to whom such indebtedness is owed shall be reasonably
acceptable to Administrative Agent, (B) the security interests and liens on the assets of Borrower
in favor of such person to secure such indebtedness shall be junior and subordinate to the security
interests and liens of Administrative Agent on such assets on terms and conditions reasonably
acceptable to Administrative Agent, and (C) Administrative Agent shall have received, in form and
substance satisfactory to Administrative Agent, an intercreditor agreement between Administrative
Agent and such person, as acknowledged and agreed to by Borrower, duly authorized, executed and
delivered by such person and Borrower, providing for, inter alia, the parties’
relative rights and priorities with respect to the assets of Borrower, (v) such indebtedness shall
not at any time include terms and conditions which in any manner adversely affect Agents or Lenders
or any rights of either Agent or Lenders as determined in good faith by Administrative Agent and
confirmed by Administrative Agent to Borrower in writing or which are more restrictive or
burdensome than the terms or conditions of any other indebtedness of Borrower as in effect on the
date hereof (other than the Obligations), (vi) as of the date of incurring such indebtedness and
after giving effect thereto, no Event of Default shall exist or have occurred, (vii) Borrower may
only make regularly scheduled payments of principal and interest in respect of such indebtedness,
(viii) Borrower shall not, directly or indirectly, (A) amend, modify, alter or change the terms of
the agreements with respect to such indebtedness, except, that, Borrower may, after
prior written notice to Administrative Agent, amend, modify, alter or change the terms thereof so
as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to
forgive or cancel a portion of such indebtedness (other than pursuant to payments thereof), or to
release any liens or security interests in any assets of Borrower which secure such indebtedness
(if any), or to reduce the rate or any fees in connection therewith, or to make any covenants
contained therein less restrictive or burdensome as to Borrower or otherwise more favorable to
Borrower (as determined in good faith by Administrative Agent), or (B) redeem, retire, defease,
purchase or otherwise acquire such indebtedness, or set aside or other
wise deposit or invest any
sums for such purpose, and (ix) Borrower shall furnish to Administrative Agent all notices or
demands in connection with such indebtedness either received by Borrower or on its behalf promptly
after the receipt thereof, or sent by Borrower on its behalf, concurrently with the sending
thereof, as the case may be;




          (e) indebtedness of Borrower for borrowed money after the date hereof (other than indebtedness
permitted under Sections 9.9(c) and (d) above) arising after the date hereof;






65









 







provided, that, as to each and all of such indebtedness: (i) Administrative
Agent shall have received not less than ten (10) Business Days prior written notice of the
intention to incur such indebtedness, which notice shall set forth in reasonable detail
satisfactory to Administrative Agent, the amount of such indebtedness, the person to whom such
indebtedness will be owed, the interest rate, the schedule of repayments and maturity date with
respect thereto and such other information with respect thereto as Administrative Agent may request
(ii) Administrative Agent shall have received true, correct and complete copies of all agreements,
documents and instruments evidencing or otherwise related to such indebtedness, as duly authorized,
executed and delivered by the parties thereto, (iii) such indebtedness shall be incurred by
Borrower at commercially reasonable rates and terms in a bona fide arms’ length transaction, (iv)
such indebtedness is and shall remain at all times unsecured, (v) such indebtedness is, and shall
be, subject and subordinate in right of payment to the right of Administrative Agent to receive the
prior indefeasible payment and satisfaction in full of all of the Obligations, and Borrower shall
not make or be required to make payments in cash or other immediately available funds or other
property (but may make payment of interest by issuing indebtedness on the same terms) at any time
during the then current term of this Agreement, (vi) Administrative Agent shall have received, in
form and substance satisfactory to Administrative Agent, a subordination agreement between
Administrative Agent and such person, as acknowledged and agreed to by Borrower, duly authorized,
executed and delivered by such person and Borrower, providing for, inter alia the
terms of the subordination in right of payment of the indebtedness of Borrower to such person to
the prior indefeasible payment and satisfaction in full of all of the Obligations, (vii) such
indebtedness shall not at any time include terms and conditions which in any manner adversely
affect Administrative Agent or any rights of Administrative Agent as determined in good faith by
Administrative Agent and confirmed by Administrative Agent to Borrower in writing or which are more
restrictive or burdensome than the terms or conditions of any other indebtedness of Borrower as in
effect on the date hereof (other than the Obligations), (viii) as of the date of incurring such
indebtedness and after giving effect thereto, no Event of Default shall exist or have occurred,
(ix) Borrower shall not, directly or indirectly, (A) amend, modify, alter or change the terms of
the agreements with respect to such indebtedness, except, that, Borrower may, after
prior written notice to Administrative Agent, amend, modify, alter or change the terms thereof so
as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to
forgive or cancel a portion of such indebtedness (other than pursuant to Payments thereof), or to
reduce the rate or any fees in connection therewith, or to make any covenants contained therein
less restrictive or burdensome as to Borrower or otherwise more favorable to Borrower (as
determined in good faith by Administrative Agent), or (B) redeem, retire, defease, purchase or
otherwise acquire such indebtedness, or set aside or otherwise deposit or invest any sums for such
purpose, and (x) Borrower shall furnish to Administrative Agent all notices or demands in
connection with such indebtedness either received by Borrower or on its behalf promptly after the
receipt thereof, or sent by Borrower on its behalf, concurrently with the sending thereof, as the
case may be;




          (f) obligations or indebtedness existing as of the date hereof set forth on Schedule 9.9 to
the Information Certificate, provided, that, (i) Borrower may only make regularly
scheduled payments of principal and interest in respect of such indebtedness in accordance with the
terms of the agreement or instrument evidencing or giving rise to such indebtedness as in effect on
the date hereof, (ii) Borrower shall not, directly or indirectly, (A) amend, modify, alter or
change the terms of such indebtedness or any agreement, document or instrument related






66









 







thereto as in effect on the date hereof, except, that, Borrower may, after
prior written notice to Administrative Agent, amend, modify, alter or change the terms thereof so
as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to
forgive or cancel a portion of such indebtedness (other than pursuant to payments thereof), or to
reduce the interest rate or any fees in connection therewith, or to release any of the liens or
security interests in any assets and properties of Borrower which secure such indebtedness, or to
make any covenants contained therein less restrictive or burdensome as to Borrower or otherwise
more favorable to Borrower (as determined in good faith by Administrative Agent), or (B) redeem,
retire, defease, purchase or otherwise acquire such indebtedness, or set aside or otherwise deposit
or invest any sums for such purpose, and (iii) Borrower shall furnish to Administrative Agent all
notices or demands in connection with such indebtedness either received by Borrower or on its
behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with
the sending thereof, as the case may be; and




          (g) (A) contingent liabilities of Borrower pursuant to any Hedging Agreements entered into by
Borrower; provided that the aggregate principal notional amount of indebtedness
that may be subject to Hedging Agreements at any one time shall not exceed $100,000,000 at any
time. Notwithstanding any provision herein to the contrary, no Affiliate of a Lender shall act as
a counterparty to a Hedging Agreement unless and until such Affiliate shall have entered into a
written agreement and acknowledgement in favor of Administrative Agent, in form and substance
satisfactory to Administrative Agent, in which such Affiliate agrees to be bound by the terms of
this Agreement, in the capacity as a counterparty to a Hedging Agreement, in the same manner as a
Lender hereunder, in the capacity as a counterparty to a Hedging Agreement and (B) contingent
liabilities of Borrower pursuant to any Other Hedging Agreements entered into by Borrower;
provided that (i) Lenders shall have been given a reasonable opportunity to match
the proposed terms of the Other Hedging Agreements prior to Borrower entering into the Other
Hedging Agreements and (ii) the aggregate principal notional amount of indebtedness that may be
subject to Other Hedging Agreements at any one time shall not exceed $25,000,000.




          9.10. Loans, Investments, Etc.




     Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly, make, or
suffer or permit to exist, any loans or advance money or property to any person, or any investment
in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or
indebtedness or all or a substantial part of the assets or property of any Person, or guarantee,
assume, endorse or otherwise become responsible for (directly or indirectly) the indebtedness,
performance, obligations or dividends of any Person, or agree to do any of the foregoing,
except:



          (a) the endorsement of instruments for collection or deposit in the ordinary course of
business;




          (b) investments in Cash Equivalents, provided, that, as to any of the
foregoing, unless waived in writing by Administrative Agent, Borrower shall take such actions as
are deemed necessary by Administrative Agent to perfect the security interest of Collateral Agent
in such investments;







67









 








          (c) loans and advances by Borrower to employees of Borrower not to exceed the principal amount
of $500,000 in the aggregate at any time outstanding for reasonable and necessary work-related
travel or other ordinary business expenses to be incurred by employees in connection with their
work for Borrower;




          (d) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof
as set forth on Schedule 9.10 to the Information Certificate; provided, that, as to
such loans, advances and guarantees, (i) Borrower shall not directly or indirectly, (A) amend,
modify, alter or change the term of such loans, advances or guarantees or any agreement, document
or instrument related thereto, or (B) as to such guarantees, redeem, retire, defease, purchase or
otherwise acquire such guarantee or set aside or otherwise deposit or invest any sums for such
purpose and (ii) Borrower shall furnish to Administrative Agent all notices, demands or other
materials in connection with such loans, advances or guarantees either received by Borrower or on
its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently
with the sending thereof, as the case may be; and




          (e) loans by Borrower, to the extent they are permitted by applicable law, to officers or
directors of Borrower not to exceed $15,000,000 in the aggregate at any time, provided,
that, with respect to any such loan, (i) the officer or director shall have executed and
delivered to the Borrower a promissory note in form and substance sufficient to evidence the loan,
(ii) the loan shall be recorded on the books and records of Borrower in a manner satisfactory to
Administrative Agent, (iii) the proceeds of the loan shall be used either to purchase common or
preferred stock in the Borrower, or to finance the exercise of restricted stock options, together
with the ordinary income tax attributable to such exercise (provided, that the aggregate
outstanding amount of such loans used to finance tax liabilities shall at no time exceed
$7,500,000), (iv) the stock so purchased shall be pledged by such officer or director to the
Borrower as security for the loan, (v) the maturity date of the loan shall not be more than ten
(10) years from the date the loan is made and (vi) the interest rate on the loan shall be
sufficient under regulations promulgated by the Internal Revenue Service to prevent such loan from
being treated as a below-market loan causing the attribution to such officer or director of income
as a result of the loan transaction; and




          (f) other loans, advances and/or investments not to exceed $30,000,000 in the aggregate in any
fiscal year of the Borrower as long as (i) no Event of Default has occurred and is continuing at
the time of such loan, advance or investment, (ii) after giving pro forma effect to any such loans,
advances and/or investments, the Excess Availability for the thirty (30) days prior, and the daily
average projected Excess Availability as of the end of each of the immediately following twelve
months, shall be not less than the greater of (1) $40,000,000, and (2) thirty percent (30%) of the
lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula
set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to
time established by Agents hereunder and (B) the Maximum Credit, and (iii) any assets acquired in
connection with any investment shall not be eligible to be included in the Borrowing Base until the
Administrative Agent shall have had the opportunity to conduct such due diligence as the
Administrative Agent may require, the results of the which shall be satisfactory to the Agents.







68









 








          9.11. Dividends and Redemptions. Borrower shall not, directly or indirectly, declare
or pay any dividends on account of any shares of class of Capital Stock of Borrower now or
hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or
redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or
set aside or otherwise deposit or invest any sums for such purpose) for any consideration other
than common stock or apply or set apart any sum, or make any other distribution (by reduction of
capital or otherwise) in respect of any such shares or agree to do any of the foregoing,
except, that




          (a) Borrower may repurchase shares of Capital Stock of Borrower from any former employee of
Borrower (or in connection with any severance arrangement with any employee) to the extent such
Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other
employee stock purchase arrangement granted in the ordinary course of the business of Borrower;
provided, that, (i) no Default or Event of Default shall exist or have occurred at the time
of or after giving effect to any such payments, (ii) the aggregate amount paid by Borrower
(including any amount forgiven by Borrower with respect to any loan or advance made to any such
employees under clause (e) of Section 9.10) to all such former employees of Borrower shall not in
any twelve (12) month period exceed $25,000,000 less the amount of any payments which are made in
such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering,
(iii) as of the date of any such payments, the daily average of the Excess Availability for the
immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and
(iv) there shall be no limitation on the right of Borrower to make such purchases using net cash
proceeds of a Qualified Public Offering; and




          (b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower
constituting common stock, provided, that, each of the following conditions is
satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after
giving effect to any such dividends, (ii) any dividends shall be out of funds legally available
therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be
not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to
Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the
sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the
Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve
month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the
Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a)
hereof, subject to the sublimits and Availability Reserves from time to time established by Agents
hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less
than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends
specifying the amount of such dividends which Borrower intends to pay, together with projections of
Excess Availability supported by a set of 12 month financial statements (including profit and loss,
balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the
Administrative Agent and Lenders (not to be unreasonably withheld); and




          (c) Borrower may declare and pay any accrued and unpaid dividends, or redeem or retire any
shares of Capital Stock of Borrower (in addition to any dividends permitted under






69









 







Section 9.11(a) and (b) above), provided, that, each of the following
conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the
time of or after giving effect to any such payments, (ii) any such payments shall be out of funds
legally available therefor, (iii) all such payments shall either (A) be made solely with the net
cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount
in any twelve (12) month period of $25,000,000 less any amounts paid during such period under
Section 9.11(a) above, provided that, as of the date of any payment under this
Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately
preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv)
Administrative Agent shall have received not less than five (5) Business Days prior written notice
of the intention of Borrower to make such payments specifying the amount of such payments which
Borrower intends to make.




          (d) In connection with any stockholder rights agreement or rights plan adopted by Borrower’s
Board of Directors (commonly referred to as a “poison pill”) Borrower may declare and pay a
dividend in respect of the Capital Stock of Borrower, consisting, with respect to each share of
such Capital Stock, solely of the right to purchase a specified fraction of a share of a newly
created junior preferred stock, such specified fraction of a share of preferred stock to have
equivalent voting and dividend rights as one whole share of common stock.




          9.12. Transactions with Affiliates.




     Borrower shall not directly or indirectly, (a) purchase, acquire or lease any property from or
sell, transfer or lease any property to, any officer, employee, shareholder, director, agent or any
other affiliate of Borrower, except in the ordinary course of and pursuant to the reasonable
requirements of Borrower’s business and upon fair and reasonable terms no less favorable to
Borrower than Borrower would obtain in a comparable arm’s length transaction with a person who is
not an Affiliate or (b) make any payments of management, consulting or other fees for management or
similar services, or of any Indebtedness owing to any officer, employee, shareholder, director or
other person affiliated with Borrower except reasonable compensation to officers, employees and
directors for services rendered to Borrower in the ordinary course of business.



          9.13. Credit Card Agreements.




     Borrower shall (a) observe and perform all material terms, covenants, conditions and
provisions of the Credit Card Agreements to be observed and performed by it at the times set forth
therein; (b) not do, permit, suffer or refrain from doing anything, as a result of which there
could be a default under or breach of any of the terms of any of the Credit Card Agreements and (c)
at all times maintain in full force and effect the Credit Card Agreements and not terminate,
cancel, surrender, modify, amend, waive or release any of the Credit Card Agreements, or consent to
or permit to occur any of the foregoing; except, that, Borrower may terminate or
cancel any of the Credit Card Agreements in the ordinary course of the business of Borrower,
provided, that, Borrower shall give each Agent not less than fifteen (15) days
prior written notice of its intention to so terminate or cancel any of the Credit Card Agreements;
(d) not enter into any new Credit Card Agreements with any new Credit Card Issuer unless (i) each
Agent shall have received not less than thirty (30) days prior written notice of the intention of
Borrower to enter into such agreement (together with such other information with respect thereto as
any



70









 




Agent may reasonably request) and (ii) Borrower delivers, or causes to be delivered to
Collateral Agent, a Credit Card Notification in favor of Collateral Agent, (e) give each Agent
immediate written notice of any Credit Card Agreement entered into by Borrower after the date
hereof, together with a true, correct and complete copy thereof and such other information with
respect thereto as any Agent may reasonably request; and (f) furnish to each Agent, promptly upon
the request of any Agent, such information and evidence as any Agent may reasonably request from
time to time concerning the observance, performance and compliance by Borrower or the other party
or parties thereto with the terms, covenants or provisions of the Credit Card Agreements.




          9.14. Adjusted Tangible Net Worth.




     Borrower shall, at all times have and maintain Adjusted Tangible Net Worth of not less than
$200,000,000.



          9.15. Compliance with ERISA.




          (a) Borrower shall not with respect to any “employee benefit plans” maintained by Borrower or
any of its ERISA Affiliates: (i) terminate any of such employee pension plans so as to incur any
liability to the Pension Benefit Guaranty Corporation established pursuant to ERISA, (ii) allow or
suffer to exist any prohibited transaction involving any of such employee benefit plans or any
trust created them-under which would subject Borrower or such ERISA Affiliate to a tax or penalty
or other liability on prohibited transactions imposed under the Code or ERISA, (iii) fail to pay to
any such employee benefit plan any contribution which it is obligated to pay under ERISA, the Code
or the term of such plan, (iv) allow or suffer to exist any accumulated funding deficiency, whether
or not waived, with respect to any such employee benefit plan, (v) allow or suffer to exist any
occurrence of a reportable event or any other event or condition which presents a material risk of
termination by the Pension Benefit Guaranty Corporation of any such employee benefit plan that is a
single employer plan, which termination could result in any liability to the Pension Benefit
Guaranty Corporation or (ii) incur any withdrawal liability with respect to any multiemployer
pension plan.




          (b) As used in this Section 9.15, the term “employee pension benefit plans,” “employee benefit
plans”, “accumulated funding deficiency” and “reportable event” shall have the respective meanings
assigned to them in ERISA, and the term “prohibited transaction” shall have the meaning assigned to
it in the Code and ERISA.




          9.16. Costs and Expenses.




     Borrower shall pay to each Agent on demand all reasonable costs, expenses, filing fees and
taxes paid or payable in connection with the preparation, negotiation, execution, delivery,
recording, administration, collection, liquidation, enforcement and defense of the Obligations,
Collateral Agent’s rights in the Collateral, this Agreement, the other Financing Agreements and all
other documents related hereto or thereto, including any amendments, supplements or consents which
may hereafter be contemplated (whether or not executed) or entered into in respect hereof and
thereof, including, but not limited to: (a) all costs and expenses of filing or recording
(including Uniform Commercial Code financing statement filing taxes and fees, documentary taxes,
intangibles taxes and mortgage recording taxes and fees, if applicable); (b)



71









 




all reasonable appraisal fees and search fees; (c) costs and expenses of remitting loan
proceeds, collecting checks and other items of payment, and establishing and maintaining the
Blocked Accounts, together with each Agent’s customary charges and fees with respect thereto; (d)
charges, fees or expenses charged by any bank or LC Issuer in connection with the Letter of Credit
Accommodations; (e) reasonable costs and expenses of preserving and protecting the Collateral; (f)
costs and expenses paid or incurred in connection with obtaining payment of the Obligations,
enforcing the security interests and liens of Collateral Agent, selling or otherwise realizing upon
the Collateral, and otherwise enforcing the provisions of this Agreement and the other Financing
Agreements or defending any claims made or threatened against any Agent or any Lender arising out
of the transactions contemplated hereby and thereby (including, without limitation, preparations
for and consultations concerning any such matters); (g) all reasonable out-of-pocket expenses and
costs heretofore and from time to time hereafter incurred by Collateral Agent during the course of
periodic field examinations of the Collateral and Borrower’s operations, to the extent required
under Section 7.6 hereof, and (h) the fees and disbursements of counsel (including legal
assistants) to Agents and Lenders in connection with any of the foregoing.




          9.17. Further Assurances.




     At the request of any Agent at any time and from time to time, Borrower shall, at its expense,
duly execute and deliver, or cause to be duly executed and delivered, such further agreements,
documents and instruments, and do or cause to be done such further acts as may be necessary or
proper to evidence, perfect, maintain and enforce the security interests and the priority thereof
in the Collateral and to otherwise effectuate the provisions or purposes of this Agreement or any
of the other Financing Agreements. Administrative Agent may at any time and from time to time
request a certificate from an officer of Borrower representing that all conditions precedent to the
making of Loans and providing Letter of Credit Accommodations contained herein are satisfied. In
the event of such request by Administrative Agent, Agents and Lenders may, at Administrative
Agent’s option, cease to make any further Loans or provide any further Letter of Credit
Accommodations until Administrative Agent has received such certificate and, in addition,
Administrative Agent has determined that such conditions are satisfied.



SECTION 10. EVENTS OF DEFAULT AND REMEDIES




          10.1. Events of Default.




     The occurrence or existence of any one or more of the following events is referred to herein
individually as an “Event of Default”, and collectively as “Events of Default”:



          (a) (i) Borrower fails to pay any of the Obligations within three (3) Business Days after the
same becomes due and payable or (ii) Borrower or any Obligor fails to perform any of the covenants
contained in Sections 5.3(d), 9.1, 9.2, 9.3, 9.4, 9.6, 9.13, 9.14, 9.15 and 9.16 of this Agreement
and such failure shall continue for ten (10) days; provided, that, such ten (10)
day period shall not apply in the case of: (A) any failure to observe any such covenant which is
not capable of being cured at all or within such ten (10) day period or which has been the subject
of a prior failure within a six (6) month period (provided that if an Event of
Default has occurred as a






72









 







result of the Borrower’s failure to comply with the provisions of Section 9.14, then, except
as provided in the subsequent proviso, to the extent that the Borrower receives a cash capital
contribution in a sufficient amount to cure such Event of Default (to the extent such Event of
Default may be cured by a cash capital contribution), which additional cash capital contribution
shall be received within fifteen (15) days of the date upon which the Borrower has knowledge of the
occurrence of such Event of Default, then upon timely satisfaction of the foregoing provisions in
this proviso, such Event of Default shall be deemed cured or waived; provided further that
if the right to so cure any Event of Default under Section 9.14 has been exercised on two occasions
in any fiscal year or on six (6) occasions after the Closing Date, then no further cure of such
failure hereunder may be made, or shall be required to be accepted by the Agents and the Lenders,
during the remainder of such fiscal year or during the remaining term of this Agreement, as
applicable); or (B) an intentional breach by Borrower or any Obligor of any such covenant, or (iii)
Borrower fails to perform any of the terms, covenants, conditions or provisions contained in this
Agreement or any of the other Financing Agreements other than those described in Sections
10.1(a)(i) and 10.1(a)(ii) above;




          (b) any representation, warranty or statement of fact made by Borrower to any Agent or any
Lender in this Agreement, the other Financing Agreements or any other agreement, schedule,
confirmatory assignment or otherwise shall when made or deemed made be false or misleading in any
material respect;




          (c) any Obligor revokes, terminates or fails to perform any of the terms, covenants,
conditions or provisions of any guarantee, endorsement or other agreement of such party in favor of
any Agent or any Lender;




          (d) any judgment for the payment of money is rendered against Borrower or any Obligor in
excess of $5,000,000 in any one case or in excess of $10,000,000 in the aggregate and shall remain
undischarged or unvacated for a period in excess of forty-five (45) days or execution shall at any
time not be effectively stayed, or any judgment other than for the payment of money, or injunction,
attachment, garnishment or execution is rendered against Borrower or any Obligor or any of their
assets;




          (e) any Obligor (being a natural person or a general partner of an Obligor which is a
partnership) dies or Borrower or any Obligor, which is a partnership, limited liability company,
limited liability partnership or a corporation, dissolves or suspends or discontinues doing
business;




          (f) Borrower or any Obligor becomes insolvent (however defined or evidenced), makes an
assignment for the benefit of creditors, makes or sends notice of a bulk transfer or calls a
meeting of its creditors or principal creditors;




          (g) a case or proceeding under the bankruptcy laws of the United States of America now or
hereafter in effect or under any insolvency, reorganization, receivership, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction now or hereafter in effect (whether
at law or in equity) is filed against Borrower or any Obligor or all or any part of its properties
and such petition or application is not dismissed within sixty (60) days after the date of its
filing or Borrower or any Obligor shall file any answer admitting or not contesting






73









 







such petition or application or indicates its consent to, acquiescence in or approval of, any
such action or proceeding or the relief requested is granted sooner;




          (h) a case or proceeding under the bankruptcy laws of the United States of America now or
hereafter in effect or under any insolvency, reorganization, receivership, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction now or hereafter in effect (whether
at a law or equity) is filed by Borrower or any Obligor or for all or any part of its property; or




          (i) any default by Borrower or any Obligor under any agreement, document or instrument
relating to any indebtedness for borrowed money owing to any person other than Agent and Lenders,
or any capitalized lease obligations, contingent indebtedness in connection with any guarantee,
letter of credit, indemnity or similar type of instrument in favor of any person other than Agents
and Lenders, in any case in an amount in excess of $5,000,000, which default continues for more
than the applicable cure period, if any, with respect thereto, or any default by Borrower or any
Obligor under any material contract, lease, license or other obligation to any person other than
Agents and Lenders, which default continues for more than the applicable cure period, if any, with
respect thereto;




          (j) any Change of Control;




          (k) the indictment or threatened indictment of Borrower or any Obligor under any criminal
statute. or commencement or threatened commencement of criminal or civil proceedings against
Borrower or any Obligor, pursuant to which statute or proceedings the penalties or remedies sought
or available include forfeiture of any of the property of Borrower or such Obligor; or




          (l) there shall be an event of default under any of the other Financing Agreements.




          10.2. Remedies.




          (a) At any time an Event of Default exists or has occurred and is continuing, Agents and
Lenders shall have all rights and remedies provided in this Agreement, the other Financing
Agreements, the UCC and other applicable law, all of which rights and remedies may be exercised
without notice to or consent by Borrower or any Obligor, except as such notice or consent is
expressly provided for hereunder or required by applicable law. All rights, remedies and powers
granted to Agents and Lenders hereunder, under any of the other Financing Agreements, the UCC or
other applicable law, are cumulative, not exclusive, and enforceable, in Administrative Agent’s
discretion, alternatively, successively, or concurrently on any one or more occasions, and shall
include, without limitation, the right to apply to a court of equity for an injunction to restrain
a breach or threatened breach by Borrower or of this Agreement or any of the other Financing
Agreements. Administrative Agent may, in accordance with the terms hereof, at any time or times,
proceed directly against Borrower or any Obligor to collect the Obligations without prior recourse
to any Obligor or any of the Collateral.




          (b) Without limiting the foregoing, at any time an Event of Default exists or has occurred and
is continuing, Administrative Agent may, in its discretion, or upon the direction of






74









 







Required Lenders shall, and, without limitation, (i) accelerate the payment of all Obligations
and demand immediate payment thereof to Administrative Agent for itself and for the ratable benefit
of Lenders (provided, that, upon the occurrence of any Event of Default described
in Sections 10.1(g) and 10.1(h), all Obligations shall automatically become immediately due and
payable), (ii) with or without judicial process or the aid or assistance of others, direct
Collateral Agent to, and Collateral Agent shall, enter upon any premises on or in which any of the
Collateral may be located and take possession of the Collateral or complete processing,
manufacturing and repair of all or any portion of the Collateral, (iii) require Borrower, at
Borrower’s expense, to assemble and make available to Collateral Agent any part or all of the
Collateral at any place and time designated by Collateral Agent, (iv) direct Collateral Agent to,
and Collateral Agent shall, collect, foreclose, receive, appropriate, setoff and realize upon any
and all Collateral, (v) direct Collateral Agent to, and Collateral Agent shall, remove any or all
of the Collateral from any premises on or in which the same may be located for the purpose of
effecting the sale, foreclosure or other disposition thereof or for any other purpose, (vi) direct
Collateral Agent to, and Collateral Agent shall, sell, lease, transfer, assign, deliver or
otherwise dispose of any and all Collateral (including entering into contracts with respect
thereto, public or private sales at any exchange, broker’s board, at any office of Collateral Agent
or elsewhere) at such prices or terms as Collateral Agent may deem reasonable, for cash, upon
credit or for future delivery, with the Collateral Agent having the right to purchase the whole or
any part of the Collateral at any such public sale, all of the foregoing being free from any right
or equity of redemption of Borrower, which right or equity of redemption is hereby expressly waived
and released by Borrower (vii) direct the Collateral Agent to conduct one or more going out of
business sales, in the Collateral Agent’s own right or by one or more agents and contractors. The
Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment
the Inventory with other goods (all of which other goods shall remain the sole property of the
Collateral Agent or such agent or contractor); any amounts realized from the sale of such goods
which constitute augmentations to the Inventory (net of an allocable share of the costs and
expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such
agent or contractor and neither the Borrower nor any Person claiming under or in right of any
Borrower shall have any interest therein; and/or (vii) terminate this Agreement. If any of the
Collateral is sold or leased by Collateral Agent upon credit terms or for future delivery, the
Obligations shall not be reduced as a result thereof until payment therefor is finally collected by
Collateral Agent. If notice of disposition of Collateral is required by law, ten (10) days prior
notice by Collateral Agent to Borrower designating the time and place of any public sale or the
time after which any private sale or other intended disposition of Collateral is to be made, shall
be deemed to be reasonable notice thereof and Borrower waives any other notice. In the event any
Agent institutes an action to recover any Collateral or seeks recovery of any Collateral by way of
prejudgment remedy, Borrower waives the posting of any bond which might otherwise be required. At
any time an Event of Default exists or has occurred and is continuing, upon Administrative Agent’s
request, Borrower will either, as Administrative Agent shall specify, furnish cash collateral to
the LC Issuer to be used to secure and fund Ag
ent’s reimbursement obligations to the LC Issuer in
connection with any Letter of Credit Accommodations or furnish cash collateral to Administrative
Agent for the Letter of Credit Accommodations. Such cash collateral shall be in the amount equal
to one hundred ten (110%) percent of the amount of the Letter of Credit Accommodations plus the
amount of any fees and expenses payable in connection therewith through the end of the expiration
of such Letter of Credit Accommodations.







75









 








          (c) To the extent that applicable law imposes duties on any Agent or any Lender to exercise
remedies in a commercially reasonable manner (which duties cannot be waived under such law),
Borrower acknowledges and agrees that it is not commercially unreasonable for Agents and Lenders
(i) to fail to incur expenses reasonably deemed significant by any Agent or any Lender to prepare
Collateral for disposition or otherwise to complete raw material or work in process into finished
goods or other finished products for disposition, (ii) to fail to obtain third party consents for
access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to
obtain consents of any Governmental Authority or other third party for the collection or
disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection
remedies against account debtors, secondary obligors or other persons obligated on Collateral or to
remove liens or encumbrances on or any adverse claims against Collateral, (iv) to exercise
collection remedies against account debtors and other persons obligated on Collateral directly or
through the use of collection agencies and other collection specialists, (v) to advertise
dispositions of Collateral through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (vi) to contact other persons, whether or not in the same
business as Borrower for expressions of interest in acquiring all or any portion of the Collateral,
(vii) to hire one or more professional auctioneers to assist in the disposition of Collateral,
whether or not the collateral is of a specialized nature, (viii) to dispose of Collateral by
utilizing Internet sites that provide for the auction of assets of the types included in the
Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of
assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim
disposition warranties, (xi) to purchase insurance or credit enhancements to insure Agents and
Lenders against risks of loss, collection or disposition of Collateral or to provide to Collateral
Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent
deemed appropriate by Collateral Agent, to obtain the services of other brokers, investment
bankers, consultants and other professionals to assist Collateral Agent in the collection or
disposition of any of the Collateral. Borrower acknowledges that the purpose of this Section is to
provide non-exhaustive indications of what actions or omissions by Collateral Agent would not be
commercially unreasonable in Collateral Agent’s exercise of remedies against the Collateral and
that other actions or omissions by any Agent or any Lender shall not be deemed commercially
unreasonable solely on account of not being indicated in this Section. Without limitation of the
foregoing, nothing contained in this Section shall be construed to grant any rights to Borrower or
to impose any duties on any Agent or any Lender that would not have been granted or imposed by this
Agreement or by applicable law in the absence of this Section.




          (d) For the purpose of enabling Agents to exercise the rights and remedies hereunder, Borrower
hereby grants to Agents, to the extent assignable, an irrevocable, non-exclusive license
(exercisable without payment of royalty or other compensation to Borrower) to use, assign, license
or sublicense any of the trademarks, service-marks, trade names, business names, trade styles,
designs, logos and other source of business identifiers and other Intellectual Property, general
intangibles and other assets described in Section 5.2 of this Agreement, now owned or hereafter
acquired by Borrower, wherever the same maybe located, including in such license reasonable access
to all media in which any of the licensed items may be recorded or stored and to all computer
programs used for the compilation or printout thereof.




          (e) Administrative Agent may apply the cash proceeds of Collateral actually received by
Collateral Agent from any sale, lease, foreclosure or other disposition of the






76









 







Collateral to payment of the Obligations, in whole or in part and in such order as
Administrative Agent may elect, whether or not then due. Borrower shall remain liable to Agents
and Lenders for the payment of any deficiency with interest at the highest rate provided for herein
and all costs and expenses of collection or enforcement, including attorneys’ fees and legal
expenses.




          (f) Without limiting the foregoing, upon the occurrence of a Default or Event of Default,
Administrative Agent may, at its option, or upon the direction of Required Lenders shall, without
notice, (i) cease making Loans or arranging for Letter of Credit Accommodations or reduce the
lending formulas or amounts of Revolving Loans and Letter of Credit Accommodations available to
Borrower and/or (ii) terminate any provision of this Agreement providing for any future Loans or
Letter of Credit Accommodations to be made by Agents and Lenders to Borrower.




SECTION 11. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW




          11.1. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.




          (a) The validity, interpretation and enforcement of this Agreement and the other Financing
Agreements and any dispute arising out of the relationship between the parties hereto, whether in
contract, tort, equity or otherwise, shall be governed by the internal laws of the State of
Illinois (without giving effect to principles of conflicts of law).




          (b) Borrower, Agents and Lenders irrevocably consent and submit to the non-exclusive
jurisdiction of the Circuit Court of Cook County, Illinois and the United States District Court for
the Northern District of Illinois and waive any objection based on venue or forum
non conveniens with respect to any action instituted therein arising under this
Agreement or any of the other Financing Agreements or in any way connected with or related or
incidental to the dealings of the parties hereto in respect of this Agreement or any of the other
Financing Agreements or the transactions related hereto or thereto, in each case whether now
existing or hereafter arising, and whether in contract, tort, equity or otherwise, and agree that
any dispute with respect to any such matters shall be heard only in the courts described above
(except that Agents and Lenders shall have the right to bring any action or proceeding against
Borrower or its property in the courts of any other jurisdiction which Administrative Agent deems
necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights
against Borrower or its property).




          (c) Borrower hereby waives personal service of any and all process upon it and consents that
all such service of process may be made by certified mail (return receipt requested) directed to
its address set forth herein and service so made shall be deemed to be completed five (5) days
after the same shall have been so deposited in the U.S. mails, or, at Administrative Agent’s
option, by service upon Borrower in any other manner provided under the rules of any such courts.
Within thirty (30) days after such service, Borrower shall appear in answer to such process,
failing which Borrower shall be deemed in default and judgment may be entered by Administrative
Agent against Borrower for the amount of the claim and other relief requested.







77









 








          (d) BORROWER, AGENTS AND LENDERS EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING
AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. BORROWER, AGENTS AND LENDERS EACH HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT BORROWER OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.




          (e) Agents and Lenders shall not have any liability to Borrower (whether in tort, contract,
equity or otherwise) for losses suffered by Borrower in connection with, arising out of, or in any
way related to the transactions or relationships contemplated by this Agreement, or any act,
omission or event occurring in connection herewith, unless it is determined by a final and
non-appealable judgment or court order binding on such Agent and such Lender, that the losses were
the result of acts or omissions constituting gross negligence or willful misconduct of such Agent
or such Lender. In any such litigation, Agents and Lenders shall be entitled to the benefit of the
rebuttable presumption that it acted in good faith and with the exercise of ordinary care in the
performance by it of the terms of this Agreement.




          11.2. Waiver of Notices.




     Borrower hereby expressly waives demand, presentment, protest and notice of protest and notice
of dishonor with respect to any and all instruments and chattel paper, included in or evidencing
any of the Obligations or the Collateral, and any and all other demands and notices of any kind or
nature whatsoever with respect to the Obligations, the Collateral and this Agreement, except such
as are expressly provided for herein. No notice to or demand on Borrower which any Agent or any
Lender may elect to give shall entitle Borrower to any other or further notice or demand in the
same, similar or other circumstances.



          11.3. Amendments and Waivers.




          (a) Except for actions expressly permitted to be taken by any Agent, no amendment,
modification, termination or waiver of any provision of this Agreement or any other Financing
Agreement, or any consent to any departure by Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by an authorized officer of Administrative Agent and
Borrower, and by Required Lenders or all affected Lenders, as applicable. Except as set forth in
clauses (b) and (c) below, all such amendments, modifications, terminations or waivers requiring
the consent of any Lenders shall require the written consent of Required Lenders.







78









 








          (b) No amendment, modification, termination or waiver of or consent with respect to any
provision of this Agreement that (i) increases the percentage advance rates set forth in Section
2.1(a) hereof, makes less restrictive the nondiscretionary criteria for exclusion from
“Eligible Inventory” set forth in the definition of such term, or (ii) amends Section 12.8
hereof or amends the maximum dollar amount in Section 12.11(a)(i) hereof shall be effective unless
the same shall be in writing and signed by Administrative Agent, each of the Lenders and Borrower.
No amendment, modification, termination or waiver of or consent with respect to any provision of
this Agreement that waives compliance with the conditions precedent set forth in Section
4.2 to the making of any Revolving Loan or the incurrence of any Letter of Credit Accommodation
shall be effective unless the same shall be in writing and signed by Administrative Agent, Required
Lenders and Borrower. Notwithstanding anything contained in this Agreement to the contrary, no
waiver or consent with respect to any Event of Default shall be effective for purposes of the
conditions precedent to the making of Revolving Loans or the incurrence of Letter of Credit
Accommodations set forth in Section 4.2 unless the same shall be in writing and signed by
Administrative Agent, Required Lenders and Borrower.




          (c) No amendment, modification, termination or waiver shall, unless in writing and signed by
Administrative Agent and each Lender directly affected thereby: (i) increase the principal amount
of such Lender’s Commitment over the amount then in effect; (ii) reduce the principal of, rate of
interest on or fees payable with respect to any Loan or Letter of Credit Accommodations of any
affected Lender; (iii) extend any scheduled payment date or final maturity date of the principal
amount of any Loan of any affected Lender; (iv) waive, forgive, defer, extend or postpone any
payment of interest or fees as to any affected Lender; (v) release any Obligor except as otherwise
permitted herein (which action shall be deemed to directly affect all Lenders); (vi) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the Loans that shall
be required for Lenders or any of them to take any action hereunder (which action shall be deemed
to directly effect all Lenders); (vii) amend or waive this Section 11.3 or the definition
of the term “Required Lenders” insofar as such definition affects the substance of this
Section 11.3; or (viii) permit the assignment or transfer by Borrower of any of its right
and obligations hereunder (which action shall be deemed to directly affect all Lenders).




          (d) No amendment, modification, termination or waiver shall, unless otherwise permitted by
this Agreement or unless consented to in writing and signed by Administrative Agent and all
Lenders, (i) release, or permit Borrower or any Obligor to sell or otherwise dispose of, all or
substantially all of the Collateral, or release any Obligor from any guaranty of any or all of the
Obligations or (ii) amend Section 6.4(a) hereof.




          (e) Agents and Lenders shall not, by any act, delay, omission or otherwise be deemed to have
expressly or impliedly waived any of its or their rights, powers and/or remedies unless such waiver
shall be in writing and signed as provided herein. Any such waiver shall be enforceable only to
the extent specifically set forth therein. A waiver by any Agent or any Lender of any right, power
and/or remedy on any one occasion shall not be construed as a bar to or waiver of any such right,
power and/or remedy which any Agent or any Lender would otherwise have on any future occasion,
whether similar in kind or otherwise.





79












 





          (f) The consent of each Agent shall be required for any amendment, waiver or consent
affecting the rights or duties of such Agent hereunder or under any of the other Financing
Agreements, in addition to the consent of the Lenders otherwise required by this Section.




          (g) The consent of Swing Line Lender shall be required for any amendment, waiver or consent
affecting the rights or duties of the Swing Line Lender in its capacity as such.




          11.4. Waiver of Counterclaims.




     Borrower waives all rights to interpose any claims, deductions, setoffs or counterclaims of
any nature (other then compulsory counterclaims) in any action or proceeding with respect to this
Agreement, the Obligations, the Collateral or any matter arising therefrom or relating hereto or
thereto.



          11.5. Indemnification.




     Borrower shall indemnify and hold each Agent and each Lender, and their respective directors,
agents, employees and counsel, harmless from and against any and all losses, claims, damages,
liabilities, costs or expenses imposed on, incurred by or asserted against any of them in
connection with any litigation, investigation, claim or proceeding commenced or threatened related
to the negotiation, preparation, execution, delivery, enforcement, performance or administration of
this Agreement, any other Financing Agreements, or any undertaking or proceeding related to any of
the transactions contemplated hereby or any act, omission, event or transaction related or
attendant thereto, including amounts paid in settlement, court costs, and the fees and expenses of
counsel except for any such losses, claims, liabilities, costs or expenses resulting from the gross
negligence or willful misconduct of any Agent or any Lender as determined pursuant to a final
non-appealable order of a court of competent jurisdiction. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in this Section may be unenforceable because it violates
any law or public policy, Borrower shall pay the maximum portion which it is permitted to pay under
applicable law to Agents and Lenders in satisfaction of indemnified matters under this Section.
The foregoing indemnity shall survive the payment of the Obligations and the termination of this
Agreement.



SECTION 12. THE AGENTS




          12.1. Appointment, Powers and Immunities.




     Each Lender (including any Lender in its capacity as a counterparty to a Hedging Agreement)
irrevocably designates, appoints and authorizes Wells Fargo to act as both Administrative Agent and
Collateral Agent, hereunder and under the other Financing Agreements with such powers as are
specifically delegated to Administrative Agent and Collateral Agent, respectively by the terms of
this Agreement and of the other Financing Agreements, together with such other powers as are
reasonably incidental thereto. Agents (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Financing Agreements, and shall not by
reason of this Agreement or any other Financing Agreement be a trustee or fiduciary for any Lender
(including any Lender in its capacity as a counterparty to a Hedging Agreement or provider of Bank
Products and Cash



80









 




Management Services); (b) shall not be responsible to Lenders (including any Lender in its
capacity as a counterparty to a Hedging Agreement or provider of Bank Products and Cash Management
Services) for any recitals, statements, representations or warranties contained in this Agreement
or in any of the other Financing Agreements, or in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or any other Financing Agreement,
or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Financing Agreement or any other document referred to or provided for herein
or therein or for any failure by Borrower or any Obligor or any other Person to perform any of its
obligations hereunder or thereunder; and (c) shall not be responsible to Lenders (including any
Lender in its capacity as a counterparty to a Hedging Agreement or provider of Bank Products and
Cash Management Services) for any action taken or omitted to be taken by it hereunder or under any
other Financing Agreement or under any other document or instrument referred to or provided for
herein or therein or in connection herewith or therewith, except for its own gross negligence or
willful misconduct as determined by a final non-appealable judgment of a court of competent
jurisdiction. Each Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
Agents may deem and treat the payee of any note as the holder thereof for all purposes hereof
unless and until the assignment thereof pursuant to an agreement (if and to the extent permitted
herein) in form and substance satisfactory to Agents shall have been delivered to and acknowledged
by Agents.




          12.2. Reliance by Agents.




     Each Agent shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopy, telex, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent accountants and other experts
selected by such Agent. As to any matters not expressly provided for by this Agreement or any
other Financing Agreement, each Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions given by the
Required Lenders or all Lenders as is required in such circumstance, and such instructions of such
Agent and any action taken or failure to act pursuant thereto shall be binding on all Lenders.



          12.3. Events of Default.




          (a) Agents shall not be deemed to have knowledge or notice of the occurrence of an Event of
Default or other failure of a condition precedent to the Loans and Letter of Credit Accommodations
hereunder, unless and until the respective Agent has received written notice from a Lender, or
Borrower specifying such Event of Default or any unfulfilled condition precedent, and stating that
such notice is a “Notice of Default or Failure of Condition”. In the event that
Administrative Agent receives such a Notice of Default or Failure of Condition, Administrative
Agent shall give prompt notice thereof to the Lenders. Each Agent shall (subject to Section 12.7)
take such action with respect to any such Event of Default or failure of condition precedent as
shall be directed by the Required Lenders. Notwithstanding the existence or occurrence and
continuance of an Event of Default or any other failure to satisfy any of the conditions precedent
set forth in Section 4 of this Agreement to the contrary, Administrative Agent may, but shall have
no obligation to, continue to make Revolving Loans and issue or





81









 







cause to be issued Letter of Credit Accommodations for the ratable account and risk of Lenders
from time to time if Administrative Agent believes making such Revolving Loans or issuing or
causing to be issued such Letter of Credit Accommodations is in the best interests of Lenders.




          (b) Except with the prior written consent of Administrative Agent, neither Collateral Agent
nor any Lender (including any Lender in its capacity as a counterparty to a Hedging Agreement) may
assert or exercise any enforcement right or remedy in respect of the Loans, Letter of Credit
Accommodations or other Obligations, as against Borrower or any Obligor or any of the Collateral or
other property of Borrower or any Obligor.




          12.4. Wells Fargo in its Individual Capacity.




     With respect to any Commitment it may make and any Loans made and Letter of Credit
Accommodations issued or caused to be issued by it (and any successor acting as an Agent), if and
to the extent that Wells Fargo shall be a Lender hereunder, it shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were not acting as an
Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise
indicates, include Wells Fargo in its individual capacity as Lender hereunder. Wells Fargo (and any
successor acting as Administrative Agent or Collateral Agent, respectively) and its Affiliates may
(without having to account therefore to any Lender) lend money to, make investments in and
generally engage in any kind of business with Borrower (and any of its Subsidiaries or Affiliates)
as if it were not acting as an Agent, and Wells Fargo and its Affiliates may accept fees and other
consideration from Borrower and any of its Subsidiaries and Affiliates for services in connection
with this Agreement or otherwise without having to account for the same to Lenders.



          12.5. Indemnification.




     Lenders (including any Lender in its capacity as a counterparty to a Hedging Agreement or
provider of Bank Products and Cash Management Services) agree to indemnify Agents (to the extent
not reimbursed by Borrower hereunder and without limiting any obligations of Borrower hereunder)
ratably, in accordance with their Pro Rata Shares, for any and all claims of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against any Agent (including by any
Lender (including any Lender in its capacity as a counterparty to a Hedging Agreement or provider
of Bank Products and Cash Management Services)) arising out of or by reason of any investigation in
or in any way relating to or arising out of this Agreement, any Hedging Agreement, any Bank
Product, any Cash Management Services, or any other Financing Agreement or any other documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby
(including the costs and expenses that each Agent is obligated to pay hereunder) or the enforcement
of any of the terms hereof or thereof or of any such other documents, provided, that, no Lender
(including any Lender in its capacity as a counterparty to a Hedging Agreement or provider of Bank
Products and Cash Management Services) shall be liable for any of the foregoing to the extent it
arises from the gross negligence or willful misconduct of the party to be indemnified as determined
by a final non-appealable judgment of a court of competent jurisdiction, and further provided that
if no Event of Default has occurred, the Lenders shall not be obligated to reimburse the Agents for
any costs incurred in connection with field examinations under Section 7.6 hereof in excess of
$15,000 in any year.



82









 





          12.6. Non-Reliance on Agents and Other Lenders.




     Each Lender (including any Lender in its capacity as a counterparty to a Hedging Agreement or
provider of Bank Products and Cash Management Services) agrees that it has, independently and
without reliance on any Agent or other Lenders, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of Borrower and Obligors and has made its own
decision to enter into this Agreement and that it will, independently and without reliance upon any
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 analysis and decisions in taking or not taking action under
this Agreement or any of the other Financing Agreements. Neither Agent shall be required to keep
itself informed as to the performance or observance by Borrower or any Obligor of any term or
provision of this Agreement or any of the other Financing Agreements or any other document referred
to or provided for herein or therein or to inspect the properties or books of Borrower or any
Obligor. Administrative Agent will use reasonable efforts to provide Lenders with any information
received by Administrative Agent from Borrower or any Obligor regarding its financial performance
or the Collateral (including the collateral reports identified in Section 7.1 and the financial
information delivered by the Borrower hereunder) or which is otherwise required to be provided to
Lenders hereunder and with a copy of any Notice of Default or Failure of Condition received by
Administrative Agent from Borrower or any Lender; provided, that, Administrative Agent shall not be
liable to any Lender for any failure to do so, except to the extent that such failure is
attributable to Administrative Agent’s own gross negligence or willful misconduct as determined by
a final non-appealable judgment of a court of competent jurisdiction.



          12.7. Failure to Act.




     Except for action expressly required of Agents hereunder and under the other Financing
Agreements, each Agent shall in all cases be fully justified in failing or refusing to act
hereunder and thereunder unless it shall receive further assurances to its satisfaction from
Lenders (including any Lender in its capacity as a counterparty to a Hedging Agreement or provider
of Bank Products and Cash Management Services) of their indemnification obligations under Section
12.5 hereof against any and all liability and expense that may be incurred by it by reason of
taking or continuing to take any such action.



          12.8. Additional Loans.




     Administrative Agent shall not make any Revolving Loans or provide any Letter of Credit
Accommodations to Borrower on behalf of Lenders intentionally and with actual knowledge that such
Revolving Loans or Letter of Credit Accommodations would cause the aggregate amount of the total
outstanding Revolving Loans and Letter of Credit Accommodations to Borrower to exceed the amount of
the Loans available to Borrower as of such time based on the lending formulas set forth in Section
2.1(a), without the prior consent of all Lenders, except, that, Administrative Agent may make such
additional Revolving Loans or provide such additional Letter of Credit Accommodations on behalf of
Lenders, intentionally and with actual knowledge that such Loans or Letter of Credit Accommodations
will cause the total outstanding Revolving Loans and Letter of Credit Accommodations to Borrower to
exceed the amount of the Loans available to Borrower as of such time based on the lending formulas
set



83









 




forth in Section 2.1(a), as Administrative Agent may deem necessary or advisable in its
discretion, provided, that: (a) the total principal amount of the additional Revolving Loans or
additional Letter of Credit Accommodations to Borrower which Administrative Agent may make or
provide after obtaining such actual knowledge that the aggregate principal amount of the Revolving
Loans equal or exceed the amount of the Loans available to Borrower as of such time based on the
lending formulas set forth in Section 2.1.(a) shall not exceed the amount equal to $10,000,000
outstanding at any time less the then outstanding amount of any Special Agent Advances and shall
not cause the total principal amount of the Revolving Loans and Letter of Credit Accommodations to
exceed the Maximum Credit and (b) without the consent of all Lenders, Administrative Agent shall
not make any such additional Revolving Loans or Letter of Credit Accommodations more than sixty
(60) days from the date of the first such additional Revolving Loans or Letter of Credit
Accommodations. Each Lender shall be obligated to pay Administrative Agent the amount of its Pro
Rata Share of any such additional Revolving Loans or Letter of Credit Accommodations provided that
Administrative Agent is acting in accordance with the terms of this Section 12.8.




          12.9. Concerning the Collateral and the Related Financing Agreements.




     Each Lender (including any Lender in its capacity as a counterparty to a Hedging Agreement or
provider of Bank Products and Cash Management Services) authorizes and directs Agents to enter into
this Agreement and the other Financing Agreements. Each Lender (including any Lender in its
capacity as a counterparty to a Hedging Agreement or provider of Bank Products and Cash Management
Services) agrees that any action taken by any Agent or Required Lenders or all Lenders in
accordance with the terms of this Agreement or the other Financing Agreements and the exercise by
any Agent or any category of Lenders of their respective powers set forth therein or herein,
together with such other powers that are reasonably incidental thereto, shall be binding upon all
of the Lenders (including any Lender in its capacity as a counterparty to a Hedging Agreement or
provider of Bank Products and Cash Management Services).



          12.10. Field Audit, Examination Reports and other Information; Disclaimer by Lenders.




     By signing this Agreement, each Lender:



          (a) is deemed to have requested that Collateral Agent furnish such Lender, promptly after it
becomes available, a copy of each field audit or examination report and a weekly report with
respect to the amount of the Loans available to Borrower as of such time based on the lending
formulas set forth in Section 2.1.(a) prepared by Collateral Agent (each field audit or examination
report and weekly report with respect to the amount of the Loans available to Borrower as of such
time based on the lending formulas set forth in Section 2.1.(a) being referred to herein as a
“Report” and collectively, “Reports”) and Borrower hereby consents to the
distribution of such Reports;




          (b) expressly agrees and acknowledges that Collateral Agent (A) does not make any
representation or warranty as to the accuracy of any Report, or (B) shall not be liable for any
information contained in any Report;






84









 








          (c) expressly agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that Collateral Agent or any other party performing any audit or examination will
inspect only specific information regarding Borrower and the Subsidiaries and will rely
significantly upon Borrower’s and the Subsidiaries’ books and records, as well as on
representations of Borrower’s and the Subsidiaries’ personnel; and




          (d) agrees to keep all Reports confidential and strictly for its internal use and not to
distribute or use any Report in any other manner.




          12.11. Collateral Matters.




          (a) Administrative Agent may, at its option, from time to time, at any time on or after an
Event of Default and for so long as the same is continuing or upon any other failure of a condition
precedent to the Revolving Loans and Letter of Credit Accommodations hereunder, make such
disbursements and advances (“Special Agent Advances”) which Administrative Agent, in its
sole discretion, deems necessary or desirable either (i) to preserve or protect the Collateral or
any portion thereof (provided that in no event shall Special Agent Advances for such purpose exceed
the amount equal to $10,000,000 in the aggregate outstanding at any time less the then outstanding
Revolving Loans under Section 12.8 hereof) or (ii) to pay any other amount chargeable to Borrower
pursuant to the terms of this Agreement or any of the other Financing Agreements consisting of
costs, fees and expenses and payments to any LC Issuer of Letter of Credit Accommodations. Special
Agent Advances shall be repayable on demand, shall bear interest at the Interest Rate for Prime
Rate Loans in effect after the occurrence of an Event of Default, and be secured by the Collateral.
Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations
hereunder. Administrative Agent shall notify each Lender and Borrower in writing of each such
Special Agent Advance, which notice shall include a description of the purpose of such Special
Agent Advance. Without limitation of its obligations pursuant to Section 6.9, each Lender agrees
that it shall make available to Administrative Agent, upon Administrative Agent’s demand, in
immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special
Agent Advance. If such funds are not made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such funds, on demand from such Lender together
with interest thereon for each day from the date such payment was due until the date such amount is
paid to Administrative Agent at the Federal Funds Rate for each day during such period and if such
amounts are not paid within three (3) days of Administrative Agent’s demand, at the highest
Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.




          (b) Lenders (including any Lender in its capacity as a counterparty to a Hedging Agreement or
provider of Bank Products and Cash Management Services) hereby irrevocably authorize Collateral
Agent, to release any security interest in, mortgage or lien upon, any of the Collateral (i) upon
termination of the Commitments and payment and satisfaction of all of the Obligations and delivery
of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property
being sold or disposed of if Borrower certifies to Collateral Agent that the sale or disposition is
made in compliance with Section 9.7 or 9.16 hereof (and Collateral Agent may rely conclusively on
any such certificate, without further inquiry), or (iii) constituting property in which Borrower or
any Obligor did not own an interest at the time the security interest, mortgage or lien was granted
or at any time thereafter, or (iv) if approved, authorized or





85









 







ratified in writing by the applicable Lenders pursuant to Section 11.3 hereof. Except as
provided above, Collateral Agent will not release any security interest in, mortgage or lien upon,
any of the Collateral without the prior written authorization of the applicable Lenders pursuant to
Section 11.3 hereof.




          (c) Without any manner limiting Collateral Agent’s authority to act without any specific or
further authorization or consent by the Lenders (including any Lender in its capacity as a
counterparty to a Hedging Agreement or provider of Bank Products and Cash Management Services),
each Lender (including any Lender in its capacity as a counterparty to a Hedging Agreement or
provider of Bank Products and Cash Management Services) agrees to confirm in writing, upon request
by Collateral Agent, the authority to release Collateral conferred upon Collateral Agent under this
Section and in Section 11.3(d) hereof. Collateral Agent shall (and is hereby irrevocably
authorized by Lenders to) execute such documents as may be necessary to evidence the release of the
security interest, mortgage or liens granted to Collateral Agent upon any Collateral to the extent
set forth above and in Section 11.3(d) hereof; provided, that, (i) Collateral Agent
shall not be required to execute any such document on terms which, in either Agent’s opinion, would
expose Collateral Agent to liability or create any obligations or entail any consequence other than
the release of such security interest, mortgage or liens without recourse or warranty and (ii) such
release shall not in any manner discharge, affect or impair the Obligations or any security
interest, mortgage or lien upon (or obligations of Borrower or any Obligor in respect of) the
Collateral retained by Borrower or such Obligor.




          (d) No Agent shall have any obligation whatsoever to any Lender (including any Lender in its
capacity as a counterparty to a Hedging Agreement or provider of Bank Products and Cash Management
Services) or any other Person to investigate, confirm or assure that the Collateral exists or is
owned by Borrower or any Obligor or is cared for, protected or insured or has been encumbered, or
that any particular items of Collateral meet the eligibility criteria applicable in respect of the
Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are
appropriate, or that the liens and security interests granted to Collateral Agent pursuant hereto
or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully
created, perfected, protected or enforced or are entitled to any particular priority, or to
exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or
to continue exercising, any of the rights, authorities and powers granted or available to
Collateral Agent in this Agreement or in any of the other Financing Agreements, it being understood
and agreed that in respect of the Collateral, or any act, omission or event related thereto,
subject to the prior consent of Administrative Agent, Collateral Agent may act in any manner it may
deem appropriate, in its discretion, given Collateral Agent’s own interest in the Collateral as a
Lender and that, subject to acting in accordance with the consent of Administrative Agent,
Collateral Agent shall have no duty or liability whatsoever to any other Lender.




          12.12. Agency for Perfection.




     Each Lender (including any Lender in its capacity as a counterparty to a Hedging Agreement)
and Administrative Agent hereby appoints Collateral Agent and each other Lender (including any
Lender in its capacity as a counterparty to a Hedging Agreement) and Agent as agent and bailee for
the purpose of perfecting the security interests in and liens upon the



86









 




Collateral of Collateral Agent in assets which, in accordance with Article 9 of the UCC can be
perfected only by possession (or where the security interest of a secured party with possession has
priority over the security interest of another secured party) and each Lender (including any Lender
in its capacity as a counterparty to a Hedging Agreement or provider of Bank Products and Cash
Management Services) and Agent hereby acknowledges that it holds possession of any such Collateral
for the benefit of Collateral Agent as secured party. Should any Lender (including any Lender in
its capacity as a counterparty to a Hedging Agreement or provider of Bank Products and Cash
Management Services) obtain possession of any such Collateral, such Lender (including any Lender in
its capacity as a counterparty to a Hedging Agreement or provider of Bank Products and Cash
Management Services) shall notify Collateral Agent thereof, and, promptly upon Collateral Agent’s
request therefor shall deliver such Collateral to Collateral Agent or in accordance with Collateral
Agent’s instructions.




          12.13. Successor Agent.




     Either Agent may resign at any time by giving not less than 30 days’ prior written notice
thereof to Lenders and Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the prior consent of each other Agent, to appoint a successor Administrative Agent or
Collateral Agent, as applicable. If no successor Agent shall have been so appointed by the
Required Lenders and other Agents and shall have accepted such appointment within 30 days after the
resigning Agent’s giving notice of resignation, then the resigning Agent may, on behalf of Lenders
(including any Lender in its capacity as a counterparty to a Hedging Agreement), appoint a
successor Agent, which shall be a Lender, if a Lender is willing to accept such appointment, or
otherwise shall be a commercial bank or financial institution or a subsidiary of a commercial bank
or financial institution if such commercial bank or financial institution is organized under the
laws of the United States of America or of any State thereof and has a combined capital and surplus
of at least $500,000,000. If no successor Agent has been appointed pursuant to the foregoing,
within 30 days after the date such notice of resignation was given by the resigning Agent, such
resignation shall become effective and the Required Lenders shall thereafter perform all the duties
of such resigning Agent hereunder until such time, if any, as the Required Lenders appoint a
successor Agent as provided above. Any successor Agent appointed by Required Lenders and Agents
hereunder shall be subject to the approval of Borrower, such approval not to be unreasonably
withheld or delayed; provided that such approval shall not be required if an Event of Default has
occurred and is continuing. Upon the acceptance of any appointment as Administrative Agent or
Collateral Agent, as applicable, hereunder by a successor Agent, such successor Agent shall succeed
to and become vested with all the rights, powers, privileges and duties of the resigning Agent.
Upon the earlier of the acceptance of any appointment as Agent hereunder by a successor Agent or
the effective date of the resigning Agent’s resignation, the resigning Agent shall be discharged
from its duties and obligations under this Agreement and the other Financing Agreements, except
that any indemnity rights or other rights in favor of such resigning Agent shall continue. After
any resigning Agent’s resignation hereunder, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was acting as Agent under
this Agreement and the other Financing Agreements.



          12.14. Hedging Agreements; Bank Products; Cash Management Services.






87









 








     Each Lender agrees that in its capacity as a counterparty to a Hedging Agreement with Borrower
or as the provider of any Bank Products or Cash Management Services to the Borrower, it shall not
be deemed to have any rights as a Lender hereunder except for the right to receive proceeds of
Collateral, as a counterparty to a Hedging Agreement, or provider of Bank Products and Cash
Management Services in the order and manner set forth in Section 6.4(a) hereof. Each Lender
further agrees that Administrative Agent shall have no duties to a Lender hereunder in its capacity
as a counterparty to a Hedging Agreement, or as a provider of Bank Products or Cash Management
Services, other than in respect of such Lender’s entitlements to proceeds of Collateral, as a
counterparty to a Hedging Agreement or provider of Bank Products and Cash Management Services, in
the order and manner set forth in Section 6.4(a) hereof. Nothing in this Section 12.14 is intended
to diminish or otherwise alter any Lender’s rights, or either Agent’s duties to such Lender, under
this Agreement as to Lender in its capacity as a Lender hereunder.



          12.15. Defaulting Lender.




          (a) If for any reason any Lender shall fail or refuse to abide by its obligations under this
Agreement, including without limitation its obligation to make available to Administrative Agent
its Pro Rata Share of any Loans, expenses or setoff or purchase its Pro Rata Share of a
participation interest in the Swing Line Loans or Letter of Credit Accommodations and such failure
is not cured within one (1) Business Day after receipt from the Administrative Agent of written
notice thereof, then, in addition to the rights and remedies that may be available to the Agents,
the other Lenders, the Borrower or any other party at law or in equity, and not at limitation
thereof, (i) such Defaulting Lender’s right to participate in the administration of, or
decision-making rights related to, the Obligations, this Agreement or the other Financing
Agreements shall be suspended during the pendency of such failure or refusal, and such Defaulting
Lender shall not be entitled to vote or consent on any matter pursuant to Section 11.3 and its
Loans and Commitments shall be excluded from the calculation of Required Lenders, and (ii) a
Defaulting Lender shall be deemed to have assigned any and all payments due to it from the Borrower
and Obligors, whether on account of outstanding Loans, interest, fees or otherwise, to the
remaining non-Defaulting Lenders for application to, and reduction of, their proportionate shares
of all outstanding Obligations until, as a result of application of such assigned payments the
Lenders’ respective Pro Rata Shares of all outstanding Obligations shall have returned to those in
effect immediately prior to such delinquency and without giving effect to the nonpayment causing
such delinquency, and/or (iii) at the option of the Administrative Agent, any amount payable to
such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise)
shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative
Agent as cash collateral for future funding obligations of the Defaulting Lender in respect of any
Loan or existing or future participating interest in any Swing Line Loan or Letter of Credit
Accommodation. The Defaulting Lender’s decision-making and participation rights and rights to
payments as set forth in clauses (i) and (ii) hereinabove shall be restored only upon the payment
by the Defaulting Lender of its Pro Rata Share of any Obligations, any participation obligation, or
expenses as to which it is delinquent, together with interest thereon at the Federal Funds Rate
from the date when originally due until the date upon which any such amounts are actually paid.






88









 








          (b) The non-Defaulting Lenders shall also have the right, but not the obligation, in their
respective, sole and absolute discretion, to cause the termination and assignment, without any
further action by the Defaulting Lender for no cash consideration (pro rata, based
on the respective Commitments of those Lenders electing to exercise such right), of the Defaulting
Lender’s Commitment to fund future Loans. Upon any such purchase of the Pro Rata Share of any
Defaulting Lender, the Defaulting Lender’s share in future Loans and Letter of Credit
Accommodations and its rights under the Financing Agreements with respect thereto shall terminate
on the date of purchase, and the Defaulting Lender shall promptly execute all documents reasonably
requested to surrender and transfer such interest, including, if so requested, an Assignment and
Acceptance. Any assignment of a Defaulting Lender’s Loans and/or Commitments shall be made in
accordance with Section 13.6.




          (c) If any Lender is a Deteriorating Lender or a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 13.6), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an Eligible Transferee that
shall assume such obligations (which Eligible Transferee may be another Lender, if a Lender accepts
such assignment), provided that: (i) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and Letter of Credit Accommodations owed to such
Lender, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents from the Eligible Transferee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (ii)
such assignment does not conflict with applicable law, and (iii) to the extent that such Eligible
Transferee is not a Lender, such assignment shall be subject to the written consent of the
Administrative Agent, which consent shall not be unreasonably withheld. A Lender shall not be
required to make any such assignment or delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and
delegation cease to apply.




          (d) Each Defaulting Lender shall indemnify the Administrative Agent and each non-Defaulting
Lender from and against any and all loss, damage or expenses, including but not limited to
reasonable attorneys’ fees and funds advanced by the Administrative Agent or by any non-Defaulting
Lender, on account of a Defaulting Lender’s failure to timely fund its Pro Rata Share of a Loan or
to otherwise perform its obligations under the Loan Documents.




          12.16. Other Agents; Arrangers and Managers.




     None of the Lenders or other Persons identified on the facing page or signature pages of this
Agreement as a “syndication agent,” “documentation agent,” “co-agent,” “book manager,” “lead
manager,” “arranger,” “lead arranger” or “co-arranger”, if any, shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.



89









 





SECTION 13. TERM OF AGREEMENT; MISCELLANEOUS




          13.1. Term.




          (a) This Agreement and the other Financing Agreements shall become effective as of the date
set forth on the first page hereof and shall continue in full force and effect for a term ending on
May 31, 2013 (the “Termination Date”), unless sooner terminated pursuant to the terms
hereof. Borrower may terminate this Agreement at any time upon ten (10) days prior written notice
to Administrative Agent (which notice shall be irrevocable) and Administrative Agent or Required
Lenders may terminate this Agreement at any time on or after an Event of Default. Upon the
effective date of termination of this Agreement, Borrower shall pay to Administrative Agent, in
full, all outstanding and unpaid Obligations and shall furnish cash collateral to Administrative
Agent in such amounts as Administrative Agent determines are reasonably necessary to secure (or
reimburse) Administrative Agent from loss, cost, damage or expense, including attorneys’ fees and
legal expenses, in connection with any contingent Obligations, including issued and outstanding
Letter of Credit Accommodations and checks or other payments provisionally credited to the
Obligations, outstanding Bank Products, Hedging Agreements and Cash Management Services, and/or as
to which any Agent or any Lender has not yet received final and indefeasible payment. Such
payments in respect of the Obligations and cash collateral shall be remitted by wire transfer in
Federal funds to such bank account of Administrative Agent, as Administrative Agent may, in its
discretion, designate in writing to Borrower for such purpose. Interest shall be due until and
including the next Business Day, if the amounts so paid by Borrower to the bank account designated
by Administrative Agent are received in such bank account later than 2:00 P.M. or as may be
otherwise permitted by the Administrative Agent at its sole discretion.




          (b) No termination of this Agreement or the other Financing Agreements shall relieve or
discharge Borrower of its respective duties, obligations and covenants under this Agreement or the
other Financing Agreements until all Obligations have been fully and finally discharged and paid,
and Collateral Agent’s continuing security interest in the Collateral and the rights and remedies
of Agents and the Lenders hereunder, under the other Financing Agreements and applicable law, shall
remain in effect until all such Obligations have been fully and finally discharged and paid.




          13.2. Interpretative Provisions.




          (a) All terms used herein which are defined in Article 1 or Article 9 of the UCC shall have
the meanings given therein unless otherwise defined in this Agreement.




          (b) All references to the plural herein shall also mean the singular and to the singular shall
also mean the plural unless the context otherwise requires.




          (c) All references to Borrower, Agents and Lenders pursuant to the definitions set forth in
the recitals hereto, or to any other person herein, shall include their respective successors and
assigns.




          (d) The words “hereof”, “herein”, “hereunder”, “this Agreement” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not any





90









 







particular provision of this Agreement and as this Agreement now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.




          (e) The word “including” when used in this Agreement shall mean “including, without
limitation”.




          (f) All references to the term “good faith” used herein when applicable to either Agent shall
mean, notwithstanding anything to the contrary contained herein or in the UCC, honesty in fact in
the conduct or transaction concerned. Borrower shall have the burden of proving any lack of good
faith on the part of such Agent alleged by Borrower at any time.




          (g) An Event of Default shall exist or continue or be continuing until such Event of Default
is waived in accordance with Section 11.3 or is cured in a manner reasonably satisfactory to
Administrative Agent, if such Event of Default is capable of being cured as reasonably determined
by Administrative Agent.




          (h) Any accounting term used in this Agreement shall have, unless otherwise specifically
provided herein, the meaning customarily given in accordance with GAAP, and all financial
computations hereunder shall be computed unless otherwise specifically provided herein, in
accordance with GAAP as consistently applied and using the same method for inventory valuation as
used in the preparation of the financial statements of Borrower most recently received by
Administrative Agent prior to the date hereof.




          (i) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including”, the words “to” and “until” each mean “to but excluding” and
the word “through” means “to and including”.




          (j) Unless otherwise expressly provided herein, (i) references herein to any agreement,
document or instrument shall be deemed to include all subsequent amendments, modifications,
supplements, extensions, renewals, restatements or replacements with respect thereto, but only to
the extent the same are not prohibited by the terms hereof or of any other Financing Agreement, and
(ii) references to any statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, recodifying, supplementing or
interpreting the statute or regulation.




          (k) Unless otherwise specified, all references herein to times of day shall be references
to Central time (daylight or standard, as applicable).




          (l) The captions and headings of this Agreement are for convenience of reference only and
shall not affect the interpretation of this Agreement.




          (m) This Agreement and other Financing Agreements may use several different limitations, tests
or measurements to regulate the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in accordance with their terms.




          (n) This Agreement and the other Financing Agreements are the result of negotiations among and
have been reviewed by counsel to Administrative Agent and the other





91









 







parties, and are the products of all parties. Accordingly, this Agreement and the other
Financing Agreements shall not be construed against Agents or Lenders merely because of either
Agent’s or any Lender’s involvement in their preparation.




          13.3. Notices.




     All notices, requests and demands hereunder shall be in writing and deemed to have been given
or made: if delivered in person, immediately upon delivery; if by telex, telegram or facsimile
transmission, immediately upon sending and upon confirmation of receipt; if by nationally
recognized overnight courier service with instructions to deliver the next Business Day, one (1)
Business Day after sending; and if by certified mail, return receipt requested, five (5) days after
mailing. All notices, requests and demands upon the parties are to be given to the following
addresses (or to such other address as any party may designate by notice in accordance with this
Section):



	 	 	 

	If to Borrower:

	 	Ulta Salon, Cosmetics & Fragrance, Inc.
	 

	 	Suite 120
	 

	 	1000 Remington Blvd.
	 

	 	Bolingbrook, IL 60440-4708
	 

	 	Attention: Gregg Bodnar
	 

	 	Telephone No.: (630) 410-4633
	 

	 	Telecopy No.: (630) 410-4864
	 
	 	 
	with a copy, in the

	 	Latham & Watkins
	case of a Default or

	 	Suite 5800
	Event of Default, to:

	 	233 S. Wacker Drive
	 

	 	Chicago, Illinois 60606
	 

	 	Attention: Donald L. Schwartz
	 

	 	Telephone No.: (312) 876-7700
	 

	 	Telecopy No.: (312) 993-9767
	 
	 	 
	If to Administrative Agent or

	 	Wells Fargo Bank, National Association
	the Collateral Agent:

	 	One Boston Place
	 

	 	Boston, Massachusetts 02109
	 

	 	Attention: Jason Searle
	 

	 	Telephone No.: (617) 854-7292
	 

	 	Telecopy No.: (617) 523-4029
	 
	 	 
	with a copy to:

	 	Riemer & Braunstein, LLP
	 

	 	Three Center Plaza
	 

	 	Boston, Massachusetts 02108
	 

	 	Attention: Jennifer Conway Fenn
	 

	 	Telephone No.: (617) 880-3408
	 

	 	Telecopy No.: (617) 880-3456






          Notices and other communications to the Lenders and the LC Issuer hereunder may also be
delivered or furnished by electronic communication (including e-mail and Internet





92









 







or intranet websites) pursuant to procedures approved by the Administrative Agent. The
Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or
communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business Day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




          13.4. Partial Invalidity.




     If any provision of this Agreement is held to be invalid or unenforceable, such invalidity or
unenforceability shall not invalidate this Agreement as a whole, but this Agreement shall be
construed as though it did not contain the particular provision held to be invalid or unenforceable
and the rights and obligations of the parties shall be construed and enforced only to such extent
as shall be permitted by applicable law.



          13.5. Successors.




     This Agreement, the other Financing Agreements and any other document referred to herein or
therein shall be binding upon and inure to the benefit of and be enforceable by Agents, Lenders,
Borrower and their respective successors and assigns, except that Borrower may not assign its
rights under this Agreement, the other Financing Agreements and any other document referred to
herein or therein without the prior written consent of Agents and Lenders. Any such purported
assignment without the prior written consent shall be void. No Lender may assign its rights and
obligations under this Agreement without the prior written consent of Administrative Agent, except
as provided in Section 13.6 below. The terms and provisions of this Agreement and the other
Financing Agreements are for the purpose of defining the relative rights and obligations of
Borrower, Agents and Lenders with respect to the transactions contemplated hereby and there shall
be no third party beneficiaries of any of the terms and provisions of this Agreement or any of the
other Financing Agreements.



          13.6. Assignments; Participations.




          (a) Each Lender may (i) assign all or a portion of its rights and obligations under this
Agreement (including, without limitation, a portion of its Commitments, the Loans owing to it and
its rights and obligations as a Lender with respect to Letter of Credit Accommodations) and the
other Financing Agreements to (A) its parent company and/or any Affiliate of such Lender which is
at least fifty (50%) percent owned by such Lender or its parent company or (B) one or more Lenders
or (C) any person (whether a corporation, partnership, trust or otherwise) that is engaged in the
business of making, purchasing, holding or otherwise investing in bank





93









 







loans and similar extensions of credit in the ordinary course of its business and is
administered or managed by a Lender or with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor or (ii) assign all or a portion of its rights and obligations
under this Agreement to one or more Eligible Transferees, each of which assignees shall become a
party to this Agreement as a Lender by execution of an Assignment and Acceptance; provided,
that, (A) the consent of Administrative Agent shall be required in connection with any
assignment to an Eligible Transferee pursuant to clause (ii) above, which consent shall not be
unreasonably withheld, (B) absent the existence of an Event of Default, the consent of Borrower
shall be required in connection with any assignment to an Eligible Transferee pursuant to clause
(ii) above, which consent shall not be unreasonably withheld; (C) if such Eligible Transferee is
not a bank, Administrative Agent shall receive a representation in writing by such Eligible
Transferee that either (1) no part of its acquisition of its Loans is made out of assets of any
employee benefit plan, or (2) after consultation, in good faith, with Borrower and provision by
Borrower of such information as may be reasonably requested by such Eligible Transferee, the
acquisition and holding of such Commitments and Loans does not constitute a non-exempt prohibited
transaction under Section 406 of ERISA and Section 4975 of the Code, or (3) such assignment is an
“insurance company general account,” as such term is defined in the Department of Labor Prohibited
Transaction Class Exemption 95.60 (issued July 12, 1995) (“PTCE 95-60), and, as of the date of the
assignment, there is no “employee benefit plan” with respect to which the aggregate amount of such
general account’s reserves and liabilities for the contracts held by or on behalf of such “employee
benefit plan” and all other “employee benefit plans” maintained by the same employer (and
affiliates thereof as defined in Section V(a)(1) of PTCE 95-60) or by the same employee
organization (in each case determined in accordance with the provisions of PTCE 95-60) exceeds ten
(10%) percent of the total reserves and liabilities of such general account (as determined under
PTCE 95-60) (exclusive of separate account liabilities) plus surplus as set forth in the National
Association of Insurance Commissioners Annual Statement filed with the state of domicile of such
Eligible Transferee, (D) such transfer or assignment will not be effective until recorded by the
Administrative Agent on the Register, (E) except as Administrative Agent shall otherwise agree, any
such assignment shall be in a minimum aggregate amount equal to $5,000,000 or, if less, the
remaining Commitment and Loans held by the assigning Lender. As used in this Section, the term
“employee benefit plan” shall have the meaning assigned to it in Title I of ERISA and shall also
include a “plan” as defined in Section 4975(e)(1) of the Code and (F) any Lender desiring to assign
all or any portion of its rights and obligations under this Agreement to a Person pursuant to
clause (ii) above shall first and prior to any assignment to such Person provide a written offer to
each of the other existing Lenders to accept such assignment, and each Lender who has received such
offer shall have the right, but no obligation, to accept such assignment, provided that, no
later than seven (7) days after receipt of such notice, each such Lender shall advise
Administrative Agent and the Borrower whether it intends to accept
 such assignment, and any Lender
that has not responded within such period shall be deemed to have declined such assignment and in
the event that more than one Lender accepts such assignment, the assigning Lender shall assign its
rights and obligations to such Lenders on a pro rata basis.




          (b) Administrative Agent shall maintain a register of the names and addresses of Lenders,
their Commitments and the principal amount of their Loans (the “Register”).





94









 







Administrative Agent shall also maintain a copy of each Assignment and Acceptance delivered to
and accepted by it and shall modify the Register to give effect to each Assignment and Acceptance.
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and Borrower, any Obligor, Agents and 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 Borrower and any Lender at any reasonable time and from time to time
upon reasonable prior notice.




          (c) Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto
and to the other Financing Agreements and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations
(including, without limitation, the obligation to participate in Letter of Credit Accommodations)
of a Lender hereunder and thereunder and (ii) the assigning Lender shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement. In the event that
any Lender assigns or otherwise transfers all or any part of the Obligations, Administrative Agent
shall so notify Borrower and Borrower shall, upon the request of the Administrative Agent, execute
new promissory notes in exchange for the promissory notes of such assigning Lender, if any.




          (d) By execution and delivery of an Assignment and Acceptance, the assignor and 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, the 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 any of the other Financing
Agreements or the execution, legality, enforceability, genuineness, sufficiency or value of this
Agreement or any of the other Financing Agreements furnished pursuant hereto, (ii) the assigning
Lender makes no representation or warranty and assumes no responsibility with respect to the
financial condition of Borrower, any Obligor or any of their Subsidiaries or the performance or
observance by Borrower or any Obligor of any of the Obligations; (iii) such assignee confirms that
it has received a copy of this Agreement and the other Financing Agreements, together with such
other documents and information 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 assigning Lender, Administrative Agent 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 and the other Financing Agreements, (v) such
assignee appoints and authorizes Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other Financing Agreements as are
delegated to Agents by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto, and (vi) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement and the other Financing
Agreements are required to be performed by it as a Lender. Agents and Lenders may furnish any
information concerning Borrower or any Obligor in the possession of either Agent or any Lender from
time to time to assignees and Participants.






95









 








          (e) Each Lender may sell participations to one or more banks or other entities in or to all or
a portion of its rights and obligations under this Agreement and the other Financing Agreements
(including, without limitation, all or a portion of its Commitments and the Loans owing to it and
its participation in the Letter of Credit Accommodations, without the consent of Administrative
Agent or the other Lenders); provided, that, (i) such Lender’s obligations under
this Agreement (including, without limitation, its Commitment hereunder) and the other Financing
Agreements shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and Borrower, and Administrative Agent
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement and the other Financing Agreements, (iii) the Participant
shall not have any rights under this Agreement or any of the other Financing Agreements (the
Participant’s rights against such Lender in respect of such participation (including rights in
connection with increased costs pursuant to Section 3.3 hereof) to be those set forth in the
agreement executed by such Lender in favor of the Participant relating thereto) and all amounts
payable by Borrower or any Obligor hereunder shall be determined as if such Lender had not sold
such participation; provided, that the Borrower shall not be required to reimburse any
Participant pursuant to the increased cost provisions of Section 3.3 in any amount which exceeds
the amount that would have been payable under such provisions to such Lender had such Lender not
sold such participation, (iv) absent the existence of an Event of Default, the consent of Borrower,
which consent shall not be unreasonably withheld, shall be required in connection with any
participation to an Eligible Transferee that does not consist of (A) any Lender’s parent company
and/or any Affiliate of such Lender which is at least fifty (50%) percent owned by such Lender or
its parent company or (B) one or more Lenders or (C) any person (whether a corporation,
partnership, trust or otherwise) that is engaged in the business of making, purchasing, holding or
otherwise investing in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor, and (v) if such Participant is not a bank, represent
that either (A) no part of its acquisition of its participation is made out of assets of any
employee benefit plan, or (B) after consultation, in good faith, with Borrower and provision by
Borrower of such information as may be reasonably requested by the Participant, the acquisition and
holding of such participation does not constitute a non-exempt prohibited transaction under Section
406 of ERISA and Section 4975 of the Code, or (C) such participation is an “insurance company
general account, “ as such term is defined in the “PTCE 95-60”, and, as of the date of the transfer
there is no “employee benefit plan” with respect to which the aggregate amount of such general
account’s reserves and liabilities for the contracts held by or on behalf of such “employee benefit
plan” and all other “employee benefit plans” maintained by the same employer (and affiliates
thereof as defined in Section V(a)(1) of PTCE 95-60) or by the same employee organization (in each
case determined in accordance with the provisions of PTCE 95-60) exceeds ten (10%) percent of the
total reserves and liabilities of such general account (as determined under PTCE 95-60) (exclusive
of separate account liabilities) plus surplus as set forth in the National Association of Insurance
Commissioners Annual Statement filed with the state of domicile of the Participant. As used in
this Section, the term “employee benefit plan” shall have the meaning assigned to it in Title I of
ERISA and shall also include a “plan” as defined in Section 4975(e)(1) of the Code.






96









 








          (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Note, if any) to secure obligations of such
Lender, including, without limitation, any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.




          (g) Borrower shall, and shall cause each of its Subsidiaries to, assist any Agent or any
Lender permitted to sell assignments or participations under this Section 13.6 in whatever manner
reasonably necessary in order to enable or effect any such assignment or participation, including
(but not limited to) the execution and delivery of any and all agreements, notes and other
documents and instruments as shall be requested and the delivery of informational materials,
appraisals or other documents for, and the participation of relevant management in meetings and
conference calls with, potential Lenders or Participants. Borrower shall certify the correctness,
completeness and accuracy, in all material respects, of all descriptions of Borrower and its
Subsidiaries and their affairs provided, prepared or reviewed by Borrower that are contained in any
selling materials and all other information provided by it and included in such materials.




          13.7. Confidentiality.




          (a) Each Agent and each Lender shall use all reasonable efforts to keep confidential, in
accordance with its respective customary procedures for handling confidential information and safe
and sound lending practices, any non-public information supplied to them by Borrower pursuant to
this Agreement which is clearly and conspicuously marked as confidential at the time such
information is furnished by Borrower to any Agent or any Lender, provided, that,
nothing contained herein shall limit the disclosure of any such information: (i) to the extent
required by statute, rule, regulation, subpoena or court order, (ii) to bank examiners and other
regulators, auditors and/or accountants, (iii) in connection with any litigation to which any Agent
or any Lender is a party, (iv) to any assignee or Participant (or prospective assignee or
Participant) so long as such assignee or Participant (or prospective assignee or Participant) shall
have first agreed in writing to treat such information as confidential in accordance with this
Section 13.7, (v) to any Affiliate, employee, director, officer or agent of such Agent or such
Lender so long as such Affiliate, employee, director, officer of agent shall have been instructed
to treat such information as confidential in accordance with this Section 13.7 or (vi) to counsel
for either Agent or any Lender or any Participant or assignee (or prospective participant or
assignee); provided, that, in the case of clause (i), such Agent or Lender,
as applicable, shall use reasonable efforts to provide Borrower with prior notice of such required
disclosure and the opportunity to obtain a protective order in respect thereof if no conflict
exists with such Agent’s or Lender’s governmental, regulatory or legal requirements.




          (b) In no event shall this Section 13.7 or any other provision of this Agreement or applicable
law be deemed: (i) to apply to or restrict disclosure of information that has been or is made
public by Borrower or any third party without breach of this Section 13.7 or otherwise become
generally available to the public other than as a result of a disclosure in violation hereof, (ii)
to apply to or restrict disclosure of information that was or becomes available to Agents or
Lenders on a non-confidential basis from a person other than Borrower, (iii) require Agents or





97









 







Lenders to return any materials furnished by Borrower to Agents or Lenders or (iv) prevent
Agents or Lenders from responding to routine informational requests in accordance with the Code
of Ethics for the Exchange of Credit Information promulgated by The Robert Morris Associates or
other applicable industry standards relating to the exchange of credit information. The obligations
of Agents and Lenders under this Section 13.7 shall supersede and replace the obligations of Agents
and Lenders under any confidentiality letter signed prior to the date hereof.




          13.8. Entire Agreement.




     This Agreement, the other Financing Agreements, any supplements hereto or thereto, and any
instruments or documents delivered or to be delivered in connection herewith or therewith
represents the entire agreement and understanding concerning the subject matter hereof and thereof
between the parties hereto, and supersede all other prior agreements, understandings, negotiations
and discussions, representations, warranties, commitments, proposals, offers and contracts
concerning the subject matter hereof, whether oral or written. In the event of any inconsistency
between the terms of this Agreement and any schedule or exhibit hereto, the terms of this Agreement
shall govern.



          13.9. Counterparts, Etc.




     This Agreement or any of the other Financing Agreements may be executed in any number of
counterparts, each of which shall be an original, but all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of this Agreement or any of the
other Financing Agreements by telefacsimile shall have the same force and effect as the delivery of
an original executed counterpart of this Agreement or any of such other Financing Agreements. Any
party delivering an executed counterpart of any such agreement by telefacsimile shall also deliver
an original executed counterpart, but the failure to do so shall not affect the validity,
enforceability or binding effect of such agreement.



          13.10. No Advisory or Fiduciary Responsibility




     In connection with all aspects of each transaction contemplated hereby, the Borrower and the
Obligors each acknowledge and agree that: (i) the credit facility provided for hereunder and any
related arranging or other services in connection therewith (including in connection with any
amendment, waiver or other modification hereof or of any other Financing Agreement) are an
arm’s-length commercial transaction between the Borrower and Obligors, on the one hand, and the
Agents and the Lenders, on the other hand, and each of the Borrowers and Obligors is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Financing Agreements (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the each Agent and Lender is and has been acting solely as a principal and is not
the financial advisor, agent or fiduciary, for the Borrower, the Obligors or any of their
respective Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the
Agents or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in
favor of the Borrower or Obligors with respect to any of the transactions contemplated hereby or
the process leading thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Financing Agreement



98









 




(irrespective of whether any of the Agents or Lenders has advised or is currently advising the
Borrower, any Obligor or any of its Affiliates on other matters) and none of the Agents and Lenders
has any obligation to the Borrower, any Obligor or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Financing Agreements; (iv) the Agents and the Lenders and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Borrower and Obligors and their respective Affiliates, and none of the Agents or Lenders has any
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Agent and the Lenders have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification hereof or of any other Financing Agreement)
and each of the Borrower and Obligors has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. Each of the Borrower and Obligors hereby waives
and releases, to the fullest extent permitted by law, any claims that it may have against each of
the Agents and Lenders with respect to any breach or alleged breach of agency or fiduciary duty.




          13.11. Customer Identification — USA Patriot Act Notice.




     Each Lender and Administrative Agent (for itself and not on behalf of any other party) hereby
notifies Borrower 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 Borrower and/or its subsidiaries, which information includes the
name and address of Borrower and/or its subsidiaries and other information that will allow such
Lender or Administrative Agent, as applicable, to identify Borrower and/or its subsidiaries in
accordance with the Act.



          13.12. Foreign Asset Control Regulations




     Neither of the advance of the Loans nor the use of the proceeds of any thereof will violate
the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy
Act”) or any of the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) (the “Foreign Assets Control Regulations”) or
any enabling legislation or executive order relating thereto (which for the avoidance of doubt
shall include, but shall not be limited to (a) Executive Order 13224 of September 21, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism (66 Fed. Reg. 49079 (2001)) (the “Executive Order”) and (b) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Public Law 107-56)). Furthermore, none of the Borrower or Obligors (a) is or will
become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or
the Foreign Assets Control Regulations or (b) engages or will engage in any dealings or
transactions, or be otherwise associated, with any such “blocked person” or in any manner violative
of any such order.



          13.13. Waiver of Consequential Damages, Etc.



99









 







     To the fullest extent permitted by applicable law, each of the parties hereto agrees not to
assert, and hereby waives, any claim against any other party hereto and its Affiliates on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Financing Agreement or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or letter of credit or the use of the proceeds thereof.



          13.14. Press Releases.




     The Borrower consents to the publication by Administrative Agent or any Lender of advertising
material relating to the financing transactions contemplated by this Agreement using the Borrower’s
name, product photographs, logo or trademark. Administrative Agent or such Lender shall provide a
draft reasonably in advance of any advertising material to the Borrower for its approval prior to
the publication thereof (which approval shall not be unreasonably withheld or delayed).
Administrative Agent reserves the right to provide to industry trade organizations information
necessary and customary for inclusion in league table measurements.



[SIGNATURE PAGE FOLLOWS]






100









 








          IN WITNESS WHEREOF, Agents, Lenders and Borrower have caused these presents to be duly
executed as of the day and year first above written.




	 	 	 	 	 
	 	BORROWER



ULTA SALON, COSMETICS & FRAGRANCE, INC.

 	 
	 	By:  	/s/ Gregg Bodnar
 	 
	 	 	Name:  	Gregg Bodnar 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	Chief Executive Office:



1000 Remington Blvd.

Bolingbrook, IL 60440-4708

 	 



[Signature Page to Loan and Security Agreement]







 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL 
ASSOCIATION, as Administrative Agent, 

Collateral Agent, L/C Issuer and as a Lender

 	 
	 	By:  	/s/ Jason B. Searle
 	 
	 	 	Name:  	Jason B. Searle 	 
	 	 	Title:  	Director 	 
	 
	 	Address:



One Boston Place, 18th Floor

Boston, Massachusetts 02108

 	 



[Signature Page to Loan and Security Agreement]







 









 








	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender 

 	 
	 	By:  	
/s/ Stephanie Pass
 	 
	 	 	Name:  	Stephanie Pass 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Address: 2021 Spring Road, Ste 400

             Oak Brook, IL 60523

 	 



[Signature Page to Loan and Security Agreement]







 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender 

 	 
	 	By:  	/s/ Lynne Ciaccia
 	 
	 	 	Name:  	Lynne Ciaccia 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address:

10 S. Dearborn Street, 22nd Floor

Chicago, IL 60603

 	 



[Signature Page to Loan and Security Agreement]





 











 





EXHIBIT A




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT



Date:                                        




	 	 	 

	To:

	 	Ulta Salon, Cosmetics & Fragrance, Inc. and
	 

	 	Wells Fargo Bank, National
Association, as Administrative Agent


	Re:

	 	Assignment under the Loan Agreement referred to below





Gentlemen and Ladies:




     Please refer to Section 13.6 of the Loan and Security Agreement dated as of August 31,
2010 (as amended or otherwise modified from time to time, the “Loan Agreement”) among Ulta
Salon, Cosmetics & Fragrance, Inc. (the “Borrower”), various financial institutions and
Wells Fargo Bank, National Association, as administrative agent (in such capacity, the
“Administrative Agent”). Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Loan Agreement.



                (the “Assignor”) hereby sells and assigns, without
recourse, to (the “Assignee”), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to the Assignor’s rights and obligations under the Loan Agreement as
of the date hereof equal to    % of all of the Loans, of the participation interests in
the Letter of Credit Accommodations and of the Commitments, such sale, purchase, assignment and
assumption to be effective
 as of                     ,           , or such
later date on which the
Borrower and the Administrative Agent shall have consented hereto (the “Effective Date”).
After giving effect to such sale, purchase, assignment and assumption, the Assignee’s and the
Assignor’s respective Pro Rata Shares for purposes of the Loan Agreement will be as set forth
opposite their names on the signature pages hereof.



     The Assignor hereby instructs the Administrative Agent to make all payments from and after the
Effective Date in respect of the interest assigned hereby directly to the Assignee. The Assignor
and the Assignee agree that all interest and fees accrued up to, but not including, the Effective
Date are the property of the Assignor, and not the Assignee. The Assignee agrees that, upon
receipt of any such interest or fees, the Assignee will promptly remit the same to the Assignor.



     The Assignor 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.



     The Assignee represents and warrants to the Borrower and the Administrative Agent that, as of
the date hereof, the Borrower will not be obligated to pay any greater amount under Section 3.3 of
the Loan Agreement than the Borrower is obligated to pay to the Assignor under such Section. The
[Assignee/Assignor] [Borrower] shall pay a processing fee equal to $3,500 to the Administrative
Agent.



i









 





     The Assignee hereby confirms that it has received a copy of the Loan Agreement. Except as
otherwise provided in the Loan Agreement, effective as of the Effective Date:



          (a) the Assignee (i) shall be deemed automatically to have become a party to the Loan
Agreement and to have all the rights and obligations of a “Lender” under the Loan Agreement
as if it were an original signatory thereto to the extent specified in the second paragraph hereof;
and (ii) agrees to be bound by the terms and conditions set forth in the Loan Agreement as if it
were an original signatory thereto; and




          (b) the Assignor shall be released from its obligations under the Loan Agreement to the extent
specified in the second paragraph hereof.




     The Assignee hereby advises each of you of the following administrative details with respect
to the assigned Loans and Commitment:



	 	 	 	 	 

	 

	 	(A)
	 	Institution Name:
	 

	 	 	 	Address:
	 

	 	 	 	Attention:
	 

	 	 	 	Telephone:
	 

	 	 	 	Facsimile:
	 

	 	(B)
	 	Payment Instructions:






     This Assignment shall be governed by and construed in accordance with the laws of the State of
Illinois.



     Please evidence your receipt hereof and your consent to the sale, assignment, purchase and
assumption set forth herein by signing and returning counterparts hereof to the Assignor and the
Assignee.



	 	 	 	 	 	 	 

	Percentage =      %	 	[ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	Adjusted Percentage =      %	 	[ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






ii









 






	 	 	 	 	 

	ACKNOWLEDGED AND CONSENTED TO	 	 
	this                      day of                      ,           	 	 
	 
	 	 	 	 
	WELLS FARGO BANK, NATIONAL	 	 
	ASSOCIATION, as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	[ACKNOWLEDGED AND CONSENTED TO	 	 
	this                      day of                      ,           	 	 
	 
	 	 	 	 
	ULTA SALON, COSMETICS & FRAGRANCE, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 ] 	 
	 

	 	 

	 	 






iii









 






EXHIBIT B




INFORMATION CERTIFICATE

OF

ULTA SALON, COSMETICS & FRAGRANCE, INC.





Please
see attached



iv









 





EXHIBIT B




INFORMATION CERTIFICATE

OF

ULTA SALON, COSMETICS & FRAGRANCE, INC.




Dated as of August 31, 2010



Wells Fargo Bank, National Association, as Administrative Agent and Collateral Agent



In connection with certain financing provided or to be provided pursuant to that certain Loan and
Security Agreement dated on or about the date hereof (as amended, restated or otherwise modified
from time to time, the “Loan Agreement”; capitalized terms used and not otherwise defined herein
shall be as defined in the Loan Agreement) among Ulta Salon, Cosmetics & Fragrance, Inc. (the
“Company”), the lenders from time to time party thereto (the “Lenders”), and Wells Fargo Bank,
National Association, in its capacities as Administrative Agent and as Collateral Agent for the
Lenders (in such capacities, the “Agent”), the Company represents and warrants to Agent and the
Lenders the following information about the Company, its organizational structure and other matters
of interest to Agent and the Lenders:





	1.	 	The full and exact name of the Company as set forth in its certificate of incorporation is
Ulta Salon, Cosmetics & Fragrance, Inc.
	 
	2.	 	The Company uses and owns the following trade name(s) in the operation of its business (e.g.
billing, advertising, etc.; note: do not include names which are product names only):





Ulta

UltaBeauty

UltaSalon-Cosmetics-Fragrance





	3.	 	The Company is a registered organization of the following type: C Corporation.
	 
	4.	 	The Company was organized on January 9, 1990 under the laws of the State of Delaware and the
Company is in good standing under those laws.
	 
	5.	 	The organizational identification number of the Company issued by its jurisdiction of
organization is  2218695 .
	 
	6.	 	The Federal Employer Identification Number of the Company is  36-3685240 .
	 
	7.	 	The Company is duly qualified and authorized to transact business as a foreign organization
in the following states and is in good standing in such states:





     Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington
and Wisconsin



 









 






	8.	 	Since the date of organization, the name as set forth in its organizational documentation as
filed of record with the applicable state authority has been changed as follows:





	 	 	 
	corporate name	 	date of change
	R.G. Trends Corporation

	 	January 9, 1990 
	Ulta3, Inc.

	 	June 7, 1990 
	Ulta3 The Cosmetics Savings Store, Inc.

	 	February 7, 1992 
	Ulta3 Cosmetics & Salon, Inc.

	 	July 12, 1995 
	Ulta Salon, Cosmetics & Fragrance, Inc.

	 	July 29, 1999 







	9.	 	Since the date of incorporation, the Company has not made or entered into any mergers or
acquisitions.
	 
	10.	 	The deposit, investment and other bank accounts of the Company are as set forth on
Schedule 6.3 hereto.
	 
	11.	 	The chief executive office and mailing address of the Company is located at the address set
forth on part c of Schedule 8.2 hereto.
	 
	12.	 	The books and records of the Company pertaining to accounts, contract rights, inventory, and
other assets are located at the addresses specified on part c of Schedule 8.2 hereto.
	 
	13.	 	The Company has other places of business and/or maintains inventory or other assets only at
the addresses (indicate whether locations are owned, leased or operated by third parties and
if leased or operated by third parties, their name and address) set forth on part c of
Schedule 8.2 hereto.
	 
	14.	 	The Company’s assets are owned and held free and clear of liens, mortgages, pledges, security
interests, encumbrances or charges except as set forth in the Loan Agreement and on Schedule
8.4 hereto.
	 
	15.	 	There are no judgments or litigation pending against the Company, which if adversely
determined against Company could reasonably be expected to have a Material Adverse Effect
except as set forth on Schedule 8.6 hereto.
	 
	16.	 	The Permits of the Company are as set forth on Schedule 8.7 hereto.
	 
	17.	 	The Company is in compliance with all environmental laws applicable to its business or
operations except as set forth on Schedule 8.8 hereto.
	 
	18.	 	Set forth in Schedule 8.9 hereto is a correct and complete list, as of the date hereof, of
all of the Credit Card Agreements and all other agreements, documents and instruments existing
as of the date hereof between or among the Company, any of its affiliates, the Credit Card
Issuers, the Credit Card Processors and any of, their affiliates.
	 
	19.	 	The Company does not own or license any trademarks, patents, copyrights or other intellectual
property, except as set forth on Exhibit A hereto (indicate type of intellectual




 









 






	 	 	property and whether owned or licensed, registration number, date of registration, and, if
licensed, the name and address of the licensor).






	20.	 	The Company is affiliated with, or has ownership in, the corporations (including
subsidiaries) and other organizations set forth on Exhibit B hereto.
	 
	21.	 	The names of the stockholders of the Company and their holdings are as set forth on Exhibit B
hereto (if stock or other interests are widely held indicate only holders owning 10% or more
of the voting stock or other interests). The Permitted Holders (as defined in the Loan
Agreement) are set forth on Exhibit B hereto.
	 
	22.	 	The Company is not a party to or bound by a collective bargaining or similar agreement with
any union, labor organization or other bargaining agent.
	 
	23.	 	Pursuant to Section 9.9 of the Agreement, the Company has no “indebtedness”.
	 
	24.	 	Pursuant to Section 9.10 of the Agreement, the Company has not made any loans or advances or
guaranteed or otherwise become liable for the obligations of any others.
	 
	25.	 	Pursuant to Section 5.1 of the Agreement, the Company does not have any chattel paper
(whether tangible or electronic) or instruments as of the date hereof.
	 
	26.	 	Pursuant to Section 5.1 of the Agreement, the Company does not have any commercial tort
claims which are pending or have been identified as being worthy of pursuit by the Company’s
officers.
	 
	27.	 	There is no provision in the certificate of incorporation or by-laws of the Company or in the
laws of the State of its organization, requiring any vote or consent of it shareholders,
members or other holders of the equity interests therein to borrow or to authorize the
mortgage or pledge of or creation of a security interest in any assets of the Company or any
subsidiary. Such power is vested exclusively in its Board of Directors.
	 
	28.	 	The officers of the Company and their respective titles list on Exhibit C hereto.
	 
	29.	 	The following, as duly elected officers of the Company, will have signatory powers as to all
transactions of the Company with Lender:





Lynelle Kirby, Carl Rubin, Gregg Bodnar and Robert Guttman




	30.	 	The members of the Board of Directors of the Company are listed on Exhibit D hereto.
	 
	31.	 	At the present time, there are no delinquent taxes due (including, but not limited to, all
payroll taxes, personal property taxes, real estate taxes or income taxes).
	 
	32.	 	Certified Public Accountants for the Company is the firm of:





	 	 	 

	Name

	 	Ernst & Young LLP
	Address

	 	Suite 400, 111 North Canal Street, Chicago, IL 60606 






 









 





	 	 	 

	Partner Handling Relationship

	 	Kimberly Simios
	Were statements uncertified for any fiscal year?

	 	No





[signature
page follows]



 









 





     Agents and Lenders shall be entitled to rely upon the foregoing in all respects and the
undersigned is duly authorized to execute and deliver this Information Certificate on behalf of the
Company.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	ULTA SALON, COSMETICS & FRAGRANCE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Gregg Bodnar 
	 	 
	 

	 	Name:
	 	Gregg Bodnar
	 	 
	 

	 	Title:
	 	Chief Financial Officer
	 	 






Exhibit A – Intellectual Property

Exhibit B – Subsidiaries, Affiliates, Investments

Exhibit C – Elected Officers of the Company

Exhibit D – Members of the Board of Directors

Schedule 6.3 – Bank and Investment Accounts

Schedule 8.2 – Name; State of Organization; Chief Executive Office; Collateral Locations

Schedule 8.4 – Existing Liens

Schedule 8.6 – Litigation

Schedule 8.7 – Compliance with Other Agreements and Applicable Laws

Schedule 8.8 – Environmental Compliance

Schedule 8.9 – Credit Card Agreements




[Signature page to Information Certificate]





 








 





EXHIBIT A 

to Information Certificate




Intellectual Property


Owned Trademarks Registered with the United States Patent and Trademark Office




	 	 	 	 	 
	Mark	 	Registration No.	Registration Date
	INFINATIV
	 	2,871,861
	 	8/10/04
	FORMATIV
	 	3,024,270
	 	12/6/05
	ULTA.COM
	 	2,631,363
	 	10/8/02
	ULTA 

SALON-COSMETICS-FRAGRANCE
	 	2,531,889
	 	1/22/02
	ULTA
	 	2,504,336
	 	11/6/01
	WHAT A WOMAN WANTS.
	 	2,504,333
	 	11/6/01
	BASICALLY U
	 	2,598,439
	 	7/23/02
	STUDIO GEAR1
	 	1,845,012
	 	7/12/94 (Renewed 7/12/04)
	ULTA 3
	 	1,681,577
	 	3/31/92 (Renewed 3/31/02)
	ULTA 

SALON-COSMETICS-

FRAGRANCE (Stylized)
	 	2,531,885
	 	1/22/02
	SALON AT ULTA (and Design)
	 	3,719,551
	 	12/1/09
	THE SALON AT ULTA
	 	3,7166,06
	 	11/24/09
	ULTA BEAUTY
	 	3,262,918
	 	7/10/07
	ULTA BEAUTY (and Design)
	 	3,311,177
	 	10/16/07
	ULTA BEAUTY (and Design)
	 	3,311,178
	 	10/16/07
	ULTA.COM
	 	2,631,363
	 	10/8/02
	YOUR BEAUTY DESTINATION
	 	3,796,631
	 	6/1/10





Owned Trademark Applications Pending with the United States Patent and Trademark Office




	 	 	 	 	 
	Mark	 	Serial No.	 	Filing Date
	ULTA.COM YOUR ONLINE DESTINATION
	 	77/579924
	 	9/26/08
	WINDOWS OF LOVE
	 	77/806639
	 	9/18/09








 




			
	1	 	The Company owns the “Studio Gear” trademark,
but the trademark is subject to a License Agreement between The Company and
Studio Gear Cosmetics, Inc. This License Agreement conveys 50% of the
ownership of the mark to Studio Gear Cosmetics, Inc. in May, 1998.





 









 





Licensed Intellectual Property



1. Licenses for use of computer software by the Company and/or its officers, employees and
affiliates in the Company’s business operations.



2. Licenses for use of trade names, trademarks and other intellectual property by the Company
acquired from time to time by the Company with respect to products and services sold or used in
Company’s retail sales.





 









 








EXHIBIT B

to

INFORMATION CERTIFICATE




Subsidiaries; Affiliates; Investments




	A.	 	Subsidiaries (More than 50% owned by Company).     None
	 
	B.	 	Affiliates (Less than 50% Owned by Company).     None
	 
	C.	 	Affiliates (Subject to common ownership with Company).     None
	 
	D.	 	Shareholders (If widely held, only holders with more than 10%)





	 	 	 	 	 
	 	 	Jurisdiction of	 	 
	Name	 	Incorporation	 	Percentage Owned
	Doublemousse B.V.
	 	Netherlands
	 	18.9% of all voting equity







	E.	 	Permitted Holders





	 	 	 	 	 
	 	 	Jurisdiction of	 	 
	Permitted Holder	 	Incorporation	 	Percentage Owned
	Doublemousse B.V. (and its affiliates)
	 	Netherlands
	 	18.9% of all voting equity










 









 








EXHIBIT C

to

INFORMATION CERTIFICATE




	 	 	 
	Name	 	Title
	Lyn Kirby

	 	CEO
	Chuck Rubin

	 	President & COO
	Gregg Bodnar

	 	Chief Financial Officer & Assistant Secretary
	Robert Guttman

	 	SVP, General Counsel & Secretary
	Wayne L’Heureux

	 	Senior Vice President, Human Resources
	 
	 	 
	Chris Schultz

	 	Chief Information Officer
	Alex Lelli

	 	Senior Vice President, Growth & Development
	Janet Taake

	 	Senior Vice President, Merchandising
	Pat Murphy

	 	Vice President, Supply Chain
	Rich Bos

	 	Vice President, Marketing, CRM, Loyalty & Replenishment
	 
	 	 
	M. Bolyard

	 	Senior Vice President, Prestige
	Barbara Zamudio

	 	Vice President, Mass Merchandising
	Holly Schmidt

	 	Vice President, Merchandising
	Julie Tomasi

	 	Vice President, Merchandising Operations
	Dan Atkinson

	 	Vice President, New Stores & Operation Strategy
	Phil Horvath

	 	Vice President and General Manager, Salon
	Jodi Holland

	 	Regional Vice President, Operations — West
	Marguerite Garvey

	 	Regional Vice President, Operations — South
	Kelly Cusick

	 	Regional Vice President, Operations — East
	Scott Settersten

	 	Vice President, Finance
	Erwin Winkler

	 	Vice President, Store Design & Brand Identity
	David Southworth

	 	Vice President, E-Commerce
	Steve Squier

	 	Vice President, Financial Planning & Analysis
	 
	 	 
	Bruce Haynes

	 	Vice President, Real Estate
	Doron Sacham

	 	Vice President, Construction
	Rick Myers

	 	Vice President, Construction
	Richard Franz

	 	Vice President, Real Estate — West
	David Rayner

	 	Vice President, Real Estate — East
	Mani Krishna

	 	Vice President, Supply Chain Engineering
	 
	 	 
	Janet Lindeman

	 	Assistant Secretary











 









 








EXHIBIT D

to

INFORMATION CERTIFICATE




DIRECTORS



	 	 	 	 	 
	Name	 	Title and Company	 	Business Address
	 
	Dennis K. Eck

	 	Non-Executive Chairman of the
Board
	 	302 Marigold Ave.

Corna Del Mar, CA 92625
	 
	 	 	 	 
	Lynelle P. Kirby

	 	CEO
	 	1000 Remington Blvd
	 

	 	Ulta Salon Cosmetics & Fragrance
	 	Bolingbrook, IL 60440
	 
	 	 	 	 
	Chuck Rubin

	 	President & COO
	 	1000 Remington Blvd
	 

	 	Ulta Salon Cosmetics & Fragrance
	 	Bolingbrook, IL 60440
	 
	 	 	 	 
	Herve J. F. Defforey

	 	Director
	 	139 Picadilly
	 

	 	(Operating Partner, GRP)
	 	London, England UK
	 

	 	 	 	W1J7NU
	 
	 	 	 	 
	Robert DiRomualdo

	 	Director
	 	8477 Bay Colony Dr., #502
	 

	 	(Chairman & CEO of Naples
	 	Naples, FL 34108
	 

	 	Ventures, LLC)	 	 
	 
	 	 	 	 
	Charles Heilbronn

	 	Director
	 	Nine West 57th St.
	 

	 	(Executive VP & Secretary of
	 	44th Floor
	 

	 	Chanel, Inc. and Executive VP
of Chanel Limited)
	 	New York, NY 10019
	 
	 	 	 	 
	Lorna Nagler

	 	Director
	 	2500 Xenium Lane North
	 

	 	(President &CEO of Christopher
& Banks Corporation)
	 	Plymouth, MN 55441
	 
	 	 	 	 
	Charles J. Philippin

	 	Director
	 	8 Rutgers St
	 

	 	 	 	Closter, NJ 07624
	 
	 	 	 	 
	Yves Sisteron

	 	Director
	 	2121 Avenue of the Stars
	 

	 	(Partner, GRP Partners)
	 	Suite 1630
	 

	 	 	 	Los Angeles, CA 90067






 









 





SCHEDULE 6.3

to

INFORMATION CERTIFICATE




Bank and Investment Accounts 


Bank of America Corporate Accounts



 9021728  Disbursements Account – All non-payroll payments are issued from this account. Advances
from the revolving credit agreement are credited to this account. This account funds payroll,
taxes, employee 401k contributions, and ZBA accounts noted below. Bank of America account fees are
debited from this account mid-month.



 2241504  Concentration Account – All 6 regional depository banks listed below (excluding Bank of
America Account  3312238 ) wire transfer available funds into this account. All Visa, MasterCard,
Discover, and AMEX funds are transferred into this account and other credits are also deposited to
this account. When there is a line of credit balance, the interim available balance in this
account goes to pay down the line of credit.



 2336775  Insurance ZBA – Our health insurance companies, Blue Cross and Blue Shield and Planned
Administrators, Inc., debit this account weekly and biweekly, respectively, for health insurance
claims processed.




 5800416199  Flex Spending Account ZBA



 5800416223  Ulta Inc Pay Card Account ZBA– Payroll Pay Cards are funded from this account



Depository Accounts only at other Banks




	 	 	 	 	 

	Bank of America (IL, IN)


(Interim available balance
pays down line of credit if
line of credit has a
balance)

	 	Account #  3312238  
	 	IL stores serviced by Dunbar or Garda
	 

	 	 	 	IN store serviced by Garda
	 
	 	 	 	 
	Bank of America (Pre-Merger
B of A Account) (CT, FL, IL,
MA, MD, NC, NY, OK, PA, SC,
TN, VA)

	 	Main Account #

 8666207431  
	 	CT stores serviced by Dunbar
	 

	 	 	 	FL stores serviced by Brinks,

Dunbar or Garda
	 

	 	 	 	IL stores serviced by Dunbar or

Garda
	 

	 	 	 	MA stores serviced by Garda
	 

	 	 	 	MD stores serviced by Dunbar






 









 






	 	 	 	 	 

	 

	 	 	 	NC stores serviced by Dunbar or Garda
	 

	 	 	 	NY stores serviced by Dunbar
	 

	 	 	 	OK stores serviced by Brinks or

Loomis Fargo
	 

	 	 	 	PA store serviced by Dunbar
	 

	 	 	 	SC stores serviced by Garda
	 

	 	 	 	TN store serviced by Brinks
	 

	 	 	 	VA stores serviced by Dunbar or Garda
	JPMorgan Chase

	 	Main Account #  722597838 

(Sub-Accts Listed Below)	 	 
	JPMorgan Chase (CA)

	 	 886076108 
	 	Stores serviced by Garda
	JPMorgan Chase (CO)

	 	

 191980448 
	 	Stores serviced by Dunbar
	JPMorgan Chase (IN)

	 	
 630741668 
	 	Stores serviced by Garda
	JPMorgan Chase (KY)

	 	
 624003638 
	 	Stores serviced by Garda
	JPMorgan Chase (LA)

	 	
 722598398 
	 	Stores serviced by Brinks, Dunbar or Loomis
	JPMorgan Chase (NY)

	 	
 209043296 
	 	Stores serviced by Safe & Sound,

Brinks, Loomis Fargo or Titan

Armored
	JPMorgan Chase (OK)

	 	
 817038334 
	 	Store # 390 is serviced by Brinks
	JPMorgan Chase (TX)

	 	
 1889860670 
	 	Stores serviced by Brinks, Dunbar,

Garda, Trinity Armored or Rochester

Armored
	JPMorgan Chase (UT)

	 	 722598521 
	 	Store # 266 is serviced by Garda
	JPMorgan Chase (WI)

	 	
 675517445 
	 	Stores serviced by Dunbar or Garda
	 
	 	 	 	 
	PNC Bank (FL, MD, MI, NC, 

OH, PA)

	 	Account #  1138340707 	 	 
	 

	 	 	 	FL store 363 serviced by Garda
	 

	 	 	 	MD store 213 serviced by Dunbar
	 

	 	 	 	MI stores serviced by Garda
	 

	 	 	 	NC store 231 serviced by Dunbar
	 

	 	 	 	OH stores serviced by Dunbar or Garda
	 

	 	 	 	PA stores serviced by Dunbar or Garda
	 
	 	 	 	 
	US Bank (AR, AZ, IA, KS, MN, 

MO, NE, TN, WA)

	 	Main Account #

 153910154555  	 	 
	 

	 	 	 	AR store 236 is serviced by Armored
Transport Service
	 

	 	 	 	AZ stores serviced by Dunbar,

Garda, or Brinks
	 

	 	 	 	IA stores serviced by Lewis Systems
	 

	 	 	 	KS store 197 serviced by Garda
	 

	 	 	 	MN stores serviced by Garda or






 









 






	 	 	 	 	 

	 

	 	 	 	Granite City Armored Car
	 

	 	 	 	NE stores serviced by Rochester
	 

	 	 	 	TN stores serviced by Garda or Brinks
	 

	 	 	 	WA stores serviced by Dunbar or Garda
	 
	 	 	 	 
	Wachovia (AL, DE, FL, GA, 

MD, MS, NC, NJ, PA, RI, TN, 

VA)

	 	Account #

 200000-344-3688  	 	 
	 

	 	 	 	AL stores serviced by Brinks
	 

	 	 	 	DE store 86 serviced by Garda
	 

	 	 	 	FL stores serviced by Dunbar, Brinks or Garda
	 

	 	 	 	GA stores serviced by Dunbar, Garda or Loomis
	 

	 	 	 	MD store 367 serviced by Dunbar
	 

	 	 	 	MS stores serviced by Brinks or Loomis
	 

	 	 	 	NC store 219 serviced by Garda
	 

	 	 	 	NJ stores serviced by Dunbar or Garda
	 

	 	 	 	PA stores serviced by Dunbar or Garda
	 

	 	 	 	RI store 320 serviced by Dunbar
	 

	 	 	 	TN store 316 serviced by Dunbar
	 

	 	 	 	VA store 366 serviced by Dunbar
	 
	 	 	 	 
	Wells Fargo Bank (CA)

	 	Main Account #

 4496875907 

(Sub-Accts Listed Below)
	 	Stores serviced by Dunbar or Garda
	 
	 	 	 	 
	Wells Fargo Bank (CO)

	 	 4010018679 
	 	Stores serviced by Dunbar or Horizon Armored Service
	Wells Fargo Bank (MN)

	 	
 4945002293 
	 	Stores serviced by Garda
	Wells Fargo Bank (NV)

	 	

 4435743745 
	 	Stores serviced by Garda
	Wells Fargo Bank (OR)

	 	

 4121184550 
	 	Stores serviced by Garda
	Wells Fargo Bank (UT)

	 	

 4121719199 
	 	Store 371 is serviced by Garda





Investment Accounts




	 	 	 	 	 

	Bank of America Investment

	 	 399116  Investment Account
	 	Overnight

Commercial Paper

Account






 









 






SCHEDULE 8.2

to

INFORMATION CERTIFICATE




Name; State of Organization; Chief Executive Office; Collateral Locations


Part (a) – Exact Legal Name of Borrower




     Ulta Salon, Cosmetics & Fragrance, Inc.



     Fictitious Names:



     R.G. Trends Corporation



     Ulta 3, Inc.



     Ulta 3 The Cosmetics Savings Store, Inc.



     Ulta 3 Cosmetics & Salon, Inc.


Part (b) – Domestic State and Foreign Jurisdictions




     Domestic: Delaware



     Foreign: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington
and Wisconsin


Part (c) – Chief Executive Office, Mailing Address and Location of Books and Records




1000 Remington Blvd.

Bolingbrook, Illinois, 60440




     Locations of Inventory, Equipment and Other Assets



     See Attachment to Schedule 8.2




 











 





Schedule 8.2 – Attachment 1

to

Information Certificate

Locations of Inventory, Equipment and Other Assets

Note: All business locations are leased




	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	1.
	 	0005	 	NorthPoint	 	456 E. Rand Rd.	 	AmCap Northpoint LLC AmCap, Inc. 1281 East
	 
	 	 	 	 	 	Arlington Hgts, IL 60004	 	Main Street Suite 200 Stamford CT  06902
	 
	 	 	 	 	 	 	 	 
	2.
	 	0007	 	Lake View	 	15754 S. LaGrange Rd.	 	Simon Property Group (IL), L.P. Simon Property
	 
	 	 	 	 	 	Orland Park, IL 60462	 	Group 225 W. Washington Street  Indianapolis
	 
	 	 	 	 	 	 	 	IN  46204-3438
	 
	 	 	 	 	 	 	 	 
	3.
	 	0008	 	Danada Square West	 	112 Danada Square West	 	Danada Square West Shopping Center UCR Asset
	 
	 	 	 	 	 	Wheaton, IL 60187	 	Services 7001 Preston Road Suite 215 Dallas TX
	 
	 	 	 	 	 	 	 	75205
	 
	 	 	 	 	 	 	 	 
	4.
	 	0012	 	Quarry Shopping Center	 	9720 Joliet Rd.	 	CSDV, Limited Partnership Mid America Asset
	 
	 	 	 	 	 	Suite 100	 	Management, Inc. One Parkview Plaza 9th Floor
	 
	 	 	 	 	 	Hodgkins, IL 60525	 	Oakbrook Terrace IL  60181-4731
	 
	 	 	 	 	 	 	 	 
	5.
	 	0013	 	Mansell Crossings	 	7671 N. Point Parkway	 	Centro Property Group  420 Lexington Ave NW
	 
	 	 	 	 	 	Alpharetta, GA 30022	 	7th Floor New York NY  10170
	 
	 	 	 	 	 	 	 	 
	6.
	 	0017	 	Sportmart Plaza	 	145 Army Trail Rd.	 	MB BP Portfolio, L.L.C Inland American Retail
	 
	 	 	 	 	 	Glendale Hgts, IL 60139	 	Management LLC 2901 Butterfield Road
	 
	 	 	 	 	 	 	 	Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	7.
	 	0021	 	Woodfield Village Green	 	1480 Golf Rd.	 	DDR MDT Woodfield Village LLC Developers
	 
	 	 	 	 	 	Schaumburg, IL 60173	 	Diversified Realty Corporation 3300 Enterprise
	 
	 	 	 	 	 	 	 	Parkway  Beachwood OH  44122
	 
	 	 	 	 	 	 	 	 
	8.
	 	0022	 	Market East	 	1515 Town E. Blvd.	 	Sun Life Assurance Company of Canada U.S.
	 
	 	 	 	 	 	Suite 117	 	Crestview Real Estate, LLC 8214 Westchester
	 
	 	 	 	 	 	Mesquite, TX 75150	 	Dr. #850 Dallas TX  75088
	 
	 	 	 	 	 	 	 	 
	9.
	 	0023	 	North & Sheffield	 	1000 W. North Ave.	 	North Avenue Properties, LLC          1000
	 
	 	 	 	 	 	Chicago, IL 60622	 	West North Avenue            Chicago, IL 60622
	 
	 	 	 	 	 	 	 	(c/o Chicago Title
	 
	 	 	 	 	 	 	 	& Trust Company u/d/a 1100415 Penmark
	 
	 	 	 	 	 	 	 	Industries, Inc., as agent)
	 
	 	 	 	 	 	 	 	 
	10.
	 	0024	 	Grove Shopping Center	 	1310 W. 75th St.	 	Robin Realty & Management Company  1333 North
	 
	 	 	 	 	 	Downers Grove, IL 60516	 	Wells Street  Chicago IL  60610
	 
	 	 	 	 	 	 	 	 
	11.
	 	0025	 	Barrett Pavilion	 	680 Barrett Parkway	 	DDRTC Barrett Pavilion LLC Developers
	 
	 	 	 	 	 	Kennesaw, GA 30144	 	Diversified Realty Corporation 3300 Enterprise
	 
	 	 	 	 	 	 	 	parkway  Beachwood OH  44122
	 
	 	 	 	 	 	 	 	 
	12.
	 	0027	 	Schaumburg Plaza	 	361 S. Barrington Road	 	Inland Real Estate-Illinois, L.L.C. Inland
	 
	 	 	 	 	 	Schaumburg, IL 60193	 	Commercial Property Mgmt. Inc. 2901
	 
	 	 	 	 	 	 	 	Butterfield Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	13.
	 	0033	 	Scottsdale Pavilions	 	9019 E. Indian Bend Rd.	 	Spire South, L.L.C.  8350 East McDonald Drive
	 
	 	 	 	 	 	Scottsdale, AZ 85250	 	Suite C Scottsdale  AZ  85250
	 
	 	 	 	 	 	 	 	 
	14.
	 	0035	 	Camelback Colonnade	 	1949 E. Camelback Rd., Suite 146	 	The Macerich Company Camelback Colonnade
	 
	 	 	 	 	 	Phoenix, AZ 85016	 	Assoc. Limited Partnerhsip 11411 North Tatum
	 
	 	 	 	 	 	 	 	Blvd.  Phoenix AZ  85028
	 
	 	 	 	 	 	 	 	 
	15.
	 	0037	 	Village Fair North	 	12867 N. Tatum Blvd.	 	Financial Trading & Transacting Corporation
	 
	 	 	 	 	 	Phoenix, AZ 85032	 	N.V.  1790 E. River Road Suite 310 Tucson AZ
	 
	 	 	 	 	 	 	 	85718
	 
	 	 	 	 	 	 	 	 
	16.
	 	0038	 	Commons of Crystal Lake	 	6326 NW Highway	 	Heritage Property Investment Trust, Inc.
	 
	 	 	 	 	 	Crystal Lake, IL 60014	 	c/o Bradley Operating Limited Partnership
	 
	 	 	 	 	 	 	 	99458 Collection Center Drive  22900029
	 
	 	 	 	 	 	 	 	Chicago, IL 60693  Attn: Bill Read






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	17.
	 	0039	 	Perimeter Village	 	4737 Ashford Dunwoody	 	WRI Retail Pool I, L.P.  P.O. Box 924133
	 
	 	 	 	 	 	Atlanta, GA 30338	 	Houston TX  77292-4133
	 
	 	 	 	 	 	 	 	 
	18.
	 	0040	 	Gap Shopping Center	 	4115 N. Harlem Ave.	 	Irving-Harlem Management Company  P.O. Box 407
	 
	 	 	 	 	 	Norridge, IL 60634	 	Deerfield IL  60015
	 
	 	 	 	 	 	 	 	 
	19.
	 	0041	 	Hobart Shopping Center	 	2395 E. 81st Ave.	 	Crossings at Hobart-I, LLC Schottenstein
	 
	 	 	 	 	 	Merrillville, IN 46410	 	Property Group 4300 E. Fifth Ave.  Columbus OH
	 
	 	 	 	 	 	 	 	43219
	 
	 	 	 	 	 	 	 	 
	20.
	 	0042	 	Preston Forest Village	 	11661 Preston Rd.	 	PFV/Realty III, LP PRK Holdings IV, LLC PO Box
	 
	 	 	 	 	 	Dallas, TX 75230	 	730649  Dallas TX  75373-0649
	 
	 	 	 	 	 	 	 	 
	21.
	 	0043	 	Heritage Point	 	2540 Cumberland Rd.	 	DDRTC Heritage Pavioion LLC  Dept. 105437
	 
	 	 	 	 	 	Smyrna, GA 30080	 	30413 21119 PO Box 534420 Atlanta GA
	 
	 	 	 	 	 	 	 	30353-4420
	 
	 	 	 	 	 	 	 	 
	22.
	 	0044	 	Clark Wellington Center	 	3015 N. Clark St.	 	American National Bank Trust Agreement 64797
	 
	 	 	 	 	 	Chicago, IL 60657	 	Mid-America Asset Mgmt Two Mid-America Plaza
	 
	 	 	 	 	 	 	 	Third Floor Oak Brook Terrace IL  60181
	 
	 	 	 	 	 	 	 	 
	23.
	 	0045	 	Belleview Shores	 	5132 S. Wadsworth	 	Jordon Perlmutter  1601 Blake St Suite 600
	 
	 	 	 	 	 	Littleton, CO 80123	 	Denver CO  80202
	 
	 	 	 	 	 	 	 	 
	24.
	 	0046	 	Market at Town Center	 	2601 Town Center Blvd.	 	Market @ Town Center Sugarland Partnership
	 
	 	 	 	 	 	Sugar Land, TX 77479	 	P.O. Box 924133  Houston TX  77292-4133
	 
	 	 	 	 	 	 	 	 
	25.
	 	0047	 	Arrowhead Crossing	 	7665 W. Bell Rd.	 	Developers Diversified Realty Corp.  (1827)
	 
	 	 	 	 	 	Peoria, AZ 85382	 	3300 Enterprise Parkway P.O. Box 228042
	 
	 	 	 	 	 	 	 	Beachwood OH  44122
	 
	 	 	 	 	 	 	 	 
	26.
	 	0048	 	America Drive Shopping 	 	6575 E. State St.	 	FRIDH . Corp.  1111 S. Alpine Road Suite 401
	 
	 	 	 	Center 	 	Rockford, IL 61108	 	Rockford IL  61108
	 
	 	 	 	 	 	 	 	 
	27.
	 	0052	 	Ahwatukee Foothills 	 	4601 E. Ray Rd.	 	DDRA Ahawatukee Foothills LLC Developers
	 
	 	 	 	Towne Center	 	Phoenix, AZ 85044	 	Diversified Realty Corporation 3300 Enterprise
	 
	 	 	 	 	 	 	 	Parkway  Beachwood OH  44122
	 
	 	 	 	 	 	 	 	 
	28.
	 	0054	 	Levittown Mews	 	3377 Hempstead Turnpike	 	Levittown Mews Associates, LP 500 Old Country
	 
	 	 	 	 	 	Levittown, NY 11756	 	road Suite 200 Garden City NY  11530
	 
	 	 	 	 	 	 	 	 
	29.
	 	0055	 	Smith Haven Plaza	 	2005 Smith Haven Plaza	 	C & B Realty #2 LLC Colin Development LLC 1520
	 
	 	 	 	 	 	Lake Grove, NY 11755	 	Northern Boulevard  Manhasset NY  11030
	 
	 	 	 	 	 	 	 	 
	30.
	 	0057	 	Mesa Pavilions at	 	6948 E. Hampton Ave.	 	PL Mesa Pavilions LLC Kimco Realty 18001 Sky
	 
	 	 	 	Superstation Spring	 	Mesa, AZ 85208	 	Park Circle Suite H Irvine CA  92614
	 
	 	 	 	 	 	 	 	 
	31.
	 	0058	 	Shoppes at the Meadows	 	8368 S. Willow St.	 	Shoppes at the Meadows
	 
	 	 	 	 	 	Littleton, CO 80124	 	c/o 8375 S. Willow St., Suite 500
	 
	 	 	 	 	 	 	 	Littleton, CO 80124
	 
	 	 	 	 	 	 	 	 
	32.
	 	0059	 	Stephanie Street Shopping	 	543 N. Stephanie	 	Harsch Investment Properties  851 SW 6th
	 
	 	 	 	Center	 	Henderson, NV 89014	 	Avenue Suite 550 Portland OR  97204
	 
	 	 	 	 	 	 	 	 
	33.
	 	0061	 	Deerbrook Shopping Center	 	130B S. Waukegan Rd.
Deerfield, IL 60015	 	GATEWAY FAIRVIEW RREEF Management
Company 3340 Peachtree Road Suite 250 Atlanta GA  30326
	 
	 	 	 	 	 		 	
	 
	 	 	 	 	 	 	 	 
	34.
	 	0062	 	Shops at Oak Brook Place	 	2155 W. 22nd St.	 	The Shops at Oak Brook Place, L.P. Creit
	 
	 	 	 	 	 	Oak Brook, IL 60521	 	Management L.P. 220Portage Avenue Suite 1304
	 
	 	 	 	 	 	 	 	Winnipeg, Manitoma   R3C 0A5






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	35.
	 	0065	 	Ridgehaven Mall	 	13145 Ridgedale Dr.	 	Ridgehaven Mall, Inc  Invesco Institutional,
	 
	 	 	 	 	 	Minnetonka, MN 55305	 	(N.A.), Inc. 500 Three Galleria Tower 13155
	 
	 	 	 	 	 	 	 	Noel Road Dallas TX  75240
	 
	 	 	 	 	 	 	 	 
	36.
	 	0066	 	Gateway Plaza 1	 	499 Sunrise Highway	 	Patchogue Associates    Pergament Investments,
	 
	 	 	 	 	 	Patchogue, NY 11772	 	Inc. 1500 Old Northern Boulevard  Rosyln NY
	 
	 	 	 	 	 	 	 	11576
	 
	 	 	 	 	 	 	 	 
	37.
	 	0067	 	Grand Hunt Center	 	6517 Grand Ave.	 	Principal Life Ins. Co  Grand Hunt Center PO
	 
	 	 	 	 	 	Gurnee, IL 60031	 	Box 6113 Property 002910 Hicksville NY
	 
	 	 	 	 	 	 	 	11802-6113
	 
	 	 	 	 	 	 	 	 
	38.
	 	0068	 	King Kullen Plaza	 	78 Veterans Memorial Highway	 	Smithtown Venture, LLC Kimco Realty
	 
	 	 	 	 	 	Commack, NY 11725	 	Corporation  3333 New Hyde Park Road Suite 100
	 
	 	 	 	 	 	 	 	New Hyde Park NY  11042
	 
	 	 	 	 	 	 	 	 
	39.
	 	0069	 	Randall Square	 	1560 S. Randall Rd.	 	Randall Plaza In Retail Fund Randall Square
	 
	 	 	 	 	 	Geneva, IL 60134	 	LLC 2901 Butterfield Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	40.
	 	0070	 	University Hills	 	2780 S. Colorado Blvd.	 	Goldberg Propert Association, Inc. c/o Black
	 
	 	 	 	 	 	Denver, CO 80210	 	Cherry LLC dept 0597 Denver, CO 80263
	 
	 	 	 	 	 	 	 	 
	41.
	 	0071	 	Pinecroft II Shopping 	 	1600 Lake Woodlands Dr.	 	CSHV Woodlands, LP heitman Capital Management
	 
	 	 	 	Center 	 	The Woodlands, TX 77380	 	LLC PO Box 730006  Dallas TX  15919-3006
	 
	 	 	 	 	 	 	 	 
	42.
	 	0072	 	Buckhead Station	 	3495 Buckhead Loop, Suite 120	 	Equity One (Buckhead Station), LLC Equity One,
	 
	 	 	 	 	 	Atlanta, GA 30326	 	Inc. 1600 N.E. Miami Gardens Drive  North
	 
	 	 	 	 	 	 	 	Miami Beach FL  33179-4902
	 
	 	 	 	 	 	 	 	 
	43.
	 	0073	 	Marketplace at Northglen	 	421 W. 104th Ave.	 	ELPF Northglenn, LLC LaSalle Investment
	 
	 	 	 	 	 	Northglen, CO 80234	 	Management, Inc. 8343 Douglas Suite 100 Dallas
	 
	 	 	 	 	 	 	 	TX  75225
	 
	 	 	 	 	 	 	 	 
	44.
	 	0075	 	Gateway Market Center	 	9607 Research Blvd.	 	Shopping Center at Gateway, LP Simon Property
	 
	 	 	 	 	 	Austin, TX 78759	 	Group 225 W. Washington Street  Indianapolis
	 
	 	 	 	 	 	 	 	IN  46204
	 
	 	 	 	 	 	 	 	 
	45.
	 	0077	 	The Promenade at Frank 	 	16231 N. Scottsdale Road	 	Pacific Promenade, LLC Pederson Group 2800 N.
	 
	 	 	 	Lloyd Wright	 	Scottsdale, AZ  85254	 	Central Ave #1500 Phoenix AZ  85004
	 
	 	 	 	 	 	 	 	 
	46.
	 	0078	 	Snellville Pavilion	 	2059 Scenic Highway	 	KIR Snellville L.P. Kimco Realty Corporation
	 
	 	 	 	 	 	Snelville, GA 30278	 	3333 New Hyde Park Road  New Hyde Park NY
	 
	 	 	 	 	 	 	 	11042-0020
	 
	 	 	 	 	 	 	 	 
	47.
	 	0079	 	Lakeline Plaza	 	11066 Pecan Park Blvd.	 	Lakeline Plaza LLC Simon Property Group 225 W.
	 
	 	 	 	 	 	Austin, TX 78613	 	Washington Street  Indianapolis IN  46204-3438
	 
	 	 	 	 	 	 	 	 
	48.
	 	0080	 	Mall of Georgia Crossings	 	3205 Woodward Crossing	 	Mall of Georgia Crossing, LLC MS Management
	 
	 	 	 	 	 	Atlanta, GA 30519	 	Association, Inc. National City Center 115
	 
	 	 	 	 	 	 	 	West Washington Indianapolis IN  46204
	 
	 	 	 	 	 	 	 	 
	49.
	 	0081	 	Baybrook Village	 	1507B West Bay Area	 	Coventry Development corporation  1041 Third
	 
	 	 	 	 	 	Houston, TX 77598	 	Avenue 2nd Floor New York NY  10021






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	50.
	 	0082	 	Trinity Commons	 	3000 S. Hulen St.	 	Heritage Trinity Commons SPE Limited
	 
	 	 	 	 	 	Suite 130	 	Partnership Centro Heritage SPE 6 LLC General
	 
	 	 	 	 	 	Forth Worth, TX 76109	 	Post Office #32500013 PO Box 30907
New York NY 10087-0907
	 
	 	 	 	 	 	 	 	 
	51.
	 	0083	 	Dearbrook Marketplace	 	20530 US 59 North	 	Deerbrook Marketplace                 20202 US
	 
	 	 	 	 	 	Humble, TX 77338	 	Highway 59 North, Suite 100  Humble, TX 77338
	 
	 	 	 	 	 	 	 	 
	52.
	 	0084	 	Court at Oxford Valley	 	146 Commerce Blvd.	 	Goldenberg Group Sub-Tenant of Dick’s Sporting
	 
	 	 	 	 	 	Fairless, PA 19030	 	Goods 630 Sentry Parkway Suite 200 Blue Bell
	 
	 	 	 	 	 	 	 	PA  19422
	 
	 	 	 	 	 	 	 	 
	53.
	 	0086	 	Concord Mall	 	4803 Concord Pike	 	NTFB, LLC  4737 Concord Pike  Wilmington DE
	 
	 	 	 	 	 	Wilmington, DE 19803	 	19803
	 
	 	 	 	 	 	 	 	 
	54.
	 	0087	 	Collin Creek Village	 	721 N. Central Expressway	 	Rosewood Mgmt Corp. Lyda Hunt - Caroline Trust
	 
	 	 	 	 	 	East Plano, TX 75075	 	100 Crescent Court Suite 1700 Dallas TX
	 
	 	 	 	 	 	 	 	75201-1878
	 
	 	 	 	 	 	 	 	 
	55.
	 	0088	 	Montgomery Square	 	1221 Knapp Road	 	KIR Montgomery  Kimco Realty Corporation
	 
	 	 	 	 	 	North Wales, PA 19454	 	Mid-Atlantic Region 170 W. Ridgely Road, Suite
	 
	 	 	 	 	 	 	 	210  Lutherville MD  21093
	 
	 	 	 	 	 	 	 	 
	56.
	 	0089	 	Deptford Crossing	 	1800 Clements Bridge Rd.	 	Deptford Commons, LLC Malachite Group, Ltd. 48
	 
	 	 	 	 	 	Deptford, NJ 08086	 	East Old Country Road 203 Mineola NY  10501
	 
	 	 	 	 	 	 	 	 
	57.
	 	0090	 	Westridge Court	 	2707 Aurora Ave.	 	Centro Properties Group  40 Skokie Blvd Suite
	 
	 	 	 	 	 	Naperville, IL 60540	 	600 Northbrook IL  60062
	 
	 	 	 	 	 	 	 	 
	58.
	 	0091	 	LaFrontera Plaza	 	2701 Parker Road	 	Frontier Village, L.P. Sansone Group 120 S.
	 
	 	 	 	 	 	Bldg. C	 	Central Suite 100 Saint Louis MO  63105
	 
	 	 	 	 	 	Round Rock, TX  78681	 	 
	 
	 	 	 	 	 	 	 	 
	59.
	 	0092	 	Gateway Plaza Center	 	2900 E. Southlake Blvd.	 	Inland Western Southlake Limited Partnership
	 
	 	 	 	 	 	Southlake, TX 76092	 	2901 Butterfield Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	60.
	 	0093	 	Greentree Retail Center	 	455 S. Fry Rd.	 	Caltim, LTD. Westco Property Management
	 
	 	 	 	 	 	Katy, TX 77450	 	Company 365 Sawdust Road  Spring TX  77380
	 
	 	 	 	 	 	 	 	 
	61.
	 	0094	 	Shops at Northeast Mall	 	880 Northeast Mall Blvd.	 	Simon Property Group (TX) LP Simon Property
	 
	 	 	 	 	 	Hurst, TX 76053	 	Group 225 W. Washington Street  Indianapolis
	 
	 	 	 	 	 	 	 	IN  46204-3438
	 
	 	 	 	 	 	 	 	 
	62.
	 	0095	 	Lakewood City Commons	 	489 S. Wadsworth Blvd.	 	Lakewood City Commons L.P.  1901 Avenue of the
	 
	 	 	 	 	 	Lakewood, CO 80226	 	Stars Suite 885 Los Angeles CA  90067-6002
	 
	 	 	 	 	 	 	 	 
	63.
	 	0096	 	Broadcast Square 	 	2755 Paper Mill Road, Space L	 	Spring Ridge, LP S. Ridge Management, LLC 1000
	 
	 	 	 	Shopping Center	 	Wyomissing, PA  19610	 	North Front Street Suite 500 Wormleysburg PA
	 
	 	 	 	 	 	 	 	17043
	 
	 	 	 	 	 	 	 	 
	64.
	 	0097	 	Shops at One Orchard 	 	9635 Skokie Blvd.	 	Inland Commercial Property Management, Inc. As
	 
	 	 	 	Place 	 	Skokie, IL  60077	 	Managing Agent for the Owner 2901 Butterfield
	 
	 	 	 	 	 	 	 	Rd.  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	65.
	 	0098	 	Preston Ridge, The 	 	3333 Preston Rd.	 	BPR Shopping Center,  Centro Properties Group
	 
	 	 	 	Centre at 	 	Frisco, TX 75034	 	420 Lexington Avenue 7th Floor ew York NY
	 
	 	 	 	 	 	 	 	10170






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	66.
	 	0099	 	Chandler Festival	 	2680 W. Chandler Blvd.	 	Chandler Festival Center  311 W. Chandler Blvd
	 
	 	 	 	 	 	Chandler, AZ 85224	 	#2142 Chandler AZ  85226
	 
	 	 	 	 	 	 	 	 
	67.
	 	0100	 	Silverado Ranch Station	 	9857 S. Eastern Avenue	 	AIG Baker Silverado, LLC 1701
	 
	 	 	 	 	 	Las Vegas, NV  89183	 	Lee Branch Lane Birmingham, AL 35242
	 
	 	 	 	 	 	 	 	 
	68.
	 	0101	 	Metroplex Shopping 	 	2540 Chemical Rd.	 	Goldenberg Mgmt., Inc. Metroplex West Assoc.
	 
	 	 	 	Center 	 	Plymouth Meeting, PA 19462	 	LP 630 Sentry Parkway Suite 200 Blue Bell PA
	 
	 	 	 	 	 	 	 	19422
	 
	 	 	 	 	 	 	 	 
	69.
	 	0103	 	Creekside Town Center	 	1232 Galleria Blvd.	 	Donahue Schriber Asset Management Creekside
	 
	 	 	 	 	 	Suite 100	 	Center. LLC 200 E. Baker Street Suite 100
	 
	 	 	 	 	 	Roseville, CA 95678	 	Costa Mesa CA  92626
	 
	 	 	 	 	 	 	 	 
	70.
	 	0104	 	East Gate Square	 	1470 Nixon Drive	 	East Gate Center V, Tenants In Common  770
	 
	 	 	 	 	 	Mount Laurel, NJ 08054	 	Township Line Road Suite 150 Yardley PA  19007
	 
	 	 	 	 	 	 	 	 
	71.
	 	0105	 	Woodstock Shopping 	 	124 Woodstock Square Avenue,	 	DDRTC Woodstock Square LLC Developers
	 
	 	 	 	Center 	 	Suite 600	 	Diversified Realty Corporation 3300 Enterprise
	 
	 	 	 	 	 	Woodstock, GA 30189	 	Parkway PO Box 228042 Beachwood OH  44122
	 
	 	 	 	 	 	 	 	 
	72.
	 	0106	 	Willow Ridge Plaza	 	720 Route 73 S.	 	Newbridge, LLC  620 Righters Ferry Road  Bala
	 
	 	 	 	 	 	Marlton, NJ 08053	 	Cynwnd PA  19004
	 
	 	 	 	 	 	 	 	 
	73.
	 	0108	 	Desert Ridge Marketplace	 	21001 N Tatum Blvd., Suite 72.	 	Vestar Development II, LLC  2425 E. Camelback
	 
	 	 	 	 	 	Desert Ridge, AZ 85050	 	Road Suite 750 Phoenix AZ  85016
	 
	 	 	 	 	 	 	 	 
	74.
	 	0109	 	Nassau Park Pavilion	 	540 Nassau Park Pavilion, Unit #8	 	Alliance Town Center I, L.P.  P.O. Box 203707
	 
	 	 	 	 	 	Princeton, NJ 08540	 	Houston TX  77216-3707
	 
	 	 	 	 	 	 	 	 
	75.
	 	0110	 	Laguna Gateway-East	 	9141 West Stockton Blvd.	 	Pappas Laguna, LP 5229 Yorkville Place
	 
	 	 	 	 	 	Elk Grove, CA  95758	 	Carmichael CA  95608
	 
	 	 	 	 	 	 	 	 
	76.
	 	0111	 	The Shops at Kildeer	 	20505 N Rand road, Suite 220	 	Shops at Kildeer, LLC  3333 New hyde park Rd.
	 
	 	 	 	 	 	Kildeer, IL 60047	 	New Hyde Park NY  11042
	 
	 	 	 	 	 	 	 	 
	77.
	 	0112	 	Jefferson Pointe	 	4220 W. Jefferson Blvd., Suite 04	 	IMI Jefferson Pointe, LLC  Flimcher Properties
	 
	 	 	 	 	 	Fort Wayne IN 46804	 	Limited Partnership 150 East Gay Street
	 
	 	 	 	 	 	 	 	Columbus OH  43215
	 
	 	 	 	 	 	 	 	 
	78.
	 	0113	 	The Summit at Louisville	 	4292 Summit Plaza Drive	 	Louisville Retail Company, L.L.C. Bayer
	 
	 	 	 	 	 	Louisville KY 40241	 	Properties Inc. 2222 Arlington Ave.
	 
	 	 	 	 	 	 	 	Birmingham AL  35205
	 
	 	 	 	 	 	 	 	 
	79.
	 	0114	 	The River at Rancho	 	71800 Highway 111, Unit A 174	 	Grosvenor The River Retail, LLC PO Box
	 
	 	 	 	 Mirage 	 	Rancho Mirage, CA 92270	 	310010870  Pasadena CA  91110-0870
	 
	 	 	 	 	 	 	 	 
	80.
	 	0115	 	La Jolla Village Square	 	8657 Villa La Jolla Drive, Suite	 	8650 Villa La Jolla, Inc. LJVS Management
	 
	 	 	 	 	 	#119 La Jolla, CA  92037	 	Office 8657 Villa La Jolla Dr., Ste 123  La
	 
	 	 	 	 	 		 	Jolla CA  92037
	 
	 	 	 	 	 	 	 	 
	81.
	 	0116	 	Stacks at the Waterfront	 	105 W. Bridge Street	 	DDRTC Waterfront Town Center LLC Developers
	 
	 	 	 	 	 	Homestead, PA 15160	 	Diversified Realty Corporation 3300 Enterprise
	 
	 	 	 	 	 	 	 	Parkway  Beachwood OH  44122






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	82.
	 	0117	 	Watchung Square Mall	 	1515 Route 22 West, Wuite 22	 	Watchung Square Associates, L.L.C. Fidelity
	 
	 	 	 	 	 	Watchung, New Jersey 07060	 	Management Company 641 Shunpike
Road  Chatham NJ 07928
	 
	 	 	 	 	 	 	 	 
	83.
	 	0118	 	Howe ’Bout Arden 	 	2100 Arden Way, Suite 100	 	Rancho Arden, LP 14903 Via La Senda  Del Mar
	 
	 	 	 	Shopping Center	 	Sacramento CA 95825	 	CA  92014
	 
	 	 	 	 	 	 	 	 
	84.
	 	0119	 	The Plaza at the Pointe	 	162 Quinn Drive	 	Long Meadow Associates Costa Land Company 600
	 
	 	 	 	 	 	Pittsburgh, PA  15275	 	Grant Street Suite 3010 Pittsburgh PA  15219
	 
	 	 	 	 	 	 	 	 
	85.
	 	0120	 	Southdale Center	 	2750 Southdale Center	 	Southdale Limited Partnership  1300 Wilson
	 
	 	 	 	 	 	Edina, MN 55435	 	Boulevard Suite 400 Arlington VA  22209
	 
	 	 	 	 	 	 	 	 
	86.
	 	0121	 	Clybourn Square	 	2754 N. Clybourn Ave., Building A	 	Costco Wholesale Corporation Mid-America Asset
	 
	 	 	 	 	 	Chicago, IL 60614	 	Management One Parkview Plaza 9th Floor
	 
	 	 	 	 	 	 	 	Oakbrook Terrace IL  60181-4731
	 
	 	 	 	 	 	 	 	 
	87.
	 	0122	 	Riverdale Village	 	3583 River Rapids Drive	 	DDR MDT Riverdale Village Inner Ring LLC
	 
	 	 	 	 	 	Coon Rapids, MN 55448	 	Developers Diversified Realty Corporation 3300
	 
	 	 	 	 	 	 	 	Enterprise Parkway P.O. Box 228042 Beachwood
	 
	 	 	 	 	 	 	 	OH  44122
	 
	 	 	 	 	 	 	 	 
	88.
	 	0123	 	Cityplace at the 	 	82 The Promenade	 	RREEF America REIT II Corp. HH RREEF 3340
	 
	 	 	 	Promenade 	 	Edgewater, New Jersey 07020	 	Peachtree Road, NE 2nd Floor Atlanta GA  30326
	 
	 	 	 	 	 	 	 	 
	89.
	 	0124	 	Town Center - 	 	5927 Sunrise Blvd.	 	MP Birdcage Marketplace, LLC LaSalle
	 
	 	 	 	Marketplace at	 	Citrus Heights, CA 95610	 	Investment Management 11501 Dublin Blvd. Suite
	 
	 	 	 	Birdcage 	 	 	 	200 Dublin CA  94568
	 
	 	 	 	 	 	 	 	 
	90.
	 	0125	 	Holmdel Commons	 	2130 Route 35 South	 	Holmdel Commons, LLC Kimco Realty Corporation
	 
	 	 	 	 	 	Holmdel, NJ 07733	 	P.O. Box 5020 3333 New Hyde Park New York NY
	 
	 	 	 	 	 	 	 	11042-0020
	 
	 	 	 	 	 	 	 	 
	91.
	 	0126	 	Crossroads Plaza	 	409 Crossroads Blvd	 	Cary Crossroads (DE), LLC  3290 Northside
	 
	 	 	 	 	 	Cary, NC 27511	 	Parkway Suite 250 Atlanta GA  30327
	 
	 	 	 	 	 	 	 	 
	92.
	 	0127	 	Parkway Plaza	 	600 Ed Noble Parkway	 	Gemini Property Management, LLC  200 Park
	 
	 	 	 	 	 	Norman, OK  73702	 	Avenue South Suite 1305 New York NY  10003
	 
	 	 	 	 	 	 	 	 
	93.
	 	0128	 	Quail Springs MarketPlace	 	2340 W. Memorial Road	 	NP/I&G Quail Springs, LLC Centro Properties
	 
	 	 	 	 	 	Oklahoma City, OK 73134	 	Group 420 Lexington Avenue 7th Floor New York
	 
	 	 	 	 	 	 	 	NY  10170
	 
	 	 	 	 	 	 	 	 
	94.
	 	0129	 	South Park Shopping 	 	3220 Nicholasville Road	 	KIMCO Lexington 140, Inc. Kimco Realty
	 
	 	 	 	Center 	 	Lexington, KY 40503	 	Corporation PO Box 5020 3333 New Hyde Park,
	 
	 	 	 	 	 	 	 	Suite 100 New Hyde Park NY  11042
	 
	 	 	 	 	 	 	 	 
	95.
	 	0130	 	Eastside Market	 	1123 East 71st Street	 	SEAYCO-THF Eastside Market Shops, LLC THF
	 
	 	 	 	 	 	Tulsa, OK 74133	 	Realty Inc. 2127 Innerbelt Business Center
	 
	 	 	 	 	 	 	 	Drive Suite 200 St. Louis MO  63114






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	96.
	 	0131	 	Southroads Shopping 	 	4915 A East 41st Street	 	Southroads, L.L.C. MD Managemement, Inc. 5600
	 
	 	 	 	Center 	 	Tulsa, OK 74135	 	West 95th Street Suite 110 Overland Park KS
	 
	 	 	 	 	 	 	 	662076
	 
	 	 	 	 	 	 	 	 
	97.
	 	0132	 	The Pavilion at La 	 	1905 Calle Barcelona	 	LA Forum Carlsbad, LLC Forum at
	 
	 	 	 	Costa/The	 	Suite 100	 	Carlsbad-Property Operations 45 Ansley Drive
	 
	 	 	 	Forum at Carlsbad 	 	Carlsbad, CA 92009	 	Newnan GA  630263
	 
	 	 	 	 	 	 	 	 
	98.
	 	0133	 	The Shops at Briargate	 	1845 Briargate Parkway	 	CS Lifestyle Ctr, LLC  2650 Thousand Oaks Blvd
	 
	 	 	 	 	 	Suite 380 Hwy. 83	 	Suite 3150 Memphis TN  38118
	 
	 	 	 	 	 	Colorado Springs, CO  80920	 	 
	 
	 	 	 	 	 	 	 	 
	99.
	 	0134	 	Stonecrest Shopping 	 	7844 Rea Road	 	Zenith Investment Grantor Trust  1406 Halsey
	 
	 	 	 	Center 	 	Charlotte, NC 28277	 	Way Suite 110 Carrollton TX  75007
	 
	 	 	 	 	 	 	 	 
	100.
	 	0135	 	El Camino North 	 	2645 Vista Way	 	PK II El Camino North LP 3333 New Hyde Park
	 
	 	 	 	Shopping Center	 	Oceanside, CA 92054	 	Road  New Hyde Park NY  11042
	 
	 	 	 	 	 	 	 	 
	101.
	 	0136	 	The Shoppes at 	 	12181 Elm Creek Blvd	 	Prudential Real Estate Investors  Two
	 
	 	 	 	Arbor Lakes 	 	Maple Grove, MN 55369	 	Prudential Plaza 180 North Stetson Ave., Suite
	 
	 	 	 	 	 	 	 	3275 Chicago IL  60601
	 
	 	 	 	 	 	 	 	 
	102.
	 	0137	 	Village Crossing	 	5485 W. Touhy Avenue	 	DDRTC Village Crossing LLC Developers
	 
	 	 	 	 	 	Skokie, IL 60077	 	Diversified Realty Corporation 3300 Enterprise
	 
	 	 	 	 	 	 	 	Parkway  Beachwood OH  44122
	 
	 	 	 	 	 	 	 	 
	103.
	 	0138	 	Westcliff Plaza	 	10800 Irvine Avenue	 	The Irvine Company Madison Marquette Retail
	 
	 	 	 	 	 	Newport Beach, CA 92660	 	Services, Inc. 5 Jenner Suite 100 Irvine CA
	 
	 	 	 	 	 	 	 	92618-3808
	 
	 	 	 	 	 	 	 	 
	104.
	 	0139	 	Hunt Valley Towne Centre	 	118 Shawan Road, Suite O	 	Hunt Valley Towne Centre, LLC Greenberg
	 
	 	 	 	 	 	Hunt Valley, MD 21030	 	Gimmons Commerical 10096 Red Run Boulevard
	 
	 	 	 	 	 	 	 	Suite 100 Owings Mills MD  21117
	 
	 	 	 	 	 	 	 	 
	105.
	 	0140	 	Rivertree Court	 	701 N. Milwaukee	 	Inland Commercial Property Management, Inc.
	 
	 	 	 	 	 	Suite 200 Vernon Hills, IL 60061	 	2901 Butterfield Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	106.
	 	0141	 	Smoketown Station	 	2890 Prince William Pkwy	 	KIR Smoketown Station, LP 3333 New Hyde Park
	 
	 	 	 	 	 	Woodbridge, VA 22192	 	Road, Suite 100 PO Box 5020 New Hyde Park NY
	 
	 	 	 	 	 	 	 	11042
	 
	 	 	 	 	 	 	 	 
	107.
	 	0142	 	Best Buy Metro Center	 	6575 Frontier Dr., Bldg. E, Ste. A	 	Frontier Drive Metro Center, L.P.  1701
	 
	 	 	 	(Frontier Drive Metro Centre)	 	Springfield, VA 22150	 	Pennsylvania Ave NW Suite 1050
Washington DC 20006
	 
	 	 	 	 	 	 	 	 
	108.
	 	0143	 	Hastings Village Shopping	 	3393 E. Foothill Blvd.	 	Hastings Village Investment Co., LP 6380
	 
	 	 	 	Center	 	Pasadena, CA 91107	 	Wilshire Blvd. Suite 1106 Los Angeles CA
	 
	 	 	 	 	 	 	 	90048
	 
	 	 	 	 	 	 	 	 
	109.
	 	0144	 	The Esplanade Shopping 	 	431 West Esplanade Drive	 	Centro Properties Group Centro Properties
	 
	 	 	 	Center 	 	Oxnard, CA 93036	 	Group 420 Lexington Avenue, 7th floor  New
	 
	 	 	 	 	 	 	 	York NY  10170
	 
	 	 	 	 	 	 	 	 
	110.
	 	0145	 	Glenview Town Center	 	1940 Tower Drive	 	OliverMcMillan Glenview, LLC  733 Eighth
	 
	 	 	 	 	 	Glenview, IL 60025	 	Avenue  San Diego CA  92101






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	111.
	 	0146	 	Chino Spectrum Towne 	 	4041 Grand Ave.	 	Vestar Chino B, L.L.C.  2425 E. Camelback Road
	 
	 	 	 	Center 	 	Chino, CA 91710	 	Suite 750 Phoenix AZ  85016
	 
	 	 	 	 	 	 	 	 
	112.
	 	0147	 	Cotswold Village Shops	 	236 S. Sharon Amity Road	 	Cotswold Center, LLC Steven D. Bell & Company
	 
	 	 	 	 	 	Charlotte, NC  28211	 	300 North N Greene Street Suite 1000
	 
	 	 	 	 	 	 	 	Greensboro NC  27401
	 
	 	 	 	 	 	 	 	 
	113.
	 	0148	 	Hacienda Crossing 	 	4948 Dublin Blvd.	 	Ronald Benderson 1995 Trust  PO Box 823201
	 
	 	 	 	Shopping Center	 	Dublin, CA 94568	 	Philadelphia PA  19182
	 
	 	 	 	 	 	 	 	 
	114.
	 	0149	 	Plaza on Richmond	 	5140 Richmond	 	POR, Inc.  5177 Richmond   Houston TX  77027
	 
	 	 	 	 	 	Houston, TX 77056	 	 
	 
	 	 	 	 	 	 	 	 
	115.
	 	0150	 	Commons at Willowbrook	 	7744 FM. 1960 West	 	The Commons at Willowbrook, Inc. Trammel Crow
	 
	 	 	 	 	 	Houston, TX  77070	 	Company 3050 Post Oak Blvd. Suite 700 Houston
	 
	 	 	 	 	 	 	 	TX  77056
	 
	 	 	 	 	 	 	 	 
	116.
	 	0151	 	Bell Tower Mall	 	13499 S. Cleveland Avenue, Suite	 	Bell Tower Shops, LLC  13499 US 41 SE  Suite
	 
	 	 	 	 	 	301 Ft. Myers, FL 33907	 	151 Fort Myers  FL  33907
	 
	 	 	 	 	 	 	 	 
	117.
	 	0152	 	Waterford Lakes Town 	 	841 Alafaya Trail	 	Simon Property Group, L.P. Simon Property
	 
	 	 	 	Center 	 	Orland, FL 32828	 	Group 225 W. Washignton ST  Indianapolis IN
	 
	 	 	 	 	 	 	 	46204-3438
	 
	 	 	 	 	 	 	 	 
	118.
	 	0153	 	The Plaza at Citrus Park	 	12715 Citrus Park Dr.	 	KIR Tampa 003, LLC Kimco Realty Corporation
	 
	 	 	 	 	 	Tampa, FL 33625	 	P.O. Box 5020 3333 New Hyde Park, Suite 100
	 
	 	 	 	 	 	 	 	New Hyde Park NY  11042
	 
	 	 	 	 	 	 	 	 
	119.
	 	0154	 	Downtown Silver Spring 	 	914 Ellsworth Drive	 	PFA-B Silver Spring, LC  916 Ellsworth Drive
	 
	 	 	 	Springs 	 	Silver Spring, MD 20910	 	Silver Spring  MD  20910
	 
	 	 	 	 	 	 	 	 
	120.
	 	0155	 	Cerritos Towne Center	 	12771 Towne Center Drive	 	Cerritos Towne Center LLC Vestar Property
	 
	 	 	 	 	 	Cerritos, CA 90703	 	Management PO Box 16281 Suite 750 Phoenix AZ
	 
	 	 	 	 	 	 	 	85011-6281
	 
	 	 	 	 	 	 	 	 
	121.
	 	0156	 	West Hollywood Gateway	 	7100 Santa Monica Blvd., Ste. 210	 	CLPF-West Hollywood, L.P.  601 S figueroa
	 
	 	 	 	 	 	West Hollywood, CA 90046	 	Street Suite 3400 Los Anteles CA  90017
	 
	 	 	 	 	 	 	 	 
	122.
	 	0157	 	Palm Valley Pavilions 	 	1450 N. Litchfield	 	PVPW Corp. Heitman Capital Management 191
	 
	 	 	 	West 	 	Goodyear, AZ 85338	 	North Wacker Drive Suite 2500 Chicago IL
	 
	 	 	 	 	 	 	 	60606
	 
	 	 	 	 	 	 	 	 
	123.
	 	0158	 	Victoria Gardens	 	7905 Kew Ave., #5540	 	Rancho Mall, LLC Terminal Tower 50 Public
	 
	 	 	 	 	 	Rancho Cucamonga, CA 91739	 	Square Suite 1100 Cleveland OH  44113-2267
	 
	 	 	 	 	 	 	 	 
	124.
	 	0159	 	Peoria Crossings	 	9280 W. Northern Ave.	 	Inland Western Glendale, LLC  Bldg.#5027 3150
	 
	 	 	 	 	 	Glendale, AZ 85305	 	N. Arizona Ave. Suite 105 Chandler AZ  85225
	 
	 	 	 	 	 	 	 	 
	125.
	 	0160	 	Kendallgate Shopping 	 	12054 SW 88th St.	 	Kendallgate Center Associates, Ltd.  2665 S.
	 
	 	 	 	Center 	 	Miami, FL 33186	 	Bayshore Drive Suite 1200 Coconut Grove FL
	 
	 	 	 	 	 	 	 	33133
	 
	 	 	 	 	 	 	 	 
	126.
	 	0161	 	Pembroke Crossing	 	11850 Pines Boulevard	 	The Prudential Insurance Company of America
	 
	 	 	 	 	 	Pembroke Pines, FL 33026	 	Terranova Corporation 801 Arthur Godfrey Road
	 
	 	 	 	 	 	 	 	Suite 600 Miami Beach FL  33140






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	127.
	 	0162	 	Orlando Square	 	1718 W. Sand Lake road, Suite	 	MSKP Orlando Square, LLC Kitson & Partners
	 
	 	 	 	 	 	C-100 Orlando, FL 32809	 	Realty, LLC 4500 PGA Blvd Suite 400 Palm Beach
	 
	 	 	 	 	 	 	 	Gardens FL  33418
	 
	 	 	 	 	 	 	 	 
	128.
	 	0163	 	Altamonte Mall	 	451 E.  Altamonte Drive, # 1473	 	Altamonte Mall Altamonte Mall Venture 110 N.
	 
	 	 	 	 	 	Altamonte Springs, FL 32701	 	Wacker Dr.  Chicago IL  60606
	 
	 	 	 	 	 	 	 	 
	129.
	 	0164	 	Central Park	 	1696 Carl D. Siver Pkwy.	 	Central Park Marketplace Holdings, LLC
	 
	 	 	 	 	 	Fredericksburg, VA 22401	 	Rappaport Management Company 8405 Greensboro
	 
	 	 	 	 	 	 	 	Drive Suite 830 McLean VA  22102-5121
	 
	 	 	 	 	 	 	 	 
	130.
	 	0165	 	Silverlake Village 	 	3133 Silverlake Village Dr.	 	LMR Silverlake Retail Partners, Ltd. LASCO
	 
	 	 	 	Shopping Center	 	Pearland, TX 77581	 	Development Company 3100 Edloe Suite 270
	 
	 	 	 	 	 	 	 	Houston TX  77027
	 
	 	 	 	 	 	 	 	 
	131.
	 	0166	 	Bella Terra	 	7777 Edinger Avenue, Suite D126,	 	Bella Terra Associates, LLC DJM Capital
	 
	 	 	 	 	 	Huntington Beach, CA 92647	 	Partners 60 S. Market Street Suite 1120 San
	 
	 	 	 	 	 	 	 	Jose CA  95113
	 
	 	 	 	 	 	 	 	 
	132.
	 	0167	 	Congressional Plaza	 	1631 Rockville Pike	 	Congressional Plaza Associates, LLC Federal
	 
	 	 	 	 	 	Rockville, MD 20852	 	Realty Investment Trust 1626 East Jefferson
	 
	 	 	 	 	 	 	 	Street  Rockville MD  20852-4041
	 
	 	 	 	 	 	 	 	 
	133.
	 	0168	 	Fashion Mall Commons	 	8487 Union Chapel Road, Unit 720	 	Fashion Mall Commons I, LP 201 N. Illinois,
	 
	 	 	 	 	 	Indianapolis, IN 46240	 	22nd Floor  Indianapolis IN  46204
	 
	 	 	 	 	 	 	 	 
	134.
	 	0169	 	Monroeville Mall	 	701 Monroeville Mall	 	Monroeville Mall Expansion Co., LP       c/o
	 
	 	 	 	 	 	Monroeville, PA 15146	 	Turnberry Associates                 19501
	 
	 	 	 	 	 	 	 	Biscayne Blvd., Suite 400 Aventura, FL 33180
	 
	 	 	 	 	 	 	 	 
	135.
	 	0170	 	Park Place Mall	 	5870 E. Broadway Blvd., Suite 442	 	GGP-General Growth Properties  110 N Wacker
	 
	 	 	 	 	 	Tucson, AZ  85711	 	Dr.  Chicago IL  60606
	 
	 	 	 	 	 	 	 	 
	136.
	 	0171	 	Chesterfield Towne Center	 	11500 Midlothian Turnpike #800,	 	The Macerich Partnership, L.P. Management
	 
	 	 	 	 	 	Space 206	 	Office 11500 Midlothian Turnpike  Richmond VA
	 
	 	 	 	 	 	Richmond, VA 23235	 	23235
	 
	 	 	 	 	 	 	 	 
	137.
	 	0172	 	Fremont Hub	 	39221 Fremont Hub	 	Fremont Retail Partners, LP Kimco Realty
	 
	 	 	 	 	 	Fremont, CA 94538	 	Corporation 3333 New Hyde Park Road, #100 PO
	 
	 	 	 	 	 	 	 	Box 5020 New Hyde Park NY  11042-0020
	 
	 	 	 	 	 	 	 	 
	138.
	 	0173	 	Tamarack Village 	 	8290 Tamarack Village	 	Tamarack Village Shopping Center Robert Muir
	 
	 	 	 	Shopping Center	 	Woodbury, MN 55125	 	Company 7650 Edinborough Way Suite 375 Edina
	 
	 	 	 	 	 	 	 	MN  55435
	 
	 	 	 	 	 	 	 	 
	139.
	 	0174	 	Colonies Crossroads	 	1927 North Campus Ave.	 	Pacific Development Group Berryman, Dennis
	 
	 	 	 	 	 	Upland, CA 91784	 	One Corporate Plaza, 2nd Flr  Newport Beach CA
	 
	 	 	 	 	 	 	 	92660
	 
	 	 	 	 	 	 	 	 
	140.
	 	0175	 	The Shops and Tanforan	 	1140 El Camino Real #209	 	Tanforan Park Shopping Center, LLC Wattson
	 
	 	 	 	 	 	San Bruno, CA 94066	 	Breevast 3600 Birch Street Suite 250 Newport
	 
	 	 	 	 	 	 	 	Beach CA  92660
	 
	 	 	 	 	 	 	 	 
	141.
	 	0176	 	Surprise Marketplace	 	13707 West Bell Road	 	Surprise Marketplace Holdings, L.C. Kitchell
	 
	 	 	 	 	 	Surprise, AZ 85374	 	Property Management 1707 E. Highland Ave Suite
	 
	 	 	 	 	 	 	 	100 Phoenix AZ  85016






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	142.
	 	0177	 	Brookfield Fashion Center	 	16970 W. Blue Mound Rd., Space 	 	Metropolitan Life Insurance Co Urban Retail
	 
	 	 	 	 	 	210 Brookfield, WI 53005	 	Properties Co., Southridge Mall 16955 W.
	 
	 	 	 	 	 	 	 	Wisconsin Avenue  Brookfield WI  53005
	 
	 	 	 	 	 	 	 	 
	143.
	 	0178	 	Fair City Mall	 	9600 U-Main Street	 	Fair City HHH, LLC
	 
	 	 	 	 	 	Fairfax, VA 22031	 	c/o Urban Retail Properties, Inc. 3222  M.
	 
	 	 	 	 	 	 	 	Street, NW, Suite 140          Washington DC
	 
	 	 	 	 	 	 	 	20007                       with a copy to:
	 
	 	 	 	 	 	 	 	Ruben, Johnson & Morgan, P.C.
	 
	 	 	 	 	 	 	 	249 Pearl Street, Third
	 
	 	 	 	 	 	 	 	Floor           Hartford, CT 06103
	 
	 	 	 	 	 	 	 	 
	144.
	 	0179	 	Gateway Station	 	12864 South Freeway	 	Kimco Burleson L.P. Kimco Realty Corporation
	 
	 	 	 	 	 	Ft. Worth, TX 76028	 	PO Box 5020 3333 New Hyde Park, Suite 100 New
	 
	 	 	 	 	 	 	 	Hyde Park NY  11042
	 
	 	 	 	 	 	 	 	 
	145.
	 	0180	 	Alderwood Parkway Plaza	 	19401 Alderwood Mall Parkway	 	Alderwood Parkway Plaza Limited Partnership
	 
	 	 	 	 	 	Suite 130	 	Coast Real Estate Services 2829 Rucker Ave.
	 
	 	 	 	 	 	Lynnwood, WA  98036	 	Suite 100 Everett WA  98201
	 
	 	 	 	 	 	 	 	 
	146.
	 	0181	 	Renaissance Center at	 	6923 Fayetteville Road	 	CBL-TRS Joint Venture II, LLC Renaissance
	 
	 	 	 	Southpoint	 	Durham, NC  27713	 	Retail, LLC 2030 Hamimlton Place Boulevard
	 
	 	 	 	 	 	 	 	Suite 500 Chattanooga TN  37421-6000
	 
	 	 	 	 	 	 	 	 
	147.
	 	0182	 	Jefferson Commons	 	12551 Jefferson Ave., Suite 121	 	Inland Western Newport News Jefferson, LLC
	 
	 	 	 	 	 	Newport News, VA 23602	 	2901 Butterfield Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	148.
	 	0183	 	SanTan Village Phase II	 	2779 South Market Street	 	Macerich SanTan Phase 2 SPE LLC  PO Box 29383
	 
	 	 	 	 	 	Gilbert, AZ 85295	 	Phoenix AZ  85038-9383
	 
	 	 	 	 	 	 	 	 
	149.
	 	0184	 	Happy Valley Towne Center	 	2501 W. Happy Valley Rd., #38

Phoenix, Arizona 85027	 	Vestar AZ XLVII, LLC  2425 E. Camelback Road,

Suite 750 Phoenix AZ  85016
	 
	 	 	 	 	 	 	 	 
	150.
	 	0185	 	Tempe Marketplace	 	55 S. McClintock Drive, Suite 155	 	Vestar TM-OPCP, LLC Vestar Arizona XLV, LLC
	 
	 	 	 	 	 	Tempe, AZ 85281	 	2425 E. Camelback Road Suite 750 Phoenix AZ
	 
	 	 	 	 	 	 	 	85016
	 
	 	 	 	 	 	 	 	 
	151.
	 	0186	 	Rockaway Town Plaza	 	395 Mt. Hope Road, Suite 450	 	Rockaway Center Associates Simon Property
	 
	 	 	 	 	 	Rockaway, NJ 07866	 	Group 225 W. Washington Street  Indianapolis
	 
	 	 	 	 	 	 	 	IN  46204-3438
	 
	 	 	 	 	 	 	 	 
	152.
	 	0187	 	Prestonwood Town Center	 	5301 Beltline Road, #114	 	Inland American Dallas Prestonwood Limited
	 
	 	 	 	 	 	Dallas, TX  75248	 	Partnership  2901 Butterfield Road  Oak Brook
	 
	 	 	 	 	 	 	 	IL  60523
	 
	 	 	 	 	 	 	 	 
	153.
	 	0188	 	Cedar Hills Crossing	 	3255 SW Cedar Hills Blvd., # 150	 	Desert Troon Companies  17207 N. Perimerter
	 
	 	 	 	 	 	Beaverton, OR 97005	 	Drive Suite 200 Scottsdale AZ  85255
	 
	 	 	 	 	 	 	 	 
	154.
	 	0189	 	The Promenade @ 	 	3951 North Freeway Blvd.	 	CLPF-PROMENADE, L.P. OPUS WEST 
	 
	 	 	 	Sacramento Gateway	 	Sacramento, California  95834	 	MANAGEMENT CORPORATION 3900 Gateway Park Blvd.
	 
	 	 	 	 	 	 	 	Sacramento CA  95834
	 
	 	 	 	 	 	 	 	 
	155.
	 	0190	 	North Hills Village Mall	 	4801 McKnight Road, Room 11	 	J. J. Gumberg Co.  Brinton Executive Center
	 
	 	 	 	 	 	Pittsburgh, PA  15237	 	1051 Brinton Road Pittsburgh PA  15221-4599






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	156.
	 	0191	 	Parkway Super Center	 	17320 Southcenter Pkwy	 	KIR Tukwila L.P. Kimco Realty Corporation PO
	 
	 	 	 	 	 	Tukwila, WA 98188	 	Box 5020 3333 New Hyde Park, Suite 100 New
	 
	 	 	 	 	 	 	 	Hyde Park NY  11042
	 
	 	 	 	 	 	 	 	 
	157.
	 	0192	 	The Shops at Greenridge	 	1125 Woodruff Road, Suite 101	 	Shops at Greenridge, LLC  9415 Sunset Dr Suite
	 
	 	 	 	 	 	Greenville, SC 29607	 	226 Miami FL  33173
	 
	 	 	 	 	 	 	 	 
	158.
	 	0193	 	Mayfaire Town Center	 	840 Inspiration Drive	 	Mayfaire Retail, LLC  6835 Conservation Way
	 
	 	 	 	 	 	Wilmington, NC 28405	 	Wilmington NC  28405
	 
	 	 	 	 	 	 	 	 
	159.
	 	0194	 	Whiteland Towne Center	 	187 West Lincoln Highway, Suite	 	Whiteland Investors, LP
	 
	 	 	 	 	 	200 Exton, PA 19341	 	770 Township Line Road, Ste. 150

Yardley, PA  19067
	 
	 	 	 	 	 	 	 	 
	160.
	 	0195	 	Village at Jordan Creek	 	6805 Mills Civic Pkwy, Suite 110	 	Jordan Creek Town Center
	 
	 	 	 	 	 	West Des Moines, IA 50266	 	GGP Village at Jordan Creek L.L.C.
	 
	 	 	 	 	 	 	 	110 N. Wacker Dr.
	 
	 	 	 	 	 	 	 	Chicago, IL  60606
	 
	 	 	 	 	 	 	 	 
	161.
	 	0196	 	Triangle Town Place	 	3604 Sumner Blvd. Suite 108	 	JG Triangle Peripheral South, LLC
	 
	 	 	 	 	 	Raleigh, NC 27616	 	c/o The Richard E. Jacobs Group, Inc.
	 
	 	 	 	 	 	 	 	25425 Center Ridge Road
	 
	 	 	 	 	 	 	 	Cleveland, OH  44145-4122
	 
	 	 	 	 	 	 	 	 
	162.
	 	0197	 	Olathe Pointe	 	14677 West 119th Space 1	 	Arci Terra Olathe Pointe KS, LLC  2720 East
	 
	 	 	 	 	 	Olathe, Kansas 66062	 	Camelback Road Suite 220 Phoenix AZ  85016
	 
	 	 	 	 	 	 	 	 
	163.
	 	0198	 	Reno South Virginia 	 	6667 South Virginia Street,	 	REA Reno, LLC
	 
	 	 	 	Commons Shopping 	 	Spaces B & C	 	5010 N. Parkway Calabasas, #202
	 
	 	 	 	Center 	 	Reno, NV  89511	 	Calabasas, CA 91302
	 
	 	 	 	 	 	 	 	Taxpayer ID No.: 01-0777385
	 
	 	 	 	 	 	 	 	 
	164.
	 	0199	 	Oracle Wetmore	 	4368 N. Oracle	 	Weingarten Nostat, Inc.
	 
	 	 	 	 	 	Tucson, AZ  85705	 	P.O. Box 201692
	 
	 	 	 	 	 	 	 	Weingarten Realty Investors
	 
	 	 	 	 	 	 	 	Houston, TX  77216-1692
	 
	 	 	 	 	 	 	 	 
	165.
	 	0200	 	Shops at Coconut Point	 	8054 Mediterranean Drive	 	Coconut Point Developers, LLC
	 
	 	 	 	 	 	Estero, FL 33928	 	c/c M.S. Management Associates Inc.
	 
	 	 	 	 	 	 	 	National City Center
	 
	 	 	 	 	 	 	 	115 W. Washington
	 
	 	 	 	 	 	 	 	Indianapolis, IN  46204
	 
	 	 	 	 	 	 	 	 
	166.
	 	0201	 	Mt. Pleasant Towne Center	 	1740 Towne Center Way	 	IMI Mount Pleasant LLC  1850 M Street NW Suite
	 
	 	 	 	 	 	Mt. Pleasant, SC 29464	 	1200 Washington DC  20036
	 
	 	 	 	 	 	 	 	 
	167.
	 	0202	 	Bridgepoint Center	 	3010 Bridgepointe Pkwy.	 	SPI Bridgepointe Partners, LP; RS
	 
	 	 	 	 	 	San Mateo, CA 94404	 	Bridgepointe, LLC & DHV Partners, LLC SPI
	 
	 	 	 	 	 	 	 	Property Management Corp 650 California Street
	 
	 	 	 	 	 	 	 	Suite 1288 San Francisco CA  94108
	 
	 	 	 	 	 	 	 	 
	168.
	 	0203	 	Sparks Crossing	 	117 Los Altos Parkway	 	AIG Baker Sparks, L.L.C.
	 
	 	 	 	 	 	Sparks, NV  89436	 	1701 Lee Branch Lane
	 
	 	 	 	 	 	 	 	Birmingham, AL  35242
	 
	 	 	 	 	 	 	 	 
	169.
	 	0204	 	Logan Town Centre	 	205 Falon Lane	 	AVR Realty Company  1 Executive Boulevard 4th
	 
	 	 	 	 	 	Altoona, PA  16602-6542	 	Floor Yonkers NY  10701
	 
	 	 	 	 	 	 	 	 
	170.
	 	0205	 	Arlington Highlands	 	4000 Retail Connection Way, Suite	 	Arlington Highlands, LTd.  2525 McKinnon St,
	 
	 	 	 	 	 	113 Arlington, TX  76018	 	Suite 700 Dallas TX  75219
	 
	 	 	 	 	 	 	 	 
	171.
	 	0206	 	Sarasota Shopping Center	 	6515 South Tamiami Trail	 	Inland American Sarasota Tamiami, L.L.C.
	 
	 	 	 	 	 	Sarasota, FL 34240	 	Inland American Retail Management, LLC/Bldg
	 
	 	 	 	 	 	 	 	44679 100 Galleria Parkway Suite 1030 Atlanta
	 
	 	 	 	 	 	 	 	GA  30339






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	172.
	 	0207	 	The Forum at the 	 	214 Forum Drive	 	Village at Sandhill, LLC
	 
	 	 	 	Village at Sandhill	 	Columbia, SC 29229	 	PO Box 1608
	 
	 	 	 	 	 	 	 	101 Flintlake Road
	 
	 	 	 	 	 	 	 	Columbia, SC, 29223
	 
	 	 	 	 	 	 	 	 
	173.
	 	0208	 	The District at Tustin 	 	2863 Park Avenue	 	Vestar/Kimco Tustin, L.P.
	 
	 	 	 	Legacy 	 	Tustin, CA 92780	 	P.O. Box 16281
	 
	 	 	 	 	 	 	 	c/o Vestar Property Management
	 
	 	 	 	 	 	 	 	Phoenix, AZ, 85011-6281
	 
	 	 	 	 	 	 	 	 
	174.
	 	0209	 	York Town Center	 	2835 Concord Road	 	York Town Center Holding L.P. c/o
	 
	 	 	 	 	 	York, PA  17402	 	CBL & Associates Management, Inc.
	 
	 	 	 	 	 	 	 	2030 Hamilton Place Boulevard
	 
	 	 	 	 	 	 	 	Chattanooga, TN  37421
	 
	 	 	 	 	 	 	 	Taxpayer ID No.: 20-2806945
	 
	 	 	 	 	 	 	 	 
	175.
	 	0210	 	Brookside Marketplace	 	7350 W. 191st Street	 	Ryan Companies US, Inc.  50 South Tenth Street
	 
	 	 	 	 	 	Tinley Park, IL 60477	 	Suite 300 Minneapolis MN  55403-2012
	 
	 	 	 	 	 	 	 	 
	176.
	 	0211	 	Metropolis	 	301 Metropolis Mile, Suite F120	 	Metropolis I Perm Holding, LLC CB Richard
	 
	 	 	 	 	 	Plainfield, IN 46168	 	Ellis 2499 Futura Park Way Suite 255
	 
	 	 	 	 	 	 	 	Plainfield IN  46168
	 
	 	 	 	 	 	 	 	 
	177.
	 	0212	 	The Crossings at Corona	 	2541 Tuscany Street #103	 	Castle & Cooke Corona Crossings I, Inc.
	 
	 	 	 	 	 	Corona, CA 92881-4189	 	10000 Stockdale Highway
	 
	 	 	 	 	 	 	 	Suite 300
	 
	 	 	 	 	 	 	 	Bakersfield, CA, 93311
	 
	 	 	 	 	 	 	 	 
	178.
	 	0213	 	The Avenue at White 	 	8165-C Honeygo Boulevard	 	NVI-AVENUE, LLC, The Ave at White Marsh
	 
	 	 	 	Marsh Shopping Center	 	Baltimore, MD 21236	 	Business Trust & Fr White Marsh, Inc.
	 
	 	 	 	 	 	 	 	1626 East Jefferson Street
	 
	 	 	 	 	 	 	 	Federal Realty Investment Trust
	 
	 	 	 	 	 	 	 	Rockville, MD, 20852-4041
	 
	 	 	 	 	 	 	 	 
	179.
	 	0214	 	Orange Plaza	 	444 Route 211 East	 	Middletown I Resources L.P.
	 
	 	 	 	 	 	Middletown, NY 10940	 	3 Manhattanville Road
	 
	 	 	 	 	 	 	 	National Realty & Development Corp.
	 
	 	 	 	 	 	 	 	Purchase, NY, 10577-2116
	 
	 	 	 	 	 	 	 	 
	180.
	 	0215	 	Winter Park Village	 	520 N Orlando Ave #110	 	Winter Park Town Center, LTD
	 
	 	 	 	 	 	Winter Park, FL 32789	 	PO Box 73847
	 
	 	 	 	 	 	 	 	Columbus, OH, 44193
	 
	 	 	 	 	 	 	 	 
	181.
	 	0216	 	The Rim	 	17414 La Cantera Parkway, #113	 	Fourth Quarter Properties, LXI, LLP
	 
	 	 	 	 	 	San Antonio, TX 78257	 	45 Ansley Dr.
	 
	 	 	 	 	 	 	 	The Rim-Property Ops.
	 
	 	 	 	 	 	 	 	Newnan, GA, 30265
	 
	 	 	 	 	 	 	 	 
	182.
	 	0217	 	Hunters Square	 	30837 Orchard Lake Road	 	RLV Hunter’s Square LP
	 
	 	 	 	 	 	Farmington Hills, MI 48334	 	Dept. 152001
	 
	 	 	 	 	 	 	 	PO Box 67000
	 
	 	 	 	 	 	 	 	Detroit, MI, 48267-1520
	 
	 	 	 	 	 	 	 	 
	183.
	 	0219	 	Cross Pointe Centre	 	5075 Morganton Rd.	 	DDR Cross Pointe Centre LLC %Developers
	 
	 	 	 	 	 	Fayetteville, NC 28314	 	Diversified Realty Corporation 3300 Enterprise
	 
	 	 	 	 	 	 	 	Parkway  Beachwood OH  44122
	 
	 	 	 	 	 	 	 	 
	184.
	 	0220	 	Cumming Town Center	 	2295 Market Place Blvd.	 	Cole MT Cumming Ga, LLC  2555 East Camelback
	 
	 	 	 	 	 	Cumming, GA 30040	 	Road 400 Phoenix AZ  85016
	 
	 	 	 	 	 	 	 	 
	185.
	 	0221	 	Marketplace on First	 	4651 1st Avenue SE	 	Marketplace on First LLC
	 
	 	 	 	 	 	Suite 3 Cedar Rapids, IA 52403	 	116 Third Street SE
	 
	 	 	 	 	 	 	 	Cedar Rapids, IA, 52401
	 
	 	 	 	 	 	 	 	 
	186.
	 	0222	 	Abercorn Common	 	8108 Abercorn Street	 	Abercorn Common, LLP
	 
	 	 	 	 	 	Suite 310 Savannah, GA 31406	 	114 Barnard Street
	 
	 	 	 	 	 	 	 	Suite 2B
	 
	 	 	 	 	 	 	 	Savannah, GA, 31401






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	187.
	 	0223	 	The District at Howell Mill	 	1801 Howell Mill Road, Suite 240	 	The District at Howell Mill, LLC
	 
	 	 	 	 	 	Atlanta, GA  30318	 	c/o Selig Enterprises, Inc.
	 
	 	 	 	 	 	 	 	1100 Spring Street Northwest
	 
	 	 	 	 	 	 	 	Suite 550
	 
	 	 	 	 	 	 	 	Atlanta, GA  30309-2848
	 
	 	 	 	 	 	 	 	Taxpayer ID No.: 31-1842891
	 
	 	 	 	 	 	 	 	 
	188.
	 	0225	 	Superstition Gateway West	 	1614 S. Signal Butte Road	 	DTD-Devco BW, LLC
	 
	 	 	 	 	 	Mesa, AZ  85209	 	17207 N Perimeter Dr, Suite 200
	 
	 	 	 	 	 	 	 	Scottsdale, AZ 85255
	 
	 	 	 	 	 	 	 	Attn: Tim Dollander
	 
	 	 	 	 	 	 	 	(430) 947-8800
	 
	 	 	 	 	 	 	 	 
	189.
	 	0226	 	The Forum at Ashley Park	 	338 Newnan Crossing Bypass	 	Fourth Quarter Properties XLI, LLC
	 
	 	 	 	 	 	Newnan, GA 30265	 	PO Box 933380
	 
	 	 	 	 	 	 	 	Atlanta, GA, 31193-3380
	 
	 	 	 	 	 	 	 	(678) 423-5445
	 
	 	 	 	 	 	 	 	 
	190.
	 	0227	 	Arroyo Market	 	7265 Arroyo Crossing Parkway	 	Rainbow Arroyo Commons LLC  1770 North 
	 
	 	 	 	 	 	Suite 110 Las Vegas, NV 89113	 	Buffalo Suite 101 Las Vegas NV  89128
	 
	 	 	 	 	 	 	 	 
	191.
	 	0228	 	Lake Pleasant Towne 	 	10084 W. Happy Valley Parkway	 	Vestar Arizona XLVIII,L.L.C.
	 
	 	 	 	Center 	 	Peoria, AZ 85383	 	2425 E. Camelback Road
	 
	 	 	 	 	 	 	 	Suite 750
	 
	 	 	 	 	 	 	 	Phoenix, AZ, 85016
	 
	 	 	 	 	 	 	 	602-866-0900
	 
	 	 	 	 	 	 	 	 
	192.
	 	0229	 	Winter Garden Village at	 	3203 Daniels Road	 	Cole MT Winter Garden FL, LLC  2555 East
	 
	 	 	 	Fowler Groves	 	Winter Garden, FL 34787	 	Camelback Road, Suite 400 Phoneix AZ  85016
	 
	 	 	 	 	 	 	 	 
	193.
	 	0230	 	Cameron Crossing 	 	1751 N. Central Expressway, Bldg	 	Covington Cameron Crossing Acquisition LLC
	 
	 	 	 	Shopping Center	 	G #100 McKinney, TX 75070	 	S. Wacker Drive
	 
	 	 	 	 	 	 	 	Suite 2750
	 
	 	 	 	 	 	 	 	Chicago, IL, 60606
	 
	 	 	 	 	 	 	 	 
	194.
	 	0231	 	Mooresville Crossing	 	609 River Highway	 	Mooresville Crossing, LP Kimco Realty
	 
	 	 	 	 	 	Mooresville, NC 28117	 	Corporation 3333 New Hyde Park Road PO Box
	 
	 	 	 	 	 	 	 	5020 New Hyde Park NY  11042-0020
	 
	 	 	 	 	 	 	 	 
	195.
	 	0232	 	Canyon West	 	6070 Marsha Sharp Freeway	 	Canyon Hub Holdings, L.P. De la Vega Group
	 
	 	 	 	 	 	Lubbock, TX 79407	 	3131 McKinney Ave Suite 400 Dallas TX  75204
	 
	 	 	 	 	 	 	 	 
	196.
	 	0233	 	Columbia Crossing	 	16521 SE Mill Plain Blvd., 8A	 	Columbia Tech Center, L.L.C. c/o
	 
	 	 	 	 	 	Vancouver, WA  98684	 	Pacific Realty Associates, L.P.
	 
	 	 	 	 	 	 	 	15350 S.W. Sequoia Parkway,
	 
	 	 	 	 	 	 	 	Suite 300
	 
	 	 	 	 	 	 	 	Portland, Oregon 97224
	 
	 	 	 	 	 	 	 	Attn:  Legal Department
	 
	 	 	 	 	 	 	 	(503) 624-6300
	 
	 	 	 	 	 	 	 	Taxpayer ID No.:  93-1219363
	 
	 	 	 	 	 	 	 	 
	197.
	 	0234	 	The Shops at Fox River	 	3206 Shoppers Drive	 	DDR McHenry Square, LLC
	 
	 	 	 	 	 	McHenry , IL 60050	 	3300 Enterprise Parkway
	 
	 	 	 	 	 	 	 	Developers Diversified Realty Corporation
	 
	 	 	 	 	 	 	 	Beachwood, OH, 44122
	 
	 	 	 	 	 	 	 	 
	198.
	 	0235	 	Gateway Overlook	 	8241 Gateway Overlook Drive	 	GATEWAY OVERLOOK
	 
	 	 	 	 	 	Elkridge, MD 21075	 	110 N. Wacker Drive
	 
	 	 	 	 	 	 	 	HAWARD RESEARCH AND DEVELOPMENT CORPORATION
	 
	 	 	 	 	 	 	 	Chicago, IL, 60606






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	199.
	 	0236	 	Ft. Smith Pavilion	 	3985 Phoenix Ave	 	Fort Smith Pavilion, LLC
	 
	 	 	 	 	 	Fort Smith, AR 72903	 	14100 San Pedro
	 
	 	 	 	 	 	 	 	Suite 310
	 
	 	 	 	 	 	 	 	San Antonio, TX, 78232
	 
	 	 	 	 	 	 	 	 
	200.
	 	0238	 	Green Oak Village Place	 	9830 Village Place Blvd.	 	Green Oak Village Place, LLC
	 
	 	 	 	 	 	Brighton, MI  48116	 	One Town Square
	 
	 	 	 	 	 	 	 	Southfield, MI 48076
	 
	 	 	 	 	 	 	 	Attn: Christopher G. Broehert
	 
	 	 	 	 	 	 	 	Tel: 248-737-4041
	 
	 	 	 	 	 	 	 	Fax:  248-737-5198
	 
	 	 	 	 	 	 	 	 
	201.
	 	0239	 	Fair Lakes Center	 	13048 A  Fair Lakes Center	 	Fair Lakes Center Associates L.P.
	 
	 	 	 	 	 	Fairfax, VA 22033	 	12500 Fair Lakes Circle
	 
	 	 	 	 	 	 	 	Peterson Companies
	 
	 	 	 	 	 	 	 	Suite 430
	 
	 	 	 	 	 	 	 	Fairfax, VA, 22033
	 
	 	 	 	 	 	 	 	 
	202.
	 	0240	 	Wrangleboro Consumer 	 	214 Consumer Square	 	Benderson-Wainberg Associates, LP
	 
	 	 	 	Square 	 	Mays Landing, NJ 08330	 	3300 Enterprise Pkwy
	 
	 	 	 	 	 	 	 	Beachwood, OH, 44122
	 
	 	 	 	 	 	 	 	 
	203.
	 	0241	 	University Commons	 	1461-B University Drive	 	CASTO
	 
	 	 	 	 	 	Burlington, NC 27215	 	191 W. Nationwide Blvd
	 
	 	 	 	 	 	 	 	Suite 200
	 
	 	 	 	 	 	 	 	Columbus, OH, 43215-2568
	 
	 	 	 	 	 	 	 	 
	204.
	 	0242	 	The Villages At University	 	8720-5 J.W. Clay Blvd	 	CS University Place II, LLC
	 
	 	 	 	Place (District II)	 	Charlotte, NC 28262	 	PO Box 1450
	 
	 	 	 	 	 	 	 	CASTO
	 
	 	 	 	 	 	 	 	Columbus, OH, 43215
	 
	 	 	 	 	 	 	 	 
	205.
	 	0243	 	Southland Mall	 	20505 South Dixie Highway, Space	 	Gumberg Asset Management Inc.
	 
	 	 	 	 	 	605 Miami, FL 33189	 	20505 South Dixie Highway
	 
	 	 	 	 	 		 	Space 605
	 
	 	 	 	 	 	 	 	Miami, FL, 33189
	 
	 	 	 	 	 	 	 	 
	206.
	 	0244	 	Grand Plaza	 	185 South Las Posas Road	 	Grand Plaza, LLC World Premier Investments
	 
	 	 	 	 	 	San Marcos, CA 92078	 	5190 Campus Drive  Newport Beach CA  92660
	 
	 	 	 	 	 	 	 	 
	207.
	 	0245	 	Prairie Market Shopping 	 	2510 Route 34	 	KDR-Oswego Associates, L.P.
	 
	 	 	 	Center 	 	Oswego, IL 60543	 	2215 Bannister Lane
	 
	 	 	 	 	 	 	 	KDR-Oswego Associates, L.L.C
	 
	 	 	 	 	 	 	 	Aurora, IL, 60504
	 
	 	 	 	 	 	 	 	 
	208.
	 	0246	 	Silver Spring Square	 	6416 Carlisle Pike Suite 2300	 	RRP Operating, LP  PO Box 822823  Philadelphia
	 
	 	 	 	 	 	Mechanicsburg, PA 17050	 	PA  19182-2823
	 
	 	 	 	 	 	 	 	 
	209.
	 	0247	 	The Shoppes at Isla Verde	 	1020 State Road 7	 	Shoppes at Isla Verde, Ltd.
	 
	 	 	 	 	 	Wellington, FL 33414	 	6400 North Andrews Avenue
	 
	 	 	 	 	 	 	 	Suite 500
	 
	 	 	 	 	 	 	 	Fort Lauderdale, FL, 33309
	 
	 	 	 	 	 	 	 	 
	210.
	 	0248	 	Naperville Main Street	 	103 South Washington Street	 	Washington Place Naper, LLC
	 
	 	 	 	 	 	Suite 109	 	729 Montana Avenue
	 
	 	 	 	 	 	Naperville, IL 60540	 	Norman A. Rubin & Associates
	 
	 	 	 	 	 	 	 	Suite 7
	 
	 	 	 	 	 	 	 	Santa Monica, CA, 90403
	 
	 	 	 	 	 	 	 	 
	211.
	 	0249	 	Lincoln Road	 	337 Lincoln Road	 	CLR Lincoln Associates, LLC
	 
	 	 	 	 	 	Miami Beach, FL 33139	 	Rand real Estate Services, Inc.
	 
	 	 	 	 	 	 	 	PO Box 2870
	 
	 	 	 	 	 	 	 	Westport, CT 06880
	 
	 	 	 	 	 	 	 	 
	212.
	 	0250	 	Fayette Pavilion, Phase I	 	110 A Pavilion Pkwy	 	DDRTC Fayette pavilion I and II LLC
	 
	 	 	 	 	 	Fayetteville, GA 30214	 	3300 Enterprise Parkway
	 
	 	 	 	 	 	 	 	Developers Diversified Realty Corporation
	 
	 	 	 	 	 	 	 	Beachwood, OH, 44122
	 
	 	 	 	 	 	 	 	 
	213.
	 	0251	 	Beaver Creek Crossing	 	1521 Beaver Creek Commons 	 	DDR/1st Carolina Crossings South LLC
	 
	 	 	 	 	 	Drive #201	 	3300 Enterprise Parkway
	 
	 	 	 	 	 	Apex, NC 27502	 	Developers Diversified Realty Corporation
	 
	 	 	 	 	 	 	 	Beachwood, OH, 44122






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	214.
	 	0252	 	Harvest Junction North	 	210 Ken Prat Boulevard	 	Panattoni Development Company, LLC
	 
	 	 	 	 	 	Longmont, CO 80501	 	4601 DTC Blvd
	 
	 	 	 	 	 	 	 	Panattoni Development Company, LLC
	 
	 	 	 	 	 	 	 	Suite 650
	 
	 	 	 	 	 	 	 	Denver, CO, 80237
	 
	 	 	 	 	 	 	 	 
	215.
	 	0253	 	The Grove at Wesley 	 	5953 Wesley Grove Blvd	 	Oakley Grove Development, LLC Ben Carter
	 
	 	 	 	Chapel 	 	Wesley Chapel, FL 33543	 	Properties, LLC Two Buckhead Plaza 3050
	 
	 	 	 	 	 	 	 	Peachtree Road, NW  Suite 300 Atlanta GA
	 
	 	 	 	 	 	 	 	30305
	 
	 	 	 	 	 	 	 	 
	216.
	 	0254	 	The Avenue at Murfreesboro 	 	2615 Medical Center Parkway #800 Murfreesboro, TN 37129	 	Cousins Properties Incorporated 2500 Windy ridge Parkway
	 
	 	 	 		 		 	Atlanta, GA, 30339
	 
	 	 	 	 	 	 	 	 
	217.
	 	0255	 	N/A	 	1655 County Rd B-2 West	 	WilCal Crossroads, LLC
	 
	 	 	 	 	 	Roseville, MN 55113	 	c/o M & J Wilkow Properties, LLC
	 
	 	 	 	 	 	 	 	180 N. Michigan Avenue, Suite 200
	 
	 	 	 	 	 	 	 	Chicago, Illinois  60601
	 
	 	 	 	 	 	 	 	Attn: Marc R. Wilkow
	 
	 	 	 	 	 	 	 	 
	218.
	 	0256	 	The Southlands	 	24101 E. Orchard Rd., Unit D	 	Southlands Tower LLC
	 
	 	 	 	 	 	Aurora, CO 80016	 	5460 S. Quebec Street
	 
	 	 	 	 	 	 	 	Suite 100
	 
	 	 	 	 	 	 	 	Greenwood Village, CO, 80111
	 
	 	 	 	 	 	 	 	 
	219.
	 	0257	 	Baldwin Commons 	 	4830 Baldwin	 	Baldwin Commons LLC
	 
	 	 	 	Shopping Center	 	Orion Township, MI 48359	 	101 W. Big Beaver Road
	 
	 	 	 	 	 	 	 	Columbia Center II
	 
	 	 	 	 	 	 	 	Suite 200
	 
	 	 	 	 	 	 	 	Bloomfield, MI, 48084-5255
	 
	 	 	 	 	 	 	 	 
	220.
	 	0258	 	Nyberg Woods	 	7081 SW Nyberg Street	 	Nyberg CenterCal, LLC
	 
	 	 	 	 	 	Tualatin, OR 97062	 	7455 SW Bridgeport Road
	 
	 	 	 	 	 	 	 	CenterCal Properties, LLC
	 
	 	 	 	 	 	 	 	#205
	 
	 	 	 	 	 	 	 	Tigard, OR, 97224
	 
	 	 	 	 	 	 	 	 
	221.
	 	0259	 	Conroe Marketplace 	 	2928 I-45 North	 	Conroe Marketplace S.C, L.P.
	 
	 	 	 	Shopping Center	 	Conroe, TX 77303	 	3333 New Hyde Park Road
	 
	 	 	 	 	 	 	 	Kimco Realty Corporation
	 
	 	 	 	 	 	 	 	PO Box 5020
	 
	 	 	 	 	 	 	 	New Hyde Park, NY, 11042-0020
	 
	 	 	 	 	 	 	 	 
	222.
	 	0260	 	Empire Center	 	1351 N. Victory Place	 	Providence Burbank I, LLC
	 
	 	 	 	 	 	Burbank, CA 91502	 	2443 East Coast Highway
	 
	 	 	 	 	 	 	 	Corona del Mar, CA, 92625
	 
	 	 	 	 	 	 	 	 
	223.
	 	0261	 	Waterside Marketplace	 	50523 Waterside Drive	 	Waterside Marketplace, LLC
	 
	 	 	 	 	 	Chesterfield Township, MI 48051	 	One Towne Square
	 
	 	 	 	 	 	 	 	Suite 1600
	 
	 	 	 	 	 	 	 	Southfield, MI, 48076
	 
	 	 	 	 	 	 	 	 
	224.
	 	0262	 	Columbus Park Crossing 	 	5550 Whittlesey Road, Suite 600	 	Columbus Park Crossing South, LLC
	 
	 	 	 	South 	 	Columbus, GA 31909	 	950 East Paces Ferry road
	 
	 	 	 	 	 	 	 	Ben Carter Properties, LLC
	 
	 	 	 	 	 	 	 	Suite 900
	 
	 	 	 	 	 	 	 	Atlanta, GA, 30326
	 
	 	 	 	 	 	 	 	 
	225.
	 	0263	 	The Village at Dayton 	 	2700 Miamisburg-Centerville Road	 	Dayton Mall Venture, LLC
	 
	 	 	 	Mall 	 	#864 Dayton, OH 45459	 	150 East Gay Street
	 
	 	 	 	 	 		 	24th Floor
	 
	 	 	 	 	 	 	 	Columbus, OH, 43215
	 
	 	 	 	 	 	 	 	 
	226.
	 	0264	 	L Street Marketplace	 	12430 K Plaza	 	L Street Marketplace, LLC  17110 Marcy Street
	 
	 	 	 	 	 	Omaha, NE 68137	 	Suite 1 Omaha NE  68118
	 
	 	 	 	 	 	 	 	 
	227.
	 	0265	 	Horsham Gate	 	100 Welsh Road Suite 102	 	Horsham Realty Partners LP & Garden Fair
	 
	 	 	 	 	 	Horsham, PA 19044	 	Realty Associates
	 
	 	 	 	 	 	 	 	Goodman Properties
	 
	 	 	 	 	 	 	 	636 Old York Road 2nd Floor
	 
	 	 	 	 	 	 	 	Jenkintown, PA 19046






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	228.
	 	0266	 	The Commons at South 	 	10409 South State Street	 	WM Acquisition, L.C.
	 
	 	 	 	Towne 	 	Sandy, UT 84070	 	1165 East Wilmington Avenue
	 
	 	 	 	 	 	 	 	Suite 275
	 
	 	 	 	 	 	 	 	Salt Lake City, UT, 84106
	 
	 	 	 	 	 	 	 	 
	229.
	 	0267	 	Alpine Summit Shopping 	 	3165 Alpine Avenue	 	Geenen DeKock Properties, LLC
	 
	 	 	 	Center 	 	Suite B	 	12 West 8th Street
	 
	 	 	 	 	 	Walker, MI 49544	 	Suite 250
	 
	 	 	 	 	 	 	 	Holland, MI, 49423
	 
	 	 	 	 	 	 	 	 
	230.
	 	0268	 	Vintage Commons	 	3900 Sisk Road	 	Keystone Property Associates, LLC 225
	 
	 	 	 	 	 	Modesto, Ca 95356	 	Greenfield Parkway Suite 102 Liverpool, NY
	 
	 	 	 	 	 	 	 	13088
	 
	 	 	 	 	 	 	 	 
	231.
	 	0269	 	The Promenade 	 	641 E. Boughton Road, Suite 100	 	Terminal Tower
	 
	 	 	 	Bolingbrook 	 	Bolingbrook, IL 60440	 	50 Public Square
	 
	 	 	 	 	 	 	 	Suite 1360
	 
	 	 	 	 	 	 	 	Cleveland, OH, 44113-2267
	 
	 	 	 	 	 	 	 	 
	232.
	 	0270	 	Plaza at Rockwall	 	999 East I.H. 30	 	CNLRS Rockwall, L.P.
	 
	 	 	 	 	 	Rockwall, TX 75087	 	450 South Orange Avenue
	 
	 	 	 	 	 	 	 	National Retail Properties, Inc.
	 
	 	 	 	 	 	 	 	Suite 900
	 
	 	 	 	 	 	 	 	Orlando, FL, 32801
	 
	 	 	 	 	 	 	 	 
	233.
	 	0271	 	Southpark Meadows 	 	9500 South IH 35 Service Road SB	 	SP Meadows Central, Ltd.
	 
	 	 	 	Shopping Center	 	Building I, Unit 100  512-292-1784	 	1209 West 5th Street
	 
	 	 	 	 	 	Austin, TX 78748	 	Endeavor Real Estate Group
	 
	 	 	 	 	 	 	 	Suite 200
	 
	 	 	 	 	 	 	 	Austin, TX, 78703
	 
	 	 	 	 	 	 	 	 
	234.
	 	0272	 	The Landing at Tradition	 	10740 SW Village Parkway	 	Inland Diversified Real Estate Services,
	 
	 	 	 	 	 	Port Saint Lucie, FL 34987	 	LLC?Bldg #65006  2901 Butterfield Road  Oak
	 
	 	 	 	 	 	 	 	Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	235.
	 	0273	 	Bridgewater Falls	 	3347 Princeton Road	 	Bridewater Falls Station  11501 Northlake
	 
	 	 	 	 	 	Hamilton , OH 45011	 	Drive  Cincinnati OH  45249
	 
	 	 	 	 	 	 	 	 
	236.
	 	0274	 	The Plaza at Southpark	 	16640 Royalton Road	 	VAM, LTD.
	 
	 	 	 	 	 	Strongsville, OH 44136	 	c/o Visconsi companies, Ltd.
	 
	 	 	 	 	 	 	 	30050 Chagrin Blvd
	 
	 	 	 	 	 	 	 	Suite #360
	 
	 	 	 	 	 	 	 	Pepper Pike, OH 44124
	 
	 	 	 	 	 	 	 	 
	237.
	 	0275	 	Robertson’s Corner	 	5801 Long Prairie Road, Suite 150	 	Robertson’s Creek 1031, LLC Inland Continental
	 
	 	 	 	 	 	Flower Mound, TX 75028	 	Property Management Corp. 2901 Butterfield
	 
	 	 	 	 	 	 	 	Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	238.
	 	0276	 	Coastal Grand Mall	 	710 Coastal Grand Circle	 	CBL & Associates Management, Inc
	 
	 	 	 	 	 	Myrtle Beach, SC 29577	 	2030 Hamilton Place Boulevard
	 
	 	 	 	 	 	 	 	CBL Center, Suite 500
	 
	 	 	 	 	 	 	 	Chattanooga, TN, 37421-6000
	 
	 	 	 	 	 	 	 	 
	239.
	 	0277	 	The Exchange at 	 	1804 South Randall Rd.	 	In Retail Fund Algonquin Commons, LLC
	 
	 	 	 	Algonquin Commons	 	Algonquin, IL 60102	 	1125 Paysphere Circle
	 
	 	 	 	 	 	 	 	Chicago, IL, 60674
	 
	 	 	 	 	 	 	 	 
	240.
	 	0278	 	Westgate Plaza	 	2814 S. Soncy Road	 	KIR Amarillo, LP (#278)
	 
	 	 	 	 	 	Amarillo, TX 79124	 	3333 New Hyde Park Road
	 
	 	 	 	 	 	 	 	New Hyde Park, NY, 11042
	 
	 	 	 	 	 	 	 	 
	241.
	 	0279	 	The Plant	 	31 Curtner Avenue	 	WPV San Jose, LLC Westrust Ventures, LLC 2535
	 
	 	 	 	 	 	San Jose, CA  95125	 	Townsgate Road Suite 310 Westlake Village CA
	 
	 	 	 	 	 	 	 	91361
	 
	 	 	 	 	 	 	 	 
	242.
	 	0280	 	Westgate Marketplace	 	6417 SW 3rd Street	 	Westgate Marketplace Developers, LLC
	 
	 	 	 	 	 	Oklahoma City, OK 73127	 	6400 W. Reno
	 
	 	 	 	 	 	 	 	Oklahoma City, OK, 73127






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	243.
	 	0281	 	Northgate Shopping 	 	401 NE Northgate Way	 	Northgate Mall Partnership
	 
	 	 	 	Center 	 	Suite 1110	 	225 West Washington Street
	 
	 	 	 	 	 	Seattle, WA 98125	 	M.S. Management Associates Inc.
	 
	 	 	 	 	 	 	 	Indianapolis, IN, 46204
	 
	 	 	 	 	 	 	 	 
	244.
	 	0282	 	University Town Center	 	103 North Cattlemen Road	 	SIPOC Associates TIC
	 
	 	 	 	 	 	Sarasota, FL 34232	 	8441 Cooper Creek Boulevard
	 
	 	 	 	 	 	 	 	University Park, FL, 34201
	 
	 	 	 	 	 	 	 	 
	245.
	 	0284	 	Towne Place at Garden 	 	907 Haddonfield Road, Suite A	 	Cherry Hill Towne Center Partners, LLC
	 
	 	 	 	State Park	 	Cherry Hill, NJ 08002	 	c/o Edgewood Properties
	 
	 	 	 	 	 	 	 	1260 Stelton Road
	 
	 	 	 	 	 	 	 	Piscataway, NJ  08854
	 
	 	 	 	 	 	 	 	 
	246.
	 	0285	 	Canton Marketplace	 	1810 Cumming Hwy, Suite 640	 	GLL Selection II Georgia, LP
	 
	 	 	 	 	 	Canton, GA 30114	 	GLL Real Estate Partners
	 
	 	 	 	 	 	 	 	200 South Orange Avenue Suite 1920
	 
	 	 	 	 	 	 	 	Orlando, FL 32801
	 
	 	 	 	 	 	 	 	 
	247.
	 	0286	 	Villagio Shopping Center	 	7911 N Blackstone Ave	 	Villagio Shopping Center, LLC
	 
	 	 	 	 	 	Fresno, CA 93720	 	80 Iron Point Circle
	 
	 	 	 	 	 	 	 	Suite 100
	 
	 	 	 	 	 	 	 	Folsom, CA, 95630
	 
	 	 	 	 	 	 	 	 
	248.
	 	0287	 	North Haven Commons	 	370 N Universal Drive	 	August America, LLC  401 South Barrington  100
	 
	 	 	 	 	 	North Haven, CT 06473	 	Los Angeles CA  90049
	 
	 	 	 	 	 	 	 	 
	249.
	 	0288	 	Burhaven Mall	 	830 West County Road 42	 	CEC Burnhaven LLC, WEP Burnhaven, LLC, PMJ
	 
	 	 	 	 	 	Burnsville, MN 55337	 	Burnhaven LLC & FPH Burnhavent LLC Anderson
	 
	 	 	 	 	 	 	 	Property Management 6205 Parkwood Road  Edina
	 
	 	 	 	 	 	 	 	MN  55436
	 
	 	 	 	 	 	 	 	 
	250.
	 	0289	 	The Village at Colony 	 	188 Colony Place	 	Colony Place Development , LLC
	 
	 	 	 	Place 	 	Plymouth, MA 02360	 	200 Oak Point Drive
	 
	 	 	 	 	 	 	 	Middleborough, MA, 02436
	 
	 	 	 	 	 	 	 	 
	251.
	 	0290	 	Dothan Pavilion	 	4401 Montgomery Hwy., #500	 	Fourth Quarter Properties 91, LLC
	 
	 	 	 	 	 	Dothan, AL 36303	 	45 Ansley Drive
	 
	 	 	 	 	 	 	 	Newnan, GA, 30263
	 
	 	 	 	 	 	 	 	 
	252.
	 	0291	 	Westgate Mall	 	3181 Westgate	 	Westgate Mall, LLC
	 
	 	 	 	 	 	Anchor F	 	25425 Center Ridge Road
	 
	 	 	 	 	 	Fairview Park, OH 44126	 	Westlake, OH, 44145
	 
	 	 	 	 	 	 	 	 
	253.
	 	0292	 	Shadow Lake Towne 	 	7701 Towne Center Parkway	 	Shadow Lake Towne Center, LLC
	 
	 	 	 	Center 	 	Papillon, NE 68046	 	6263 North Scottsdale Road
	 
	 	 	 	 	 	 	 	Suite 330
	 
	 	 	 	 	 	 	 	Scottsdale, AZ, 85250
	 
	 	 	 	 	 	 	 	 
	254.
	 	0293	 	University Park Mall	 	6501 N. Grape Road	 	University Park Mall, LLC M.S.Management
	 
	 	 	 	 	 	Mishawaka, IN 46545	 	Associates Inc. 225 W. Washington
	 
	 	 	 	 	 	 	 	Indianapolis IN  46204
	 
	 	 	 	 	 	 	 	 
	255.
	 	0294	 	Manchester Highlands	 	121 Highlands Blvd. Drive	 	Pace-Highlands Associates, L.L.C.
	 
	 	 	 	 	 	Manchester, MO 63011	 	1401 South Brentwood Boulevard
	 
	 	 	 	 	 	 	 	Suite 900
	 
	 	 	 	 	 	 	 	St. Louis, MO, 63144
	 
	 	 	 	 	 	 	 	 
	256.
	 	0295	 	Oakleaf Town Center	 	Oakleaf Town Center	 	Argyle Forest Retail I, LLC The Sebler Company
	 
	 	 	 	 	 	9625 Crosshill Blvd.	 	PO Box 41847  St. Petersburg FL  33743-1847
	 
	 	 	 	 	 	Jacksonville, FL 32222	 	 
	 
	 	 	 	 	 	 	 	 
	257.
	 	0296	 	The Promenade at 	 	1004 N. Promenade Parkway	 	WP Casa Grande Retail L.L.C. The Promenade at
	 
	 	 	 	Casa Grande 	 	Suite 136	 	Casa Grande PO Box 29667  Phoenix AZ
	 
	 	 	 	 	 	Casa Grande, AZ 85222	 	85038-9667
	 
	 	 	 	 	 	 	 	 
	258.
	 	0297	 	Pier Park	 	15565 Starfish Street	 	Simon Property Group, LP
	 
	 	 	 	 	 	Suite 110	 	225 West Washington
	 
	 	 	 	 	 	Panama City Beach, FL 32413	 	M.S. Management Associates Inc
	 
	 	 	 	 	 	 	 	Indianapolis, IN, 46204






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	259.
	 	0298	 	EastChase Market Center	 	EastChase Parkway	 	EastChase Market Center, LLC
	 
	 	 	 	 	 	7981 Eastchase Parkway	 	2660 EastChase lane
	 
	 	 	 	 	 	Montgomery, AL 36117	 	Suite 100
	 
	 	 	 	 	 	 	 	Montgomery, AL, 36117-7024
	 
	 	 	 	 	 	 	 	 
	260.
	 	0299	 	North Attleboro 	 	1360 S. Washington Street, Unit 1	 	North Attleboro Marketplace II LLC
	 
	 	 	 	Marketplace II 	 	North Attleborough, MA 02760	 	1414 Atwood Ave
	 
	 	 	 	 	 	 	 	Johnston, RI, 02919
	 
	 	 	 	 	 	 	 	 
	261.
	 	0300	 	Market Heights	 	201 E. Central Texas Expressway	 	Market Heights, Ltd.
	 
	 	 	 	 	 	Suite 400 Harker Heights, TX 76548	 	2001 Ross Avenue
	 
	 	 	 	 	 	 	 	Suite 4601
	 
	 	 	 	 	 	 	 	Dallas, TX, 75201
	 
	 	 	 	 	 	 	 	 
	262.
	 	0301	 	Best in the West Shopping	 	2186 N. Rainbow Boulevard	 	WRI Best in the West, LLC
	 
	 	 	 	Center	 	Las Vegas, NV 89108	 	P.O. Box 203378
	 
	 	 	 	 	 	 	 	Houston, TX, 77216-3237
	 
	 	 	 	 	 	 	 	 
	263.
	 	0302	 	El Paseo Marketplace	 	1864 Joe Battle Blvd.	 	River Oaks Properties, Ltd
	 
	 	 	 	 	 	El Paso, TX 79936	 	106 Mesa Park Drive
	 
	 	 	 	 	 	 	 	El Paso, TX, 79912
	 
	 	 	 	 	 	 	 	 
	264.
	 	0303	 	Sunland Plaza	 	813 Sunland Park Drive, Suite B	 	YEK #7, LP  PO Box 1022  El Paso TX  79946
	 
	 	 	 	 	 	El Paso, TX 79912	 	 
	 
	 	 	 	 	 	 	 	 
	265.
	 	0304	 	Mentor Target Center	 	9623 Mentor Avenue	 	LRC Mentor Investors, LLC
	 
	 	 	 	 	 	Mentor, OH  44060	 	1585 Frederick Boulevard
	 
	 	 	 	 	 	 	 	Levey  Company
	 
	 	 	 	 	 	 	 	Akron, OH  44320
	 
	 	 	 	 	 	 	 	 
	266.
	 	0305	 	Alliance Town Center	 	9561 Sage Meadow Trail	 	Alliance Town Center I, L.P.
	 
	 	 	 	 	 	Fort Worth, TX 76177	 	301 Commerce Street
	 
	 	 	 	 	 	 	 	Suite 3635
	 
	 	 	 	 	 	 	 	Ft. Worth, TX, 76102
	 
	 	 	 	 	 	 	 	 
	267.
	 	0306	 	Uptown Village at 	 	305 West FM 1382	 	The MG Herring Property Group, LLC
	 
	 	 	 	Cedar Hill  	 	Suite 530 Cedar Hill, TX  75104	 	5710 LBJ Freeway
	 
	 	 	 	 	 	 	 	Suite 450
	 
	 	 	 	 	 	 	 	Dallas, TX  75240-6399
	 
	 	 	 	 	 	 	 	 
	268.
	 	0307	 	Alamo Ranch	 	5347 W Loop 1604 N, Suite 109	 	W2005 CRM Real Estate Limited Partnership
	 
	 	 	 	 	 	San Antonio, TX 78253	 	6011 Connection Drive
	 
	 	 	 	 	 	 	 	6th Floor
	 
	 	 	 	 	 	 	 	Irving, TX, 75039
	 
	 	 	 	 	 	 	 	 
	269.
	 	0308	 	The Terrace	 	2220 Hamilton Place Blvd., Suite	 	CBL Terrace Limited Partnership CBL &
	 
	 	 	 	 	 	110 Chattanooga, TN 37421	 	Associates management, Inc. 2030Hamilton Place
	 
	 	 	 	 	 	 	 	Blvd., Suite 500 Chattanooga, TN 37421
	 
	 	 	 	 	 	 	 	 
	270.
	 	0310	 	McKinley Mall	 	3701 McKinley Parkway	 	McKinley Mall, LLC
	 
	 	 	 	 	 	Buffalo, NY 14219-2683	 	725 Conshohocken State Road
	 
	 	 	 	 	 	 	 	Stoltz Management of Delaware, Inc.
	 
	 	 	 	 	 	 	 	Bala Cynwyd, PA, 19004
	 
	 	 	 	 	 	 	 	 
	271.
	 	0311	 	Midtown Village	 	1800 McFarland Blvd. East #522	 	Carlyle/Cypress Tuscaloosa  8343 Douglas
	 
	 	 	 	 	 	Tuscaloosa, AL 35404	 	Avenue, Suite 300  Dallas TX  75225
	 
	 	 	 	 	 	 	 	 
	272.
	 	0313	 	Canyon View Marketplace	 	632 Market St., Ste 500	 	WTN CoEx I, LLC
	 
	 	 	 	 	 	Grand Junction, CO 81505	 	3501 SW Fairlawn Road, Suite 200
	 
	 	 	 	 	 	 	 	Topeka, Kansas  66614
	 
	 	 	 	 	 	 	 	 
	273.
	 	0314	 	Sherwood Mall	 	5410 Pacific Avenue	 	Sherwood Mall LLC 5757 pacific Ave Suite 220
	 
	 	 	 	 	 	Stockton, CA 95207	 	Stockton, CA 95207
	 
	 	 	 	 	 	 	 	 
	274.
	 	0315	 	Hamilton Town Center	 	14002 Hoard Drive	 	Hamilton Town Center, LLC
	 
	 	 	 	 	 	Suite 100 Noblesville, IN 46060	 	225 W. Washington
	 
	 	 	 	 	 	 	 	M.S. Management Associates Inc.
	 
	 	 	 	 	 	 	 	Indianapolis, IN, 46204






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	275.
	 	0316	 	Countrywood Crossing	 	2273 N. Germantown Parkway	 	Countrywood 1031, LLC Inland Continental
	 
	 	 	 	 	 	Memphis, TN 38016	 	Property Management Corp. 2901 Butterfield
	 
	 	 	 	 	 	 	 	Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	276.
	 	0317	 	Midland Park Mall	 	4511 N. Midkiff Dr	 	Midland Park Mall, L.P. Simon Property Group
	 
	 	 	 	 	 	Midland, TX 79705	 	225 W. Washington  Indianapolis IN  46204
	 
	 	 	 	 	 	 	 	 
	277.
	 	0318	 	State Street	 	114-118 South State Street	 	Chicago Title Land Trust Number 118-5518
	 
	 	 	 	 	 	Chicago, IL	 	1535 North Forest
	 
	 	 	 	 	 	 	 	River Forest, IL, 60305
	 
	 	 	 	 	 	 	 	 
	278.
	 	0319	 	Market Place Square	 	720 Jefferson Rd	 	Ronald Benderson 1995 Trust  PO Box 823201
	 
	 	 	 	 	 	Suite 100	 	Philadelphia PA  19182
	 
	 	 	 	 	 	Henrietta, NY 14623	 	 
	 
	 	 	 	 	 	 	 	 
	279.
	 	0320	 	Warwick Center	 	1350 East Bald Hill Road	 	DDRTC Warwick Center LLC
	 
	 	 	 	 	 	Warwick, RI 02886	 	3300 Enterprise Parkway
	 
	 	 	 	 	 	 	 	Developers Diversified Realty Corporation
	 
	 	 	 	 	 	 	 	Beachwood, OH, 44122
	 
	 	 	 	 	 	 	 	 
	280.
	 	0321	 	Gateway Center	 	15 Mystic View Rd	 	DDRC Gateway LLC
	 
	 	 	 	 	 	Everett, MA 02149	 	Gateway Center
	 
	 	 	 	 	 	 	 	Dept 105438-20129-32412
	 
	 	 	 	 	 	 	 	PO Box 951378
	 
	 	 	 	 	 	 	 	Cleveland, OH, 44193
	 
	 	 	 	 	 	 	 	 
	281.
	 	0322	 	Gresham Station	 	839 NW 12th Avenue	 	Westlake Gresham Center, LLC
	 
	 	 	 	 	 	Gresham, OR 97030	 	520 S. Camino Real
	 
	 	 	 	 	 	 	 	Westlake Realty Group, Inc.
	 
	 	 	 	 	 	 	 	9th Floor
	 
	 	 	 	 	 	 	 	San Mateo, CA, 94402-1722
	 
	 	 	 	 	 	 	 	 
	282.
	 	0323	 	Fox River Mall	 	4301 West Wisconsin Ave	 	Fox River Mall
	 
	 	 	 	 	 	0030 City of Grand Chute 	 	110 North Wacker
	 
	 	 	 	 	 	(Appleton), WI 54913	 	Fox River Shopping Center LLP
	 
	 	 	 	 	 	 	 	Chicago, IL, 60606
	 
	 	 	 	 	 	 	 	 
	283.
	 	0324	 	Webster Towne Center	 	913 Holt Road	 	COR Holt Road Company, LLC  PO Box 102  
	 
	 	 	 	 	 	Webster, NY 14580	 	Albany NY  12201-0102
	 
	 	 	 	 	 	 	 	 
	284.
	 	0325	 	Shoppes at Paradise Isle	 	34940 Emerald Coast Parkway 	 	WRI-SRP Paradise Isle, LLC
	 
	 	 	 	 	 	#120 Destin, FL 32550	 	2600 Citadel Plaza Drive
	 
	 	 	 	 	 	 	 	Houston, TX, 77008
	 
	 	 	 	 	 	 	 	 
	285.
	 	0326	 	Gateway Center	 	1505 University Drive East	 	Delmar Baronhead I, Ltd.
	 
	 	 	 	 	 	Suite 250	 	4645 North Central Expressway
	 
	 	 	 	 	 	College Station, TX 77840	 	Corinth Properties
	 
	 	 	 	 	 	 	 	200 Knox Place
	 
	 	 	 	 	 	 	 	Dallas, TX, 75205
	 
	 	 	 	 	 	 	 	 
	286.
	 	0327	 	Patton Creek	 	4371 Creekside Ave., #121	 	Patton Creek Holdings, LLC Patton Creek
	 
	 	 	 	 	 	Hoover, AL 35244	 	Holdings, LLC 1175 NE 125th Street Suite 102
	 
	 	 	 	 	 	 	 	North Miami FL  33161
	 
	 	 	 	 	 	 	 	 
	287.
	 	0328	 	Palms Crossing	 	3300 Expressway 83	 	Palms Crossing, LP
	 
	 	 	 	 	 	Building 300	 	National City Center
	 
	 	 	 	 	 	McAllen, TX 78501	 	MS Management Associates Inc.
	 
	 	 	 	 	 	 	 	225 W. Washington
	 
	 	 	 	 	 	 	 	Indianapolis, IN, 46204
	 
	 	 	 	 	 	 	 	 
	288.
	 	0329	 	Market Street at 	 	4414 SW College Road	 	The Ocala Shoppes LLC
	 
	 	 	 	Heath Brook 	 	#1710 Ocala, FL 34474	 	12570 Telecom Drive
	 
	 	 	 	 	 	 	 	United American Realty, LLC
	 
	 	 	 	 	 	 	 	Temple Terrace, FL, 33637
	 
	 	 	 	 	 	 	 	 
	289.
	 	0331	 	The Shops of Friendly Center	 	3350 W. Friendly Avenue, Suite 	 	CBL-TRS Joint Ventrue, LLC
	 
	 	 	 	 	 	111 Greensboro, NC 27410	 	2030 Hamilton Place Boulevard
	 
	 	 	 	 	 	 	 	CBL-Shops at Friendly II, LLC
	 
	 	 	 	 	 	 	 	Suite 500
	 
	 	 	 	 	 	 	 	Chattanooga, TN, 37421-6000






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	290.
	 	0332	 	Boulevard Consumer 	 	1701 Niagara Falls Boulevard	 	Blvdcon, LLC  570 Delaware Avenue  Buffalo NY
	 
	 	 	 	Square 	 	Amherst, NY 14228	 	14202
	 
	 	 	 	 	 	 	 	 
	291.
	 	0333	 	Front Range Village	 	4405 Corbett Drive	 	Bayer Properties Frout Raye Retail Company,
	 
	 	 	 	 	 	Fort Collins, CO 80525	 	LLC 2720 Cowcil Tree Avenue Suite 160 Fort
	 
	 	 	 	 	 	 	 	Collins CO  80525
	 
	 	 	 	 	 	 	 	 
	292.
	 	0334	 	Marle Hay Mall	 	3800 Merle hay Road	 	Merle Hay Mall Limited Partnership
	 
	 	 	 	 	 	Unit #509	 	30 North Michigan Avenue
	 
	 	 	 	 	 	Des Moines, IA 50310	 	Suite 1008
	 
	 	 	 	 	 	 	 	Chicago, IL, 60602
	 
	 	 	 	 	 	 	 	 
	293.
	 	0335	 	The Loop West	 	2609 W. Osceola Parkway	 	Loop West LLC The Wilder Cos. 800 Boylston St
	 
	 	 	 	 	 	Kissimmee, FL 34741	 	Suite 1300 Boston MA  02199
	 
	 	 	 	 	 	 	 	 
	294.
	 	0336	 	Brook Highland Plaza	 	5267 Highway 280	 	GS II Brook Highland LC
	 
	 	 	 	 	 	Birmingham, AL 35242	 	3300 Enterprise Parkway
	 
	 	 	 	 	 	 	 	Developers Diversified Realty Corporation
	 
	 	 	 	 	 	 	 	Beachwood, OH, 44122
	 
	 	 	 	 	 	 	 	 
	295.
	 	0337	 	Mall of Louisiana	 	9330 Mall of Louisiana Blvd,	 	Mall of Louisiana Land, L.P.
	 
	 	 	 	 	 	Suite 400	 	110 North Wacker Drive
	 
	 	 	 	 	 	Baton Rouge, LA 70809	 	Chicago, IL 60606
	 
	 	 	 	 	 	 	 	 
	296.
	 	0339	 	Bridge Street Town Centre	 	301 The Bridge Street NW	 	Huntsville Shores, LLC  9247 Alden Drive
	 
	 	 	 	 	 	Suite #109	 	Beverly Hills CA  90210
	 
	 	 	 	 	 	Huntsville, AL 35806	 	 
	 
	 	 	 	 	 	 	 	 
	297.
	 	0340	 	Cranbrook Village 	 	928 W. Eisenhower Pkwy	 	Cranbrook Village Limited Partner
	 
	 	 	 	Shopping Center	 	Ann Arbor, MI 48103	 	6735 Telegraph Road Suite 110
	 
	 	 	 	 	 	 	 	Bloomfield Hills, MI  48301-3141
	 
	 	 	 	 	 	 	 	 
	298.
	 	0341	 	Deerfield Towne Center	 	5145 Deerfield Blvd	 	Deerfield Towne Center Holding Company  5305
	 
	 	 	 	 	 	Mason, OH 45040	 	Deerfield Blvd.  Mason OH  45040
	 
	 	 	 	 	 	 	 	 
	299.
	 	0342	 	Fairlane Green	 	3150 Fairline Drive	 	Green Drive LLC Lormax Stern Development Do.
	 
	 	 	 	 	 	Allen Park, MI 48101	 	6755 Daly Road  West Bloomfield MI  48322
	 
	 	 	 	 	 	 	 	 
	300.
	 	0343	 	Tiffany Springs Market 	 	9120 NW Skyview Ave	 	CP Venture Two, LLC Cousins Properties
	 
	 	 	 	Center 	 	Kansas City , MO 64154	 	Incorporated 191
	 
	 	 	 	 	 	 	 	Peachtree Street Suite 3600 Atlanta GA
	 
	 	 	 	 	 	 	 	30303-1740
	 
	 	 	 	 	 	 	 	 
	301.
	 	0344	 	Regal Court Shopping 	 	7467 Youree Drive	 	Inland Diversified Shreveport Regal Court,
	 
	 	 	 	Center 	 	Shreveport, LA 71105	 	L.L.C.  2901 Butterfield Road  Oak Brook IL
	 
	 	 	 	 	 	 	 	60523
	 
	 	 	 	 	 	 	 	 
	302.
	 	0345	 	Shoppes at Prairie Ridge	 	10033 77th Street, Ste	 	GB-MA Pleasant Prairie, LLC
	 
	 	 	 	 	 	420 Pleasant Prairie,	 	c/o Gershman Brown Crowley
	 
	 	 	 	 	 	WI 53158	 	600 E. 96th Street, Suite 150
	 
	 	 	 	 	 	 	 	Indianapolis, IN 46240
	 
	 	 	 	 	 	 	 	Tel: (317) 574-7333
	 
	 	 	 	 	 	 	 	 
	303.
	 	0347	 	Weatherford Ridge	 	225 Adams	 	Weatherford I-20/main St., L.P.
	 
	 	 	 	 	 	Suite 215	 	2525 McKinnon Street
	 
	 	 	 	 	 	Weatherford, TX 76086	 	The Retail Connection
	 
	 	 	 	 	 	 	 	Suite 700
	 
	 	 	 	 	 	 	 	Dallas, TX, 75210
	 
	 	 	 	 	 	 	 	 
	304.
	 	0348	 	Southland Shopping 	 	6142 South Westnedge Ave	 	Southland Mall, Ltd.
	 
	 	 	 	Center 	 	Portage, MI 49024	 	700 Mall Drive
	 
	 	 	 	 	 	 	 	Meyer C. Weiner Company
	 
	 	 	 	 	 	 	 	Portage, MI, 49024
	 
	 	 	 	 	 	 	 	 
	305.
	 	0350	 	The Shoppes at River 	 	5080 Riverside Drive	 	The Shoppes at River Crossing
	 
	 	 	 	Crossing 	 	Macon, GA 31210	 	110 N. Wacker Dr.
	 
	 	 	 	 	 	 	 	Shoppes at River Crossing, LLC
	 
	 	 	 	 	 	 	 	Chicago, IL  60606






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	306.
	 	0351	 	Hampton Village Centre	 	2813 S. Rochester Road	 	New Plan Hampton Village, LLC Centro NP LLC 
	 
	 	 	 	 	 	Rochester, MI 48307	 	PO Box 74139  Cleveland OH  44194
	 
	 	 	 	 	 	 	 	 
	307.
	 	0352	 	Westfield Franklin Park	 	5001 Monroe Street, Unit S-30	 	Westfield, LLC  11601 Wilshire Boulevard 11th
	 
	 	 	 	 	 	Toledo, OH 43623	 	Floor Los Angeles CA  90025
	 
	 	 	 	 	 	 	 	 
	308.
	 	0353	 	Streets of Brentwood	 	2465 Sand Creek Road, Suite 100	 	Brentwood Specialty Center LLC
	 
	 	 	 	 	 	Brentwood, CA 94513	 	150 E. Broad Street, Ste 800
	 
	 	 	 	 	 	 	 	Columbus, OH 43215
	 
	 	 	 	 	 	 	 	Attn: Property Mgr
	 
	 	 	 	 	 	 	 	 
	309.
	 	0354	 	The Shoppes At Gilbert 	 	857 East Baseline Road	 	Donahue Schriber Realty Group, LP
	 
	 	 	 	Commons 	 	Gilbert, AZ 85233-1246	 	200 East Baker Street
	 
	 	 	 	 	 	 	 	Suite 100
	 
	 	 	 	 	 	 	 	Costa Mesas, CA, 92626
	 
	 	 	 	 	 	 	 	 
	310.
	 	0355	 	Oro Valley Marketplace	 	11875 N. Oracle Road	 	Vestar OVM, L.L.C.
	 
	 	 	 	 	 	Oro Valley, AZ 85755	 	c/o Vestar Development Company
	 
	 	 	 	 	 	 	 	2425 East Camelback Road, Suite 750
	 
	 	 	 	 	 	 	 	Phoenix, AZ  85016
	 
	 	 	 	 	 	 	 	 
	311.
	 	0356	 	Queen Creek Marketplace	 	21118 S. Ellsworth Loop Road	 	Vestar QCM, L.L.C.  PO Box 16281  Phoenix AZ
	 
	 	 	 	 	 	Queen Creek, AZ  85242	 	85011-6281
	 
	 	 	 	 	 	 	 	 
	312.
	 	0357	 	Town Center Plaza	 	7209 SE 29th St	 	Sooner Town Center, LLC Collett & Associates
	 
	 	 	 	 	 	Midwest City, OK 73110	 	PO Box 36799  Charlotte  NC  28236-6799
	 
	 	 	 	 	 	 	 	 
	313.
	 	0359	 	Kendall Marketplace	 	955 Erica Lane	 	Cannonball, L.L.C. The Harlem Irving
	 
	 	 	 	 	 	Yorkville, IL 60560	 	Companies, Inc. 4104 North Harlem Avenue
	 
	 	 	 	 	 	 	 	Norridge IL  60706
	 
	 	 	 	 	 	 	 	 
	314.
	 	0361	 	Alamo Quarry Market	 	255 E. Basse Road, Suite 1010	 	Alamo Vista Holdings LLC and Alamo Stonecrest
	 
	 	 	 	 	 	San Antonio, TX 78209	 	Holdings LLC
	 
	 	 	 	 	 	 	 	c/o American Assets, Inc.
	 
	 	 	 	 	 	 	 	11455 El Camino Real, Suite 200
	 
	 	 	 	 	 	 	 	San Diego, CA 92130
	 
	 	 	 	 	 	 	 	Attn: Retail Property Management
	 
	 	 	 	 	 	 	 	 
	315.
	 	0362	 	Providence Town Center	 	40 Town center Drive, Suite 2	 	Providence Town Center LP
	 
	 	 	 	 	 	Collegeville, PA 19426	 	1301 Lancaster Avenue
	 
	 	 	 	 	 	 	 	Berwyn, PA 19312
	 
	 	 	 	 	 	 	 	 
	316.
	 	0363	 	Hammock Landing	 	205 Palm Bay Road, Suite 121	 	West Melbourne Town Center, LLC
	 
	 	 	 	 	 	W. Melbourne, FL 32904	 	c/o CBL & Assocs Mgmt, Inc.
	 
	 	 	 	 	 	 	 	2030 Hamilton Place Blvd, Suite 500
	 
	 	 	 	 	 	 	 	Chattanooga, TN 37421-6000
	 
	 	 	 	 	 	 	 	Attn: General Counsel
	 
	 	 	 	 	 	 	 	 
	317.
	 	0364	 	The Pavilion at Port 	 	5511 S. Williamson Blvd., Suite	 	Port Orange Town Center, LLC
	 
	 	 	 	Orange 	 	210 Port Orange, FL 32128	 	CBL Center, Suite 500
	 
	 	 	 	 	 		 	2030 Hamilton Place Blvd
	 
	 	 	 	 	 	 	 	c/o Justice Wade
	 
	 	 	 	 	 	 	 	Chattanooga, TN 37421-6000
	 
	 	 	 	 	 	 	 	 
	318.
	 	0365	 	Quail Creek Crossing	 	3201 Lawrence Road, Suite 200	 	Quail Creek Crossing Ltd Paul Blackburn 8100
	 
	 	 	 	 	 	Wichita Falls, TX 76308	 	Broadway Suite 205 San Antonio TX  78209
	 
	 	 	 	 	 	 	 	 
	319.
	 	0366	 	Dulles 28 Center	 	22000Dulles Retail Center, Suite	 	DULLES 28 CENTRE RETAIL GROUP, L.L.C 
	 
	 	 	 	 	 	136 Sterling, VA 20166	 	Lerner Corporation, Managing Agent 2000 
	 
	 	 	 	 	 		 	Tower Oaks Boulevard Eighth Floor 
	 
	 	 	 	 	 	 	 	Rockville MD 20852-4208
	 
	 	 	 	 	 	 	 	 
	320.
	 	0367	 	Annapolis Harbor Center	 	2566 Solomons Island Road	 	Annapolis Harbour Center Associates, LLLP
	 
	 	 	 	 	 	Annapolis, MD 21401	 	2000 Tower Oaks Boulevard Eighth Floor
	 
	 	 	 	 	 	 	 	Rockville MD  20852-4208






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	321.
	 	0369	 	Airport Center	 	940 Airport Center Drive	 	Airport Associates LP
	 
	 	 	 	 	 	Allentown, PA 18109	 	c/o Pinveille Properties
	 
	 	 	 	 	 	 	 	983 Valley Forge Road, Bldg 66
	 
	 	 	 	 	 	 	 	Valley Forge, PA  19482
	 
	 	 	 	 	 	 	 	 
	322.
	 	0371	 	Riverdale Shopping Center	 	4249 South Riverdale Road	 	Riverdale Center IV, L.C.
	 
	 	 	 	 	 	Riverdale, UT  84405	 	%The Boyer Company
	 
	 	 	 	 	 	 	 	90 South 400 West, Suite 200
	 
	 	 	 	 	 	 	 	Salt Lake City, UT  84101
	 
	 	 	 	 	 	 	 	 
	323.
	 	0372	 	Kingsport Pavilion	 	2626 E. Stone Drive, Ste 130	 	Kingsport Pavilion, LLC, FR-141, LLC & J. Pope
	 
	 	 	 	 	 	Kingsport, TN  37660	 	Holdings, LLC  14100 San Pedro Suite 310 San
	 
	 	 	 	 	 	 	 	Antonio TX  78232
	 
	 	 	 	 	 	 	 	 
	324.
	 	0373	 	Hammond Square 	 	2026 Hammond Square Drive	 	Paplace Properties, LLC Stirling Properties,
	 
	 	 	 	Shopping 	 	Hammond, LA 70403	 	LLC 109 Northpark Blvd., Suite 300 Covington,
	 
	 	 	 	 	 	 	 	LA 70433
	 
	 	 	 	 	 	 	 	 
	325.
	 	0374	 	Sunset Valley Homestead	 	5207 Brodie Lane	 	Cole MT Sunset Valley TX, LLC  2555 East
	 
	 	 	 	Shopping Center	 	Austin, TX  78745	 	Camelback Road Suite 400 Phoenix AZ  85016
	 
	 	 	 	 	 	 	 	 
	326.
	 	0375	 	Chesterfield Commons	 	46 THF Blvd	 	The Chesterfield Two Develpment, LLC
	 
	 	 	 	East 	 	Chesterfield, MO 63005	 	The Chesterfield Two Realty, Inc.
	 
	 	 	 	 	 	 	 	c/o THF Realty, Inc.
	 
	 	 	 	 	 	 	 	2127 Innerbelt Business Center Drive, Suite 200
	 
	 	 	 	 	 	 	 	St. Louis, MO 63114
	 
	 	 	 	 	 	 	 	 
	327.
	 	0377	 	The Markets at Town 	 	4860 Big Island Drive	 	Pinehill Markets Operating LLC
	 
	 	 	 	Center 	 	Jacksonville, FL 32246	 	3050 Peachtree Road NW
	 
	 	 	 	 	 	 	 	Suite 300
	 
	 	 	 	 	 	 	 	Atlanta, GA  30305
	 
	 	 	 	 	 	 	 	 
	328.
	 	0379	 	Tiger Town	 	2690 Enterprise Drive	 	THF Realty  2127 Innerbelt Business Center Dr
	 
	 	 	 	 	 	Opelika, AL 36801	 	Suite 200 St Louis MO  63114
	 
	 	 	 	 	 	 	 	 
	329.
	 	0380	 	Landstown Commons 	 	3300 Princess anne Road, Suite 731	 	Mountain Ventrues Virginia Beach, LLC Phillips
	 
	 	 	 	Shopping Center	 	Virginia Beach, VA 23456	 	Point East Tower 777 South Flagler Drive 1101
	 
	 	 	 	 	 	 	 	West Palm Beach FL  33401
	 
	 	 	 	 	 	 	 	 
	330.
	 	0381	 	Northtown Square 	 	4727 N Division Street	 	Northtown Square, LLC
	 
	 	 	 	Shopping Center	 	Spokane, WA 99207	 	2615 North Cincinnati
	 
	 	 	 	 	 	 	 	Spokane, WA  99207
	 
	 	 	 	 	 	 	 	 
	331.
	 	0386	 	Jacksonville Mall	 	361 Jacksonville Mall, Unit K	 	PR Financing Limited partnership PREIT
	 
	 	 	 	 	 	Jacksonville, NC 28546	 	Services, LLC 200 South Broad Street
	 
	 	 	 	 	 	 	 	Philadelphia PA  19102-3803
	 
	 	 	 	 	 	 	 	 
	332.
	 	0387	 	Sherwood Plaza East	 	1286 Worcester St	 	HC Atlantic Development L.P.
	 
	 	 	 	 	 	Natick, MA 01760	 	393 Totten Pond Road, Suite 203
	 
	 	 	 	 	 	 	 	Waltham, MA 02451
	 
	 	 	 	 	 	 	 	 
	333.
	 	0388	 	Northwoods Shopping 	 	1742 N. Loop 1604, Suite 104	 	Northwood Center III, Inc.
	 
	 	 	 	Center, Phase III	 	San Antonio, TX 78232	 	500 Galleria Tower
	 
	 	 	 	 	 	 	 	13155 Noel Road
	 
	 	 	 	 	 	 	 	Dallas, TX 75240
	 
	 	 	 	 	 	 	 	 
	334.
	 	0389	 	Folsom-Gateway II	 	2381 Iron Point Road	 	Evergreen/Folsom Gateway II The Evergreen
	 
	 	 	 	 	 	Folsom, CA 95630	 	Company 1755 Creekside Oaks Drive suite 290
	 
	 	 	 	 	 	 	 	Sacramento, CA 95833
	 
	 	 	 	 	 	 	 	 
	335.
	 	0390	 	Tulsa Hills Shopping 	 	7505 S. Olympia Avenue W	 	Inland American Tulsa 71st, LLC  2901
	 
	 	 	 	Center 	 	Tulsa, OK 74132	 	Butterfield Road  Oak Brook IL  60523
	 
	 	 	 	 	 	 	 	 
	336.
	 	0391	 	Broadway Crossing	 	5510 S. Broadway, Suite 200	 	Broadway Partners, Ltd., a TX limited
	 
	 	 	 	 	 	Tyler, TX 75703	 	partnership Broadway Partners, Ltd. 430 North
	 
	 	 	 	 	 	 	 	Center Street  Longview TX  75601






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	337.
	 	0392	 	Market Street	 	748 Mackenzie Lane	 	Market Street Flowood L.P.  301 Commerce
	 
	 	 	 	 	 	Flowood, MS 39232	 	Street Suite 3635 Fort Worth TX  76102
	 
	 	 	 	 	 	 	 	 
	338.
	 	0393	 	Southern Tier Crossing	 	1520 County Road 64	 	DDR Horseheads LLC
	 
	 	 	 	 	 	Horseheads, NY 14845	 	c/o Developers Diversified Realty Crop
	 
	 	 	 	 	 	 	 	3300 Enterprise Parkway
	 
	 	 	 	 	 	 	 	Beachwood, Ohio 44122
	 
	 	 	 	 	 	 	 	Attn: General Counsel
	 
	 	 	 	 	 	 	 	 
	339.
	 	0394	 	Valley Mall Plaza	 	1734 E. Washington	 	vValley Mall LLC CenterCal Properties 1960
	 
	 	 	 	 	 	Union Gap, WA 98903	 	East Grand Avenue El Segundo, CA 90245
	 
	 	 	 	 	 	 	 	 
	340.
	 	0396	 	Fairmount Fair	 	3667 West Genesee Street	 	Randall Benderson and David H. Baldauf, as
	 
	 	 	 	 	 	Camillus, NY 13031	 	Trustees Benderson Development 570 Delaware
	 
	 	 	 	 	 	 	 	Avenue  Buffalo NY  14202
	 
	 	 	 	 	 	 	 	 
	341.
	 	0399	 	Bergen Town Center	 	45 West Spring Valley Avenue	 	Vornado Bergen Mall LLC
	 
	 	 	 	 	 	Maywood, NJ 07607	 	210 Route 4 East
	 
	 	 	 	 	 	 	 	Paramus, NJ 07652
	 
	 	 	 	 	 	 	 	 
	342.
	 	0401	 	Harriman Commons	 	128 Bailey Farm Road, Suite 107A	 	FBG Harriman Upper Phase LLC
	 
	 	 	 	 	 	Monroe, NY 10950	 	c/o RD Managemetn LLC
	 
	 	 	 	 	 	 	 	810 7th Avenue, 28th Floor
	 
	 	 	 	 	 	 	 	New York, NY 10019
	 
	 	 	 	 	 	 	 	 
	343.
	 	0402	 	MacArthur Park Shopping 	 	7757 N. MacArthur Blvd.	 	Farmers New World Life Insurance Company
	 
	 	 	 	Center 	 	Irving, TX 75063	 	Zurich Alternative Asset Management, LLC 105
	 
	 	 	 	 	 	 	 	East 17th Street  New York NY  10003
	 
	 	 	 	 	 	 	 	 
	344.
	 	0404	 	Short Pump Station	 	11351 W. Broad Street, Suite 181	 	Short Pump Station, LLC
	 
	 	 	 	 	 	Glen Allen, VA 23060	 	c/o SJ Collins Enterprises, LLC
	 
	 	 	 	 	 	 	 	P.O.Box 214, Fairburn, GA 30213
	 
	 	 	 	 	 	 	 	Street Address:
	 
	 	 	 	 	 	 	 	600 Bohannon Rd.
	 
	 	 	 	 	 	 	 	Fairburn, GA 30213
	 
	 	 	 	 	 	 	 	 
	345.
	 	0406	 	Mall at Barnes Crossing	 	1001 Barnes Crossing Road, # 323	 	TUP 130, LLC+C382
	 
	 	 	 	 	 	Tupelo, MS 38804	 	c/o David Hocker & Associates, Inc, Mging Agt
	 
	 	 	 	 	 	 	 	1901 Frederica Street
	 
	 	 	 	 	 	 	 	Owensboro, KY 42301-4818
	 
	 	 	 	 	 	 	 	Tel: (270) 926-2646, Ext. 723
	 
	 	 	 	 	 	 	 	 
	346.
	 	0407	 	The PromenadeMidtowne 	 	3869 Promenade Parkway C	 	CBL & Assocs Mgmt LLC
	 
	 	 	 	Park 	 	D’Iberville, MS 39540	 	c/o CBL & Assocs Management, Inc.
	 
	 	 	 	 	 	 	 	2030 Hamilton Pl Blvd, Suite 500
	 
	 	 	 	 	 	 	 	Chattanooga, TN 37421-6000
	 
	 	 	 	 	 	 	 	Attn:  General Counsel
	 
	 	 	 	 	 	 	 	 
	347.
	 	0408	 	Midtowne Park	 	3516 Clemson Blvd.	 	Anderson Clemson Retail LLC
	 
	 	 	 	 	 	Anderson, SC 29621	 	14 South Main Street
	 
	 	 	 	 	 	 	 	2nd Flr
	 
	 	 	 	 	 	 	 	Greenville, SC 29601
	 
	 	 	 	 	 	 	 	 
	348.
	 	0410	 	Fairview Center	 	6621 N. Illinois Street	 	Pasces-64 Associates, L.L.C.
	 
	 	 	 	 	 	Fairview Heights, IL 62208	 	1401 S. Brentwood Blvd, Ste 900
	 
	 	 	 	 	 	 	 	St. Louis, MO 63144
	 
	 	 	 	 	 	 	 	 
	349.
	 	0413	 	Rivertown Village	 	3959 2nd Street South, Suite 101	 	St. Cloud rainbow Village, LLC 7650
	 
	 	 	 	 	 	St. Cloud, MN 56301	 	Edinborough Way Wuite 375 Edina, MN 55435






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Store No.	 	Project Name	 	Store Location	 	Landlord Information
	350.
	 	0414	 	Cornerstar	 	15800 East Briarwood Circle, Unit	 	PCCP CS Alberta Cornerstar Colorado, LLC
	 
	 	 	 	 	 	A Aurora, CO 80016	 	5460 S. Quebec Street, Suite 100
	 
	 	 	 	 	 		 	Greenwood Village, Colorado 80111
	 
	 	 	 	 	 	 	 	Attn: Laura Carstenson
	 
	 	 	 	 	 	 	 	Tel: (30) 771-4004
	 
	 	 	 	 	 	 	 	 
	351.
	 	0415	 	Longview Towne Crossing	 	3096 N. Eastman Road, Suite 105	 	Longview Towne Crossing, L.P.
	 
	 	 	 	 	 	Longview, TX 75605	 	16000 Dallas Parkway,Ste 300
	 
	 	 	 	 	 	 	 	Dallas, TX 75248
	 
	 	 	 	 	 	 	 	 
	352.
	 	0416	 	Arena Hub Plaza	 	493 arena Hub Plaza	 	TFP Limited Partnership II, L.P.
	 
	 	 	 	 	 	Wilkes-Barre, PA 18702	 	1140 Route 315
	 
	 	 	 	 	 	 	 	Wilkes-Barre, PA 18711
	 
	 	 	 	 	 	 	 	Attn: Robert S. Tamburro
	 
	 	 	 	 	 	 	 	 
	353.
	 	0421	 	Avon Marketplace	 	380 West Main Street	 	Avon marketplace Investors, LLC David Adam
	 
	 	 	 	 	 	Avon, CT 06001	 	Realty, Inc. 8 Church Lane, Suite 200
	 
	 	 	 	 	 	 	 	Westport, CT 06880
	 
	 	 	 	 	 	 	 	 
	354.
	 	0425	 	Azalea Square	 	434 Azalea Square Blvd	 	Inland Western Summerville Azalea Square,
	 
	 	 	 	 	 	Summerville, SC 29483	 	L.L.C.
	 
	 	 	 	 	 	 	 	2901 Butterfield Road
	 
	 	 	 	 	 	 	 	Oak Brook, IL 60523
	 
	 	 	 	 	 	 	 	Tel: (630) 218-8000
	 
	 	 	 	 	 	 	 	 
	355.
	 	0426	 	Sycamore Plaza	 	7800 Montgomery Road	 	RRP Sycamore Plaza, LP Regency Centers
	 
	 	 	 	 	 	Cincinnati, OH 45236	 	Corporation One Independent Drive Suite 114
	 
	 	 	 	 	 	 	 	Jacksonville, FL 32202-5019
	 
	 	 	 	 	 	 	 	 
	356.
	 	0427	 	Richland Marketplace	 	622 North West End Blvd.	 	RB Quakertown, LP RD Management, LLC
	 
	 	 	 	 	 	Quakertown, PA 18951	 	810 7th Avenue. 8th Floor
	 
	 	 	 	 	 	 	 	New York, NY 10019
	 
	 	 	 	 	 	 	 	 
	357.
	 	0742	 	Tallgrass - Corporate	 	1000 Remington Blvd	 	Bolingbrook Investors, LLC
	 
	 	 	 	 	 	Bolingbrook, IL 60440	 	200 South Michigan Ave
	 
	 	 	 	 	 	 	 	Chicago, IL 60604
	 
	 	 	 	 	 	 	 	 
	358.
	 	1135	 	Arbor Drive Parking Lot	 	1140-1152 Arbor drive (Windham	 	The Prudential Insurance Company PDC PR
	 
	 	 	 	 	 	Industrial Center IV)	 	132804 Windham Ctr. IV 23307
	 
	 	 	 	 	 	Romeoville, IL 60446	 	Network Place
	 
	 	 	 	 	 	 	 	Chicago, IL 60673-1233
	 
	 	 	 	 	 	 	 	 
	359.
	 	1135 	 	Corp. Offices #1	 	1135 arbor Drive	 	1135 Arbor Drive Investors LLC Nicolson,
	 
	 	Arbor Drive	 	 	 	Romeoville, IL 60446	 	Porter & List, Inc. 1300 West Higgins Road
	 
	 	 	 	 	 	 	 	Suite 104 Park Ridge IL  60068
	 
	 	 	 	 	 	 	 	 
	360.
	 	1198 	 	Warehouse	 	1198 Arbor Drive	 	Kylie Capital LLC High Five Products, Inc. 319
	 
	 	Arbor Drive 	 	 	 	Romeoville, IL 60446	 	West Ontario  Chicago IL  60654
	 
	 	 	 	 	 	 	 	 
	361.
	 	811-AZ 	 	ULTA Riverside, Phoenix AZ	 	4570 West Lower Buckeye Road	 	The Lincoln Natione Life Insurance Company
	 
	 	Warehouse 	 	Warehouse	 	Phoenix, AZ 85034	 	Delaware Investments 100 North Greene St.
	 
	 	 	 	 	 	 	 	Greensboro NC  27401
	 
	 	 	 	 	 	 	 	 
	362.
	 	Dave 	 	New York Apt	 	381 Park Avenue South Suite 1201	 	Travel Gems, Inc.
	 
	 	Rayner 	 	 	 	New York NY	 	 







 











 






SCHEDULE 8.4




EXISTING LIENS



	 	 	 	 	 	 	 
	 	 	 	 	UCC financing	 	 
	 	 	 	 	statement: file No./Date	 	 
	Secured Party	 	Collateral	 	of filing	 	Amendments (if any)
	Illinois
	 	 	 	 	 	 
	Konica Minolta Premier Finance 10201
Centurion Parkway North
Jacksonville, FL 32256

	 	Note: this row
applies to a lien
filed against items
under a true lease
between Ulta and
the Secured Party.
	 	 14633537  / 09-23-07
	 	 
	 
	 	 	 	 	 	 
	 

	 	All office
equipment and
products,
computers, security
systems and other
items of equipment
now and hereafter
leased to and/ or
financed for
Debtor/ Lessee by
Secured Party/
Lessee.	 	 	 	 






 









 





SCHEDULE 8.6

to

INFORMATION CERTIFICATE




Pending Litigation



None



 









 





SCHEDULE 8.7

to

INFORMATION CERTIFICATE




Permits



     Each of the Company’s store locations has, if required by applicable law, the following
Permits:




	 	1.	 	Certificate of Occupancy/Business License
	 
	 	2.	 	Salon License
	 
	 	3.	 	Alarm License
	 
	 	4.	 	Non-RX Pharmacy Permit





 









 





SCHEDULE 8.8

to

INFORMATION CERTIFICATE




Environmental Compliance



No Exceptions



 









 





SCHEDULE 8.9

to

INFORMATION CERTIFICATE




Credit Card Agreements




	1.	 	Bankcard Agreement dated as of January 9, 2007 by and among First Data Merchant Services, Wells
Fargo Bank, N.A. and ULTA Salon, Cosmetics & Fragrance, Inc.
	 
	2.	 	Letter agreement between Discover Card Services, Inc. and ULTA Salon, Cosmetics & Fragrance,
Inc., under the terms of the Merchant Services Agreement of Discover Card Services, Inc.
	 
	3.	 	Informal agreement between American Express Travel Related Services Company, Inc. and ULTA
Salon, Cosmetics & Fragrance, Inc., under the terms of the American Express Merchant Regulations -
US.




Note: Copies of all of the aforesaid agreements, disclosing the terms of such arrangements, have
previously been provided to the Agents.





 












 





EXHIBIT C




FORM OF SWAP ACKNOWLEDGMENT AGREEMENT



                    , 20     




Wells Fargo Bank, National Association, as

Administrative Agent for itself and the Lenders as referred to below

One Boston Place, 19th Floor

Boston, Massachusetts 02109



Ladies and Gentlemen:




     Reference is made to the Loan and Security Agreement among Wells Fargo Bank, National
Association, as administrative agent (in such capacity, “Administrative Agent”) and as
Collateral Agent, in each case, for itself and the financial institutions from time to time party
thereto, as lenders (collectively, “Lenders”), the Lenders, and Ulta Salon, Cosmetics &
Fragrance, Inc. (the “Borrower”), as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced (the “Loan Agreement”). All
capitalized terms used herein, unless otherwise defined herein, shall have the meanings given to
such terms in the Loan Agreement.



     Pursuant to such financing arrangements, Administrative Agent and Lenders may from time to
time make loans to Borrower secured by substantially all of the assets and properties of Borrower
including among other things, all right, title and interest of Borrower in, to and under the swap
agreements, cap agreements, collar agreements, exchange agreements, futures or forward hedging
contracts or similar contractual arrangements intended to protect Borrower against fluctuations in
interest rates as listed on Exhibit A hereto, and at any time entered into between Borrower
and                      (the “Bank”;
collectively, “Hedge Agreements” and individually, a “Hedge Agreement”).



     Bank and Borrower agree in favor of Agents and Lenders that upon receipt by Bank of written
instructions from Administrative Agent in the form annexed hereto as Exhibit B, Bank will no longer
comply with any instructions or orders originated by Borrower or any of its affiliates or
representatives concerning any Hedge Agreement and will comply only with the instructions or orders
of Administrative Agent with respect thereto, without any further consent by Borrower or its
affiliates or representatives. Bank is hereby irrevocably authorized and directed to follow such
instructions or orders without any inquiry as to Administrative Agent’s right or authority to give
such instructions or orders and Bank is fully protected in acting in accordance therewith. Bank
shall not for any reason exercise any lien rights or rights of setoff or other claims against
amounts owing to Borrower pursuant to Hedge Agreements, without the prior consent of Administrative
Agent. Upon Administrative Agent’s request, Bank will report to Administrative Agent the amounts
then outstanding with respect to the Hedge Agreements consistent with its current practices as of
the date hereof with Borrowers or more frequently as Administrative Agent may request after
Administrative Agent has sent the written instructions



v









 




referred to above, together with such other
information with respect thereto as Administrative Agent may reasonably request.




     Nothing contained herein shall be construed as an assumption by Administrative Agent or any
Lender of the obligations or liabilities of Borrower or any of its affiliates to Bank or any other
person pursuant to any Hedge Agreement or otherwise. Bank agrees that in its capacity as a
counterparty to the Hedge Agreement, it shall not be deemed to have any rights as a “Lender” under
the Loan Agreement except for the right to receive proceeds of Collateral, as a counterparty to the
Hedge Agreement, in the order and manner set forth in Section 6.4(a) of the Loan Agreement. Bank
further aggress that Administrative Agent has no duties to Bank under the Loan Agreement in its
capacity as a counterparty to the Hedge Agreement other than in respect of Bank’s entitlement to
proceeds of Collateral, as a counterparty to the Hedge Agreement, in the order and manner set forth
in Section 6.4(a) of the Loan Agreement. To the extent Bank is also a “Lender” under the Loan
Agreement, nothing in the preceding two sentences is intended to diminish or otherwise alter Bank’s
rights, or Administrative Agent’s duties to Bank, under the Loan Agreement as to Bank in its
capacity as a “Lender” thereunder.



     Administrative Agent and Lenders are relying upon this letter agreement in providing financing
to Borrower and this letter agreement shall be binding upon Borrower and its successors and assigns
and inure to the benefit of Administrative Agent and Lenders and their successors and assigns. This
agreement may not be amended, modified, supplemented or terminated orally or by course of conduct
or otherwise. This agreement may only be amended, modified, supplemented or terminated with the
written agreement of Administrative Agent.



     Borrower agrees that it will not assert any claims against the Bank as counterparty to the
Hedge Agreement solely as a result of Bank following the instructions or orders of Administrative
Agent pursuant to the terms hereof with respect to any Hedge Agreement.



     This agreement shall be governed by and construed in accordance with the laws of the State of
Illinois.



     This agreement may be executed in any number of counterparts, but all of such counterparts
shall together constitute but one and the same agreement. In making proof of this agreement, it
shall not be necessary to produce or account for more than one counterpart thereof signed by each
of the parties hereto.



[Signature Page Follows]





vi









 








     This agreement shall be binding upon Bank and Borrower and inure to the benefit of
Administrative Agent, Lenders and each of the parties hereto and their respective successors and
assigns.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 

	 	[BANK]	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ULTA SALON, COSMETICS & FRAGRANCE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 

	ACKNOWLEDGED AND AGREED:	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






vii









 






EXHIBIT A

TO

SWAP ACKNOWLEDGMENT AGREEMENT




[Details to be completed for each such agreement.]



viii









 





EXHIBIT B

TO

SWAP ACKNOWLEDGMENT AGREEMENT




Form of Notice to Bank

[Name and Address

of Hedge Lender]

                                        

                                        

Attn:                     



Re:   Swap Transactions with



Ladies and Gentlemen:




     Reference is made to the Loan and Security Agreement among Wells Fargo Bank, National
Association, as administrative agent (in such capacity, “Administrative Agent”) and as
Collateral Agent, in each case, for itself and the financial institutions from time to time party
thereto as lenders (collectively, together with Administrative Agent, “Lenders”), the
Lenders, and Ulta Salon, Cosmetics & Fragrance, Inc. (“Borrower”), as the same now exists
or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced (the
“Loan Agreement”). All capitalized terms used herein, unless otherwise defined herein,
shall have the meanings given to such terms in the Loan Agreement.



     A default or event of default under the Loan Agreement exists or has occurred and is
continuing. Accordingly, Bank is no longer to comply with any instructions or orders originated by
Borrower or any of its affiliates or representatives and Bank is only to comply with the
instructions or orders or Administrative Agent with respect thereto. Borrower and its affiliates
and representatives no longer have any authority with respect to the Hedge Agreement (as defined in
the Loan Agreement) except as Administrative Agent may otherwise specify to Bank in writing.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as

Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






ix









 






EXHIBIT D




FORM OF NOTICE OF CONTINUATION/CONVERSION


To: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent




     Please refer to the Loan and Security Agreement dated as of August 31, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) among Ulta
Salon, Cosmetics & Fragrance, Inc. (the “Borrower”), various financial institutions and
Wells Fargo Bank, National Association, as Administrative Agent. Terms used but not otherwise
defined herein are used herein as defined in the Loan Agreement.



     The undersigned hereby gives irrevocable notice, pursuant to Section 3.1(b) of the
Loan Agreement, of its request to:



     (a) on [ date ] convert $[                    ]of the aggregate outstanding principal amount of the
[                    ] Loan, bearing interest at the [                    ] Rate, into a(n) [                    ] Loan [and, in the
case of a LIBO Rate Loan, having an Interest Period of
[                    ]
month(s)];[(b) on [ date ]
continue $[                    ]of the aggregate outstanding principal amount of the [                    ] Loan, bearing
interest at the LIBO Rate, as a LIBO Rate Loan having an Interest Period of [                    ] month(s)].



     The undersigned hereby represents and warrants that all of the conditions contained in
Section 4.2  of the Loan Agreement have been satisfied on and as of the date hereof, and
will continue to be satisfied on and as of the date of the conversion/continuation requested
hereby, before and after giving effect thereto.



     The Borrower has caused this Notice of Conversion/Continuation to be executed and delivered by
its officer thereunto duly authorized on                    ,           .



	 	 	 	 	 	 	 

	 	 	ULTA SALON, COSMETICS & FRAGRANCE, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






x









 





EXHIBIT E


CLOSING
CHECKLIST


 




CLOSING AGENDA




 




REVOLVING CREDIT FACILITY



AMONG



ULTA SALON, COSMETICS & FRAGRANCE, INC.

as the Borrower



and



WELLS FARGO BANK, N.A,

as Administrative Agent, Collateral Agent, LC Issuer, and a Lender



WELLS FARGO CAPITAL FINANCE, LLC,

as Joint Lead Arrangers and Joint Bookrunners,



JPMORGAN CHASE BANK, N.A.,

as Syndication Agent.



PNC BANK, NATIONAL ASSOCIATION,

as Documentation Agent,



and



THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,

as Lenders



 




AUGUST [                    ], 2010



 




 









 





Item




PART ONE: LOAN AND OPERATIVE DOCUMENTS





	1.	 	Loan and Security Agreement






	 	(a)	 	Exhibit A: Assignment and Acceptance
	 
	 	(b)	 	Exhibit B: Information Certificate
	 
	 	(c)	 	Exhibit C: Form of Swap Acknowledgment Agreement
	 
	 	(d)	 	Exhibit D: Notice of Conversion/Continuation
	 
	 	(e)	 	Exhibit E: Closing Checklist
	 
	 	(f)	 	Exhibit F: Notice of Borrowing
	 
	 	(g)	 	Exhibit G: Reserved
	 
	 	(h)	 	Exhibit H: Reserved
	 
	 	(i)	 	Exhibit I: Form of Borrowing Base Certificate
	 
	 	(j)	 	Exhibit J: Investment Policy
	 
	 	(k)	 	Exhibit K: Form of Credit Card Notification
	 
	 	(l)	 	Schedule I: Loan Commitments
	 
	 	(m)	 	Schedule II: Cash Management Services and Bank Products






	2.	 	Information Certificate
	 
	3.	 	Federal Tax Return (cover page of most recent return)
	 
	4.	 	Revolving Notes




 









 












	 	(a)	 	Wells Fargo Bank, National Association
	 
	 	(b)	 	JPMorgan Chase Bank, N.A.
	 
	 	(c)	 	PNC Bank, National Association






	5.	 	Grant of IP for purposes of filing with USPTO/Copyright Office
	 
	6.	 	Credit Card Notices: First Data Corp., American Express, and Discover
	 
	7.	 	UCC-1 Financing Statement
	 
	8.	 	Officer’s Certificate





PART TWO: ORGANIZATIONAL AND AUTHORITY DOCUMENTS





	9.	 	Secretary’s Certificate for Ulta Salon, Cosmetics & Fragrance, Inc., attaching the following:






	 	(a)	 	Certificate/Articles of Incorporation
	 
	 	(b)	 	By-Laws
	 
	 	(c)	 	Resolutions
	 
	 	(d)	 	Incumbency






	10.	 	Certificate of Status/Good Standing from Delaware
	 
	11.	 	Certificates of Foreign Qualification from each foreign jurisdiction where Borrower is conducting business





PART THREE: TERMINATION DOCUMENTS





	12.	 	Payoff Letter for existing facility





PART FOUR: MISCELLANEOUS





	13.	 	UCC, Federal and State Tax, and Judgment Lien Searches




 









 












	14.	 	Intellectual Property Searches
	 
	15.	 	Copy of “Studio Gear” License and Distribution Agreement
	 
	16.	 	Enforceability and Due Authorization Opinions of Counsel to Borrower
	 
	17.	 	Evidence of Liability and Property Insurance (reflecting Agent as loss payee and additional insured on Acord forms)
	 
	18.	 	Endorsements for Liability and Property Insurance
	 
	19.	 	Fee Letter
	 
	20.	 	Post-Closing Letter






 











 





Exhibit F




Notice of Borrowing



Date:                     





			
	To:	 	Wells Fargo Bank, National Association, as Agent

One Boston Place, 18th Floor

Boston, Massachusetts 02108

Attention: Jason Searle






          Re: Reference is made to the Loan and Security Agreement dated as of August 31, 2010,
by, among others, (i) ULTA SALON COSMETICS & FRAGRANCE, INC., as the borrower (the
“Borrower”); (ii) WELLS FARGO BANK, NATIONAL ASSOCIATION, as the administrative
agent and collateral agent (the “Agent”); and (iii) the Lenders party thereto from
time to time (as the same may be amended, modified, supplemented or restated hereafter, the
“Loan Agreement”). Capitalized terms used herein and not defined herein shall have
the meanings assigned to such terms in the Loan Agreement.


Ladies and Gentlemen:




          The Borrower refers to the above described Loan Agreement and hereby irrevocably notifies you
of the Borrowing requested below:





	 	1.	 	The Business Day of the proposed Borrowing is                     , 20_.
	 
	 	2.	 	The aggregate amount of the proposed Borrowing is $                    1,
which Borrowing consists of the following:





	 	 	 	 	 	 	 	 	 
	Type of Borrowing	 	 	 	 	 	 
	(Prime Rate Loans or LIBO	 	 	 	 	 	Interest Period for LIBO Rate
	Rate Loans)	 	Amount	 	Loans
	 
	 	$	                    	 	 	[1/2/3/6] month[s]
	 
	 	$	                    	 	 	[1/2/3/6] month[s]







	 	3.	 	Proceeds of the proposed Borrowing are to be disbursed to the following
account(s):





 






 






          The Borrower hereby certifies that the following statements are true and correct on the date
of the proposed Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:





	(a)	 	all representations and warranties contained in the Loan Agreement and the other Financing
Agreements are true and correct in all material respects, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of such earlier
date);







 




			
	1	 	Each LIBO Rate borrowing shall be in an
aggregate amount of at least $2,000,000.00 and an integral multiple of
$100,000.00.




 









 











	(b)	 	no law, regulation, order, judgment or decree of any Governmental Authority exists, and no
action, suit, investigation, litigation or proceeding is pending or threatened in any court or
before any arbitrator or Governmental Authority, which (i) purports to enjoin, prohibit,
restrain or otherwise affect (A) the making of the proposed Borrowing, or (B) the consummation
of the transactions contemplated pursuant to the terms of the Loan Agreement or the other
Financing Agreements or (ii) has or could reasonably be expected to have a material adverse
effect on the assets, business or prospects of Borrower or would impair the ability of
Borrower to perform its obligations under the Loan Agreement or under any of the other
Financing Agreements or of either Agent or any Lender to enforce any Obligations or realize
upon any of the Collateral;
	 
	(c)	 	no Event of Default has occurred and is continuing; and
	 
	(d)	 	after giving effect to the proposed Borrowing set forth in Section 2 above, there will be no
more than ten (10) Interest Periods in effect.





	 	 	 	 	 
	 	ULTA SALON COSMETICS & FRAGRANCE, INC.,

as Borrower

 	 
	 	By:  	 	 
	 	Name:	 	 	 
	 	Title:	 	 	 
	 




 











 





EXHIBIT G




Reserved



xiii









 





EXHIBIT H




Reserved



xiv









 





EXHIBIT I



Form of Borrowing Base Certificate




BORROWING BASE REPORT




	 	 	 	 	 	 	 	 	 

	To:

	 	Kim Miles (wfrfwires@wellsfargo.com)
	 	 	 	From:
	 	ULTA Salon, Cosmetics & Fragrance, Inc.
	 

	 	Wells Fargo Capital Finance
	 	 	 	 	 	1135 Arbor Drive
	 

	 	One Boston Place, 18th Floor
	 	 	 	 	 	Romeoville, IL 60446
	 

	 	Boston, MA 02108
	 	 	 	 	 	Attention: Dora West
	 

	 	Fax: 1 866-358-0023 Phone: (617) 624-4487
	 	 	 	 	 	Phone: (630) 410-4819
	 
	 	 	 	 	 	 	 	 
	 

	 	                                        Wednesday	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 

	Inventory
	 	 	 	 	 	 	 	 
	1. Inventory       per perpetual inventory report as of                    
	 	$	 	 	 	 	 	 
	2. Plus: Inventory not maintained on perpetual system
	 	$	—	 	 	 	 	 
	3. Less: a. Consigned Inventory
	 	$	—	 	 	 	 	 
	b. Shrink Reserve
	 	$	 	 	 	 	 	 
	c. Supplies & Cabinetry
	 	$	 	 	 	 	 	 
	d. Gift Certificates
	 	 	 	 	 	 	 	 
	4. Eligible Inventory
	 	$	—	 	 	 	—	 
	5. Advance Ratio, Per Loan Agreement
	 	 	80	%	 	 	85	%
	6. Maximum Facility before Availability Reserves
	 	$	—	 	 	 	—	 
	7. Availability Reserves:       a) Stores w/o Landlord Lien Waivers (as of 10/21/09)
	 	$	—	 	 	 	—	 
	8. Maximum Facility
	 	$	—	 	 	 	—	 
	 
	 	 	 	 	 	 
	8a Notional Limit
	 	$	200,000,000	 	 	 	200,000,000	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Loan and Letter of Credit Outstanding
	 	 	 	 	 	 	 	 
	9. Beginning Loan Balance       Line 14 from previous day.
	 	$	—	 	 	 	—	 
	10. Less: Money Transfer Applied to Balance since Last Report (Loan Reduction)
	 	$	—	 	 	 	—	 
	11. Current Revolving Loan Balance
	 	$	—	 	 	 	—	 
	12. Advance Request
	 	$	—	 	 	 	—	 
	13. Interest/Fees/Adjustments
	 	$	—	 	 	 	—	 
	 
	 	 	 	 	 	 
	Net change =
	 	 	 	 	 	 	—	 
	14. Total Revolving Loans
	 	$	—	 	 	 	—	 
	 
	 	 	 	 	 	 
	15. Letters of Credit Outstanding
	 	$	—	 	 	 	—	 
	 
	 	 	 	 	 	 
	16. Total Revolving Loans and Letters of Credit
	 	$	—	 	 	 	—	 
	 
	 	 	 	 	 	 
	17. Excess Availability
	 	$	—	 	 	 	—	 
	 
	 	 	 	 	 	 




The undersigned represents and warrants to Wells Fargo Bank, N.A. (“Wells Fargo”) that the
information included as part of this Report is complete
and correct, the values of the inventory included as part of this Report have been determined in a
manner consistent with the prior reports
previously furnished to Wells Fargo pursuant to the Loan Agreement, all of the inventory included
in the amounts referred to as part
of this Report is owned exclusively by the undersigned free and clear of any claims, security
interests or other encumbrances
except as those permitted under the Loan Agreement and none of such inventory represents goods
acquired or held by the
undersigned on consignment or approval. The undersigned acknowledges that the loans by Wells Fargo
Bank, N.A. to the undersigned are based
upon Wells Fargo’s reliance on the information included as a part of this Report and all
representations and warranties with respect to
inventory in the Loan Agreement are applicable to the inventory referred to as part of this Report
and shall be deemed made again
to Wells Fargo as of the date of this Report. The reliance by Wells Fargo on this Report should
not be deemed to limit the right of
Wells Fargo to establish or revise criteria of eligibility as to the inventory or to otherwise
limit, impair or affect the rights of Wells Fargo
under the Loan Agreement.




ULTA Salon, Cosmetics & Fragrance Inc.




	 	 	 	 	 

	By: 

Its:

	 	Dora West
 

Director of Treasury Services
	 	 






Extra Cash                               



xv









 




EXHIBIT J


Investment
Policy







Policy: Investment/Cash Management




	 	 	 	 	 	 	 
	Policy No.:

	 	A008
	 	Prepared by:
	 	D. West
	Policy Owner:

	 	Treasury
	 	Approved by:
	 	R. Weber
	Attachments:

	 	None
	 	Revision date:
	 	01/06/10
	 

	 	 	 	Effective date:
	 	07/25/06






Purpose and Scope



To establish guidelines for cash management and investment procedures that will prudently protect
Ulta’s surplus funds and enable Ulta to generate a fair rate of return from its investment
activities.



For the purposes of this policy, the Chief Financial Officer, Director of Treasury Services,
Treasury staff, and any of their appointees, have the roles and responsibilities as defined in the
policy for the investment activities of Ulta as a whole. This policy does not cover investments
related to the Company’s 401(k) pension plan, which are governed by a separate set of written
guidelines.




Roles and Responsibilities



Roles and responsibilities of the parties involved in the cash management and investment procedures
are specified below:




Board of Directors





	§	 	Approving the policy






	§	 	Approving major policy exceptions (e.g., new investment types)






	§	 	Reviewing the policy annually and approving policy revisions






	§	 	Approving all derivative and hedging strategies






	§	 	Approving all loan agreements





Chief Financial Officer





	§	 	Approving investment strategy






	§	 	Approving minor policy exceptions (e.g., amounts, terms)






	§	 	Setting performance metrics





Director of Treasury Services





	§	 	Serving as policy custodian






	§	 	Developing investment strategy






	§	 	Distributing and implementing policy and revisions





Treasury Staff





	§	 	Overseeing investment activities






	§	 	Recommending variations in set amounts or terms






	§	 	Collecting performance information





Confidential Information

Do Not Distribute Outside of ULTA




1









 









Policy



Ulta’s cash position will be monitored on a daily basis. Investments shall be undertaken in a
manner that seeks to ensure the preservation of capital and shall remain sufficiently liquid to
meet all operating or cash flow requirements.



Investments are restricted to short-term investments as defined in the policy and as determined by
Ulta’s Treasury department in accordance with this policy.



The investment portfolio will have an average maturity of 9 months or less and a maximum maturity
of 18 months for any single investment.



No investment shall be made in excess of $5 million U.S. equivalent with any single institution, or
$10 million U.S. equivalent with any combination of institutions under common ownership. The one
exception to this guideline is overnight investments made through the banks in a revolving credit
agreement.




Approved List of Investments



The following instruments are approved for investment:





	§	 	Bank Deposits






	§	 	Domestic Certificates of Deposit






	§	 	Domestic Commercial Paper (Rated A1/P1)






	§	 	Bankers’ Acceptances






	§	 	U.S. Treasury Bills and Notes






	§	 	Collateralized Repurchase Agreements






	§	 	Eurodollar Time Deposits





Investment Requirements





	§	 	Active investments with outside money managers are prohibited.






	§	 	To minimize foreign exchange exposure, all investments must be denominated in U.S. dollars.






	§	 	All issuers of commercial paper must be U.S. corporations.






	§	 	Repurchase agreements must be fully collateralized by any of the securities approved under
this investment policy. The current market value of the collateral must cover the principal
amount of the investment at all times during the term of the investment.






	§	 	The average duration of any short-term investment portfolio must not exceed nine months.






	§	 	No monies may be invested in securities lacking an active secondary market.






	§	 	All new types of investments not on the approved list of investments must pass a formal
review process that evaluates all related risks.






	§	 	Cash receipts from coupon and interest payments shall be handled by Accounting.






	§	 	Investments in banks and domestic corporations under this policy are subject to the
following additional limitations:





Confidential Information

Do Not Distribute Outside of ULTA




2









 











	 	§	 	U.S. banks must have total assets of at least $40 billion, have an ongoing credit
relationship with Ulta, and an investment rating of A1-P1 or equivalent.
	 
	 	§	 	Issuing corporations must have a commercial paper rating of P-1 or better by Moody’s
Investor Services and A-1 or better by Standard & Poor’s or an equivalent rating by
another nationally recognized rating agency (at least two ratings are required).




Any exceptions to the above must be approved by the Audit Committee of the Board of Directors.



The Director of Treasury Services and Chief Financial Officer must be notified immediately if any
of the following events occur:





	 	§	 	The market value of any investment instrument drops below 90% of the amortized value.
	 
	 	§	 	The market value of the total portfolio drops below 90% of the total cost value.
	 
	 	§	 	Any significant rating downgrade for any instrument.





Custody of Securities



All of the financial institutions in which Ulta is eligible to invest, subject to the Investment
Requirements listed in this document, are also authorized to hold investments in custody on behalf
of Ulta. Ulta will not take physical possession of investment securities.




Exception Management



Any exceptions to this policy must be approved in writing. For minor exceptions, such as nominal
amounts exceeding investment limits on approved investments, the written approval of the Chief
Financial Officer is required. For major exceptions, such as purchasing a new type of investment
instrument not on the list of approved investments, the written approval of the Board of Directors
is required.




Performance Measurement and Reporting



The Treasury staff shall prepare weekly performance reports and deliver a monthly report to the
Chief Financial Officer. An annual report to the Board of Directors detailing the investment
portfolio’s composition and performance will be provided.




Segregation of Duties



For the purpose of cash management and investment, Ulta’s policy is to ensure that the following
internal controls are in place to maintain adequate segregation of duties:





	§	 	The separation of transaction authority from accounting and record keeping.






	§	 	The separation of wire transfer and investment transaction duties. Non-repetitive wire
transfers must be performed by a party outside the investment management process (excluding
overnight investments).





Confidential Information

Do Not Distribute Outside of ULTA




3









 











	§	 	The separation of record keeping with the reconciliation of company transactions with those
reported by the third party custodian.




The Treasury staff shall have responsibility and authority over internal controls; however,
controls may be removed only with the written consent of the Chief Financial Officer.




Internal Controls



In addition to the segregation of duties controls, Ulta’s policy must ensure that the following
internal controls are enforced:





	§	 	A monthly reconciliation of investment statements to the general ledger accounts shall be
performed and the results delivered to the Chief Financial Officer and the Director of
Treasury Services.






	§	 	All banks, brokers and custodians must carry adequate liability and crime coverage.





Questions



Questions or issues regarding the interpretation or implementation of this policy should be
directed to the Director of Treasury Services.




Confidential Information

Do Not Distribute Outside of ULTA





4











 





EXHIBIT K




Form of Credit Card Notification



Please see attached



xvii









 





Exhibit K




LETTER OF INSTRUCTION




[                    ], 2010



[Name of Credit Card Processor]




	 	 	 	 	 

	 	 	 
	 
	 	 	 	 
	 	 	 
	Attn:
	 	 	 	 
	 

	 	 

	 	 







			
	     Re:	 	Security Agreement — Assignment of Credit Card Receivables




Dear Sir/Madam:



ULTA SALON, COSMETICS & FRAGRANCE, INC. (the “Company”) has recently entered into a new
credit facility with WELLS FARGO BANK, NATIONAL ASSOCIATION, as agent for certain lenders (the
“Secured Party”). In accordance with the terms of that credit facility, the Company
granted to Secured Party a security interest in substantially all of the Company’s now owned or
hereafter acquired personal property, including, without limitation, all rights of the Company to
receive payments in respect of credit or charge card sales (“Card Sales”) processed or
otherwise paid by [Name of Credit Card Processor] (the “Processor”) to the Company pursuant
to that certain [Title of Credit Card Processing Agreement] between the Processor and the Company
in effect as of the date hereof (the “Agreement”).



Pursuant to the facility, the Company has assigned to Secured Party the right to receive payments
with respect to all Card Sales and to otherwise directly collect all amounts due to the Company
from the Processor. In furtherance thereof, the Company is obligated to arrange for the proceeds
of Card Sales to be routed by the Processor to a deposit account under the control of the Secured
Party, as opposed to the account routing instructions that are presently in place. Accordingly, by
this letter the Company and the Secured Party instruct the Processor to immediately begin routing
all proceeds of Card Sales and any other amounts due to the Company from the Processor to the
following deposit account (the “Account”):



[Name of Bank]

[Bank’s Address]

ABA #                    

For Credit to the Account of: [Name of Debtor]

Account No.                    



All payments under the Agreement should continue to be made to the Account and to no other account
unless and until you receive written notification from Secured Party.



The Company acknowledges and agrees that, except as expressly set forth herein, all of the terms of
the Agreement continue to be in full force and effect.



The Company and the Secured Party appreciate the Processor’s anticipated cooperation and assistance
in effectuating this change. Should you have any questions concerning this matter, please do not
hesitate to contact the Company or the Secured Party at the contact information below.




[Signature Pages Follow]






 









 








	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	ULTA SALON, COSMETICS & FRAGRANCE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Ulta Salon, Cosmetics & Fragrance, Inc.	 	 
	 	 	Suite 120	 	 
	 	 	1000 Remington Blvd.	 	 
	 	 	Bolingbrook, IL 60440-4708	 	 
	 	 	Attention: Gregg Bodnar	 	 
	 	 	Telephone No.: (630) 410-4633	 	 
	 	 	Telecopy No.: (630) 410-4864	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Wells Fargo Bank, National Association	 	 
	 	 	One Boston Place	 	 
	 	 	Boston, Massachusetts 02109	 	 
	 	 	Attention: Jason Searle	 	 
	 	 	Telephone No.: (617) 854-7292	 	 
	 	 	Telecopy No.:                     	 	 





[Signature
Page to Credit Card Notification]


 











 





SCHEDULE I



LENDERS AND PRO RATA SHARES



	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment Amount	 	Pro Rata Share
	Wells Fargo Bank, National Association
	 	$	90,000,000.00	1	 	 	45.000000000	%
	JPMorgan Chase Bank, N.A.
	 	$	70,000,000.00	 	 	 	35.000000000	%
	PNC Bank, National Association
	 	$	40,000,000.00	 	 	 	20.000000000	%
	TOTALS
	 	$	200,000,000.00	 	 	 	100	%








 




			
	1	 	This amount includes Swing Line Commitment Amount of $10,000,000.




xviii









 






SCHEUDLE II




Cash Management Services and Bank Products


JPMorgan Chase Bank, N.A. Accounts:




	 	 	 	 	 
	STATE	 	ACCOUNT #
	 
	CA
	 	 	
 886076108 	 
	CO
	 	 	
 191980448 	 
	IN
	 	 	
 630741668 	 
	KY
	 	 	
 624003638 	 
	LA
	 	 	
 722598398 	 
	FL
	 	 	
 887078723 	 
	NY
	 	 	
 209043296 	 
	OK
	 	 	
 817038334 	 
	TX
	 	 	
 1889860670 	 
	UT
	 	 	
 722597838 	 
	UT
	 	 	
 722598521 	 
	WI
	 	 	
 675517445 	 





PNC Bank, National Association Account:



Depository Account #  1138340707 



Wells Fargo Bank, National Association Accounts:






 200000-344-3688 


 4496875907 


 4010018679 


 4945002293 


 4435743745 


 4121184550 


 4121719199