exv10w5





Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. The omissions have been indicated by asterisks (“*****”), and the omitted text has been filed separately with the Securities and Exchange Commission.




 





Exhibit 10.5




CREDIT AGREEMENT




Dated as of July 31, 2009




among




QUIKSILVER AMERICAS, INC.

as the Lead Borrower




The Other Borrowers From Time to Time Party Hereto




The Guarantors From Time to Time Party Hereto




BANK OF AMERICA, N.A.

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




BANK OF AMERICA, N.A. (acting through its Canada branch)

as Canadian Agent




BANK OF AMERICA, N.A.

GENERAL ELECTRIC CAPITAL CORPORATION

as Co-Collateral Agents,




and




The Other Lenders Party Hereto




BANK OF AMERICA, N.A.,

as Syndication Agent




BANC OF AMERICA SECURITIES LLC

GE CAPITAL MARKETS, INC.

as Joint Lead Arrangers

and Joint Bookrunners




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section
	 	 	 	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	63	 
	1.03 Accounting Terms; Currency Equivalents
	 	 	64	 
	1.04 Rounding
	 	 	64	 
	1.05 Times of Day
	 	 	64	 
	1.06 Letter of Credit Amounts
	 	 	64	 
	1.07 Certifications
	 	 	65	 
	1.08 Currency Equivalents Generally
	 	 	65	 
	1.09 Québec Matters
	 	 	65	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	65	 
	 
	 	 	 	 
	2.01 Committed Loans; Reserves
	 	 	65	 
	2.02 Committed Borrowings, Conversions and Continuations of Committed Loans
	 	 	67	 
	2.03 Letters of Credit
	 	 	70	 
	2.04 Swing Line Loans
	 	 	78	 
	2.05 Prepayments
	 	 	82	 
	2.06 Termination or Reduction of Commitments
	 	 	83	 
	2.07 Repayment of Loans
	 	 	84	 
	2.08 Interest
	 	 	84	 
	2.09 Fees
	 	 	85	 
	2.10 Computation of Interest and Fees
	 	 	86	 
	2.11 Evidence of Debt
	 	 	87	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	88	 
	2.13 Sharing of Payments by Lenders
	 	 	89	 
	2.14 Settlement Amongst Lenders
	 	 	90	 
	2.15 Increase in Commitments
	 	 	91	 
	2.16 CFC Payments
	 	 	93	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER
	 	 	93	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	93	 
	3.02 Illegality
	 	 	95	 
	3.03 Inability to Determine Rates
	 	 	95	 
	3.04 Increased Costs; Reserves on LIBO Rate Loans
	 	 	96	 
	3.05 Compensation for Losses
	 	 	97	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	98	 
	3.07 Survival
	 	 	98	 
	3.08 Designation of Lead Borrower as Borrowers’ Agent
	 	 	98	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	99	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	99	 
	4.02 Conditions to all Credit Extensions
	 	 	102	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	103	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	103	 






(i)









 






	 	 	 	 	 
	 	 	Page	 
	5.02 Authorization; No Contravention
	 	 	103	 
	5.03 Governmental Authorization; Other Consents
	 	 	104	 
	5.04 Binding Effect
	 	 	104	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	104	 
	5.06 Litigation
	 	 	105	 
	5.07 No Default
	 	 	105	 
	5.08 Ownership of Property; Liens
	 	 	105	 
	5.09 Environmental Compliance
	 	 	105	 
	5.10 Insurance
	 	 	106	 
	5.11 Taxes
	 	 	106	 
	5.12 Plans
	 	 	106	 
	5.13 Subsidiaries; Equity Interests
	 	 	107	 
	5.14 Margin Regulations; Investment Company Act
	 	 	107	 
	5.15 Disclosure
	 	 	107	 
	5.16 Compliance with Laws
	 	 	107	 
	5.17 Intellectual Property; Licenses, Etc
	 	 	108	 
	5.18 Labor Matters
	 	 	108	 
	5.19 Security Documents
	 	 	108	 
	5.20 Solvency
	 	 	109	 
	5.21 Deposit Accounts; Credit Card Arrangements
	 	 	109	 
	5.22 Brokers
	 	 	109	 
	5.23 Customer and Trade Relations
	 	 	109	 
	5.24 Material Contracts
	 	 	109	 
	5.25 Casualty
	 	 	110	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	110	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	110	 
	6.02 Certificates; Other Information
	 	 	111	 
	6.03 Notices
	 	 	113	 
	6.04 Payment of Obligations
	 	 	114	 
	6.05 Preservation of Existence, Etc
	 	 	115	 
	6.06 Maintenance of Properties
	 	 	115	 
	6.07 Maintenance of Insurance
	 	 	115	 
	6.08 Compliance with Laws
	 	 	116	 
	6.09 Books and Records
	 	 	116	 
	6.10 Inspection Rights
	 	 	116	 
	6.11 Use of Proceeds
	 	 	117	 
	6.12 Additional Loan Parties
	 	 	117	 
	6.13 Cash Management
	 	 	118	 
	6.14 Information Regarding the Collateral
	 	 	120	 
	6.15 Physical Inventories
	 	 	120	 
	6.16 Environmental Laws
	 	 	121	 
	6.17 Further Assurances
	 	 	121	 
	6.18 Intentionally Omitted
	 	 	122	 
	6.19 Material Contracts
	 	 	122	 
	6.20 Canadian Pension Benefit Plans
	 	 	122	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	122	 
	 
	 	 	 	 
	7.01 Liens
	 	 	123	 
	7.02 Investments
	 	 	123	 
	7.03 Indebtedness
	 	 	123	 






(ii)









 






	 	 	 	 	 
	 	 	Page	 
	7.04 Fundamental Changes
	 	 	123	 
	7.05 Dispositions
	 	 	124	 
	7.06 Restricted Payments
	 	 	124	 
	7.07 Prepayments of Indebtedness
	 	 	125	 
	7.08 Change in Nature of Business
	 	 	125	 
	7.09 Transactions with Affiliates
	 	 	125	 
	7.10 Burdensome Agreements
	 	 	125	 
	7.11 Use of Proceeds
	 	 	126	 
	7.12 Amendment of Material Documents
	 	 	126	 
	7.13 Fiscal Year
	 	 	126	 
	7.14 Deposit Accounts; Credit Card Processors
	 	 	126	 
	7.15 Financial Covenants
	 	 	126	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	127	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	127	 
	8.02 Remedies Upon Event of Default
	 	 	130	 
	8.03 Application of Funds
	 	 	130	 
	8.04 Waivers By Loan Parties
	 	 	134	 
	 
	 	 	 	 
	ARTICLE IX AGENTS AND LENDERS
	 	 	135	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	135	 
	9.02 Rights as a Lender
	 	 	136	 
	9.03 Exculpatory Provisions
	 	 	136	 
	9.04 Reliance by Agents
	 	 	137	 
	9.05 Delegation of Duties
	 	 	137	 
	9.06 Resignation of Agents
	 	 	138	 
	9.07 Non-Reliance on Agents, Canadian Agent and Other Lenders
	 	 	139	 
	9.08 No Other Duties, Etc
	 	 	139	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	139	 
	9.10 Collateral and Guaranty Matters
	 	 	140	 
	9.11 Notice of Transfer
	 	 	141	 
	9.12 Reports and Financial Statements
	 	 	141	 
	9.13 Agency for Perfection
	 	 	142	 
	9.14 Indemnification of Agents and Canadian Agent
	 	 	142	 
	9.15 Relation among Lenders
	 	 	142	 
	9.16 Defaulting Lender
	 	 	142	 
	9.17 Actions In Concert
	 	 	143	 
	9.18 Collateral Issues
	 	 	143	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	144	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	144	 
	10.02 Notices; Effectiveness; Electronic Communications
	 	 	145	 
	10.03 No Waiver; Cumulative Remedies
	 	 	147	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	147	 
	10.05 Reinstatement; Payments Set Aside
	 	 	148	 
	10.06 Successors and Assigns
	 	 	149	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	152	 
	10.08 Right of Setoff
	 	 	153	 
	10.09 Interest Rate Limitation
	 	 	153	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	154	 
	10.11 Survival
	 	 	154	 






(iii)









 






	 	 	 	 	 
	 	 	Page	 
	10.12 Severability
	 	 	154	 
	10.13 Replacement of Lenders
	 	 	154	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	155	 
	10.15 Waiver of Jury Trial
	 	 	156	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	156	 
	10.17 USA PATRIOT Act Notice; Proceeds of Crime Act
	 	 	157	 
	10.18 Foreign Asset Control Regulations
	 	 	157	 
	10.19
	 	 	157	 
	10.20 Time of the Essence
	 	 	157	 
	10.21 Foreign Subsidiaries
	 	 	157	 
	10.22 Press Releases
	 	 	158	 
	10.23 Additional Waivers
	 	 	158	 
	10.24 Judgment Currency
	 	 	160	 
	10.25 No Strict Construction
	 	 	160	 
	10.26 Attachments
	 	 	160	 
	10.27 Conflict of Terms
	 	 	160	 
	[SIGNATURE PAGES FOLLOW]
	 	 	160	 
	SIGNATURES
	 	 	S-1	 






(iv)









 






	 	 	 	 	 	 	 
	SCHEDULES	 	 
	 

	 	 	1.01	 	 	Domestic Borrowers
	 
	 	 	 	 	 	 
	 

	 	 	1.02	 	 	Guarantors
	 
	 	 	 	 	 	 
	 

	 	 	2.01	 	 	Commitments and Applicable Percentages
	 
	 	 	 	 	 	 
	 

	 	 	4.01	(a)(x)	 	Security Documents
	 
	 	 	 	 	 	 
	 

	 	 	4.01
	(a)(xi)	 	Other Loan Documents
	 
	 	 	 	 	 	 
	 

	 	 	5.01	 	 	Loan Parties’ Organizational Information
	 
	 	 	 	 	 	 
	 

	 	 	5.05	 	 	Material Indebtedness
	 
	 	 	 	 	 	 
	 

	 	 	5.08	(b)(1)	 	Owned Real Estate
	 
	 	 	 	 	 	 
	 

	 	 	5.08	(b)(2)	 	Leased Real Estate
	 
	 	 	 	 	 	 
	 

	 	 	5.10	 	 	Insurance
	 
	 	 	 	 	 	 
	 

	 	 	5.13	 	 	Subsidiaries, including Immaterial Subsidiaries; Other Equity Investments
	 
	 	 	 	 	 	 
	 

	 	 	5.21	(a)	 	DDAs
	 
	 	 	 	 	 	 
	 

	 	 	5.21	(b)	 	Credit Card Arrangements
	 
	 	 	 	 	 	 
	 

	 	 	5.22	 	 	Brokers
	 
	 	 	 	 	 	 
	 

	 	 	5.24	 	 	Material Contracts
	 
	 	 	 	 	 	 
	 

	 	 	6.02	 	 	Financial and Collateral Reporting
	 
	 	 	 	 	 	 
	 

	 	 	7.01	 	 	Existing Liens
	 
	 	 	 	 	 	 
	 

	 	 	7.02	 	 	Existing Investments
	 
	 	 	 	 	 	 
	 

	 	 	7.03	 	 	Existing Indebtedness
	 
	 	 	 	 	 	 
	 

	 	 	7.10	 	 	Existing Restrictions
	 
	 	 	 	 	 	 
	 

	 	 	10.02	 	 	Administrative Agent’s Office; Canadian Agent’s Office; Certain Addresses for Notices






	 	 	 	 	 

	EXHIBITS	 	 
	 
	 	 	 	 
	 

	 	 	 	Form of
	 
	 	 	 	 
	 

	 	A-1
	 	Domestic Committed Loan Notice






(v)









 






	 	 	 	 	 

	 

	 	A-2
	 	Canadian Committed Loan Notice
	 
	 	 	 	 
	 

	 	B-1
	 	Domestic Swing Line Loan Notice
	 
	 	 	 	 
	 

	 	B-2
	 	Canadian Swing Line Loan Notice
	 
	 	 	 	 
	 

	 	C-1
	 	Canadian Note
	 
	 	 	 	 
	 

	 	C-2
	 	Domestic Note
	 
	 	 	 	 
	 

	 	C-3
	 	Canadian Swing Line Note
	 
	 	 	 	 
	 

	 	C-4
	 	Domestic Swing Line Note
	 
	 	 	 	 
	 

	 	D
	 	Compliance Certificate
	 
	 	 	 	 
	 

	 	E-1
	 	Assignment and Assumption (Domestic Lenders)
	 
	 	 	 	 
	 

	 	E-2
	 	Assignment and Assumption (Canadian Lenders)
	 
	 	 	 	 
	 

	 	F-1
	 	Joinder Agreement — Domestic Loan Parties
	 
	 	 	 	 
	 

	 	F-2
	 	Joinder Agreement — Canadian Loan Parties
	 
	 	 	 	 
	 

	 	G
	 	Borrowing Base Certificate
	 
	 	 	 	 
	 

	 	H
	 	Credit Card Processor Notification
	 
	 	 	 	 
	 

	 	I-1
	 	Collateral Access Agreement — Domestic Loan Parties
	 
	 	 	 	 
	 

	 	I-2
	 	Collateral Access Agreement — Canadian Loan Parties
	 
	 	 	 	 
	 

	 	J-1
	 	Customs Broker Agent Agreement (Domestic Loan Parties)
	 
	 	 	 	 
	 

	 	J-2
	 	Customs Broker Agent Agreement (Canadian Loan Parties)
	 
	 	 	 	 
	 

	 	K-1
	 	Domestic Guarantee
	 
	 	 	 	 
	 

	 	K-2
	 	Canadian Guarantee






(vi)









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of July 31, 2009, among



     QUIKSILVER AMERICAS, INC., a California corporation (the “Lead Borrower”);



     QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company (the “Canadian
Borrower”),



     the Persons named on Schedule 1.01 hereto (collectively, with the Lead Borrower and
each other Person that from time to time becomes a “Domestic Borrower” hereunder, the “Domestic
Borrowers”);



     QUIKSILVER, INC., a Delaware corporation (the “Parent”);



     the Persons named on Schedule 1.02 hereto (collectively, with each other Person that
from time to time becomes a “Guarantor” hereunder, the “Guarantors”);



     each lender from time to time party hereto;



     BANK OF AMERICA, N.A., as Administrative Agent, Syndication Agent, Swing Line Lender and L/C
Issuer;



     BANK OF AMERICA, N.A. (acting through its Canada branch), as Canadian Agent, Swing Line Lender
and L/C Issuer; and



     BANK OF AMERICA, N.A. and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Collateral Agents.



     The Borrowers have requested that the Lenders provide certain revolving credit facilities, and
the Lenders have indicated their willingness to lend and the L/C Issuer has indicated its
willingness to issue Letters of Credit, in each case on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Accelerated Borrowing Base Delivery Event” means either (i) the occurrence and
continuance of any Event of Default, or (ii) the failure of the Borrowers to maintain Domestic
Availability at least equal to the greater of (x) twenty percent (20%) of the Total Loan Cap or (y)
$30,000,000. For purposes of this Agreement, the occurrence of an Accelerated Borrowing Base
Delivery Event shall be deemed continuing (i) so long as such Event of Default is continuing,
and/or (ii) if the Accelerated Borrowing Base Delivery Event arises as a result of the Domestic
Borrowers’ failure to maintain Domestic Availability as required in clause (ii) of the immediately
preceding sentence, until Domestic Availability has equaled or exceeded the greater of (x) twenty
percent (20%) of the Total Loan Cap or (y) $30,000,000, for sixty (60) consecutive calendar days,
in which case an Accelerated Borrowing Base Delivery Event shall no longer be deemed to be
continuing for purposes of this Agreement.



-1-









 





     “Acceptable BOL” means with respect to In-Transit Inventory, a tangible, negotiable
bill of lading that (i) is issued by a common carrier which is not an Affiliate of the applicable
foreign vendor or Borrowing Base Party and which is in actual possession of such In-Transit
Inventory or by an Eligible NVOCC; (ii) covers only such In-Transit Inventory; (iii) is issued to
the order of a Domestic Borrower or a Canadian Loan Party or, while an Event of Default exists, if
so requested by any Agent or, with respect to In-Transit Inventory of a Canadian Loan Party, any
Agent, or the Canadian Agent, to the order of the Administrative Agent or the Canadian Agent, as
applicable; (iv) is subject to the Administrative Agent’s or the Canadian Agent’s, as applicable,
first priority Lien and no other Lien that is not a Permitted Encumbrance; and (v) the Agents and,
with respect to In-Transit Inventory of a Canadian Loan Party, the Agents and the Canadian Agent,
have not notified the Lead Borrower or the applicable Canadian Loan Party that such bill of lading
is not in form and content reasonably acceptable to the Agents and, if applicable, the Canadian
Agent.



     “Accommodation Payment” has the meaning provided in Section 10.23(d).



     “Account” means “accounts” as defined in the UCC and in the PPSA, and also means a
right to payment of a monetary obligation, whether or not earned by performance, (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 policy of insurance issued or to be issued, (d) for
a secondary obligation incurred or to be incurred, (e) for energy provided or to be provided, (f)
for the use or hire of a vessel under a charter or other contract, (g) arising out of the use of a
credit or charge card or information contained on or for use with the card, or (h) as winnings in a
lottery or other game of chance operated or sponsored by a state, province, territory, governmental
unit of a state, province or territory, or person licensed or authorized to operate the game by a
state, province, territory or governmental unit of a state, province or territory. The term
“Account” includes health-care-insurance receivables.



     “ACH” means automated clearing house transfers.



     “Acquisition” means, with respect to any Person, (a) an Investment in, or a purchase
of a Controlling interest in, the Equity Interests of any other Person, (b) a purchase or other
acquisition of all or substantially all of the assets or properties of, another Person or of any
business unit of another Person, (c) any merger, amalgamation or consolidation of such Person with
any other Person or other transaction or series of transactions resulting in the acquisition of all
or substantially all of the assets, or a Controlling interest in the Equity Interests, of any
Person, or (d) any acquisition of Store locations of any Person (which, for the avoidance of doubt,
shall exclude lease improvements and Store build-outs) for which the aggregate consideration
payable in connection with such acquisition is $5,000,000 or more in any single transaction or
$10,000,000 or more in the aggregate during the Availability Period, in each case in any
transaction or group of transactions which are part of a common plan.



     “Additional Commitment Lender” has the meaning provided in Section 2.15(c).



     “Adjusted LIBO Rate” means, with respect to any LIBO Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of one percent
(1%)) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate. The Adjusted LIBO Rate will be adjusted automatically as to all LIBO Borrowings then
outstanding as of the effective date of any change in the Statutory Reserve Rate.



     “Adjustment Date” means the first day of each Fiscal Quarter; provided that, the first
Adjustment Date after the Closing Date shall be January 31, 2010.



-2-









 





     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Lead Borrower and the Lenders.



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



     “Affiliate” means, with respect to any Person, (i) another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified, (ii) any other Person directly or indirectly holding 10% or more
of any class of the Equity Interests of that Person, and (iii) any other Person 10% or more of any
class of whose Equity Interests is held directly or indirectly by that Person.



     “Agent Parties” has the meaning specified in Section 10.02(c).



     “Agent(s)” means, individually, the Administrative Agent or any of the Co-Collateral
Agents, and collectively means all of them.



     “Aggregate Canadian Commitments” means the Canadian Commitments of all the Canadian
Lenders. As of the Closing Date, the Aggregate Canadian Commitments are $15,000,000.



     “Aggregate Domestic Commitments” means the Domestic Commitments of all the Domestic
Lenders. As of the Closing Date, the Aggregate Domestic Commitments are $185,000,000.



     “Aggregate Total Commitments” means all Domestic Commitments and all Canadian
Commitments. As of the Closing Date, the Aggregate Total Commitments are $200,000,000.



     “Agreement” means this Credit Agreement.



     “Allocable Amount” has the meaning specified in Section 10.23(d).



     “Americas Consolidated” means, when used to modify a financial term, test, statement,
or report of the Parent, the application or preparation of such term, test, statement or report (as
applicable) based upon the financial condition or operating results of the Parent and the Americas
Subsidiaries, calculated or prepared (as the case may be) as if such entities were a consolidated
group.



     “Americas Subsidiaries” means, collectively, (a) each direct or indirect Domestic
Subsidiary of the Parent, and (b) each Canadian Subsidiary; provided that, in the case of financial
statements referred to in Section 4.01(e)(ii), “Americas Subsidiaries” shall also include
Quiksilver Industria e Comercio de Artigos Esportivos Ltda., Quiksilver Mexico, S. de R. L. de C.V.
and Quiksilver Mexico Service, S. de R. L. de C.V.



     “Applicable Margin” means:




     (a) From and after the Closing Date until the first Adjustment Date, the percentages
set forth in Level II of the pricing grid below, unless the Average Daily Domestic
Availability requirements for Level II (or lower) have not been satisfied, in which event
the Applicable Margin shall be set at Level III. In no event shall the Applicable Margin be
set at Level I prior to



-3-









 






the first Adjustment Date (even if the Average Daily Domestic Availability requirements
for Level I have been satisfied); and




     (b) From and after the first Adjustment Date, the Applicable Margin shall be determined
from the following pricing grid based upon the Average Daily Domestic Availability for the
most recent Fiscal Quarter ended immediately preceding such Adjustment Date;
provided however, that notwithstanding anything to the contrary set forth
herein, upon the occurrence of an Event of Default, any Agent may, and the Administrative
Agent shall at the direction of the Required Lenders, immediately increase the Applicable
Margin to the percentage set forth in Level III which shall apply for so long as such Event
of Default is continuing (even if the Average Daily Domestic Availability requirements for
a different Level have been met and without limiting the right of the Administrative Agent
or the Required Lenders to charge interest at the Default Rate as provided in Section
2.08(b)); provided further that, if any Borrowing Base Certificate is
at any time restated or otherwise revised (including as a result of an audit) or if the
information set forth in any such Borrowing Base Certificate otherwise proves to be false or
incorrect such that the Applicable Margin would have been higher than was otherwise in
effect during any period, without constituting a waiver of any Default or Event of Default
arising as a result thereof, interest due under this Agreement shall be immediately and
retroactively recalculated at such higher rate for any applicable periods and shall be due
and payable (to the extent not already paid) on demand.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Average Daily Domestic	 	LIBOR	 	Domestic Prime	 	Canadian Prime	 	BA Rate
	Level	 	Availability	 	Margin	 	Rate Margin	 	Rate Margin	 	Margin
	 	I	 	 	Equal to or greater
than 66% of the Total Loan Cap
	 	 	4.00	%	 	 	3.00	%	 	 	3.50	%	 	 	4.00	%
	II	 	Less than 66%, but
equal to or greater
than 33%, of the Total Loan Cap
	 	 	4.25	%	 	 	3.25	%	 	 	3.75	%	 	 	4.25	%
	III	 	Less than
33% of the Total Loan Cap
	 	 	4.50	%	 	 	3.50	%	 	 	4.00	%	 	 	4.50	%






     “Applicable Percentage” means (a) with respect to any Canadian Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Canadian Commitments
represented by the Canadian Commitment of such Canadian Lender at such time and (b) with respect to
any Domestic Lender at any time, the percentage (carried out to the ninth decimal place) of the
Aggregate Domestic Commitments represented by the Domestic Commitment of such Domestic Lender at
such time. As to each Lender, if the commitment of each Lender to make Loans and the obligation of
the L/C Issuer to make L/C Credit Extensions has been terminated pursuant to Section 8.02
or if the Aggregate Total Commitments have expired, then the Applicable Percentage of each Lender
shall be determined based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is
set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, at any time of calculation, a per annum rate equal to the
Applicable Margin for Loans which are LIBO Rate Loans.



     “Appraisal Percentage” means eighty-five percent (85%).



-4-









 





     “Appraised Value” means the appraised orderly liquidation value, net of costs and
expenses to be incurred in connection with any such liquidation, which value is expressed as a
percentage of Cost of the Borrowing Base Parties’ Eligible Inventory as set forth in the Borrowing
Base Parties’ inventory stock ledger, which value shall be determined from time to time by the most
recent appraisal undertaken by an independent appraiser engaged by any Agent.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) a
Lender Affiliate of a Lender or (c) an entity or Lender Affiliate of an entity that administers or
manages a Lender.



     “Arrangers” means Banc of America Securities LLC and GE Capital Markets, Inc., in
their capacities as joint lead arrangers.



     “Assignee Group” means two or more Eligible Assignees that are Lender Affiliates of
one another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E-1 (Assignment and Assumption (Domestic Lenders)) or Exhibit E-2
(Assignment and Assumption (Canadian Lenders)), as applicable, or any other form approved by the
Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease
Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation (other than any Capital Lease Obligation), the capitalized amount of the remaining
lease or similar payments under the relevant lease or other applicable agreement or instrument that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease, agreement or instrument were accounted for as a capital lease.



     “Audited Financial Statements” means the audited Consolidated balance sheet of the
Parent and its Subsidiaries for the Fiscal Year ended October 31, 2008, and the related
Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such
Fiscal Year of the Parent and its Subsidiaries, including the notes thereto.



     “Auto-Extension Letter of Credit” has the meaning specified in Section
2.03(b)(iii).



     “Availability Condition” means at the time of determination with respect to any
specified transaction or payment, Domestic Availability immediately preceding, and on a pro forma
basis on the date thereof and a projected basis for the twelve (12) months immediately following,
such transaction or payment was, and is projected to be, equal to or greater than the greater of
(a) thirty percent (30%) of the Total Loan Cap and (b) $45,000,000.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Total Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.



     “Availability Reserves” means, without duplication of any other Reserves or items that
are otherwise addressed or excluded through eligibility criteria, such reserves as any Agent from
time to time determines in its Permitted Discretion as reflecting (a) any impediments to (i) the
Administrative Agent’s ability to realize upon the Collateral included in the Domestic Borrowing
Base or (ii) the Canadian



-5-









 




Agent’s ability to realize upon the Collateral included in the Canadian Borrowing Base, (b)
claims and liabilities that (i) any Agent determines in its Permitted Discretion will need to be
satisfied in connection with the realization upon the Collateral included in the Domestic Borrowing
Base or (ii) the Canadian Agent determines in its Permitted Discretion will need to be satisfied in
connection with the realization upon the Collateral included in the Canadian Borrowing Base, (c)
criteria, events, conditions, contingencies or risks which adversely affect any component of the
Domestic Borrowing Base or the Canadian Borrowing Base, or the assets, business, financial
performance or financial condition of any Borrowing Base Party, or (d) that a Default or an Event
of Default then exists. Without limiting the generality of the foregoing, by way of example and not
limitation, Availability Reserves may include (but are not limited to), in any Agent’s Permitted
Discretion, or with respect to Collateral included in the Canadian Borrowing Base, any Agent’s or
the Canadian Agent’s Permitted Discretion, reserves based on: (i) rent; (ii) customs duties,
freight charges, taxes, tariffs insurance charges and other charges that may reasonably be expected
to come due with respect to any Eligible In-Transit Inventory or any Inventory associated with any
Eligible Letter of Credit and other costs associated with Inventory of any Borrowing Base Party
which is being imported into the United States or Canada; (iii) outstanding Taxes and other
governmental charges due and owing by any Borrowing Base Party but unpaid, including, without
limitation, ad valorem, real estate, personal property, sales, goods and services, claims of PBGC
and other Governmental Authorities in respect of Plans and other Taxes due and owing by any
Borrowing Base Party which may be subject to Liens that have priority over or are pari passu with
the Liens of the Administrative Agent or the Canadian Agent in the Collateral; (iv) salaries,
wages, vacation pay and benefits due and owing to employees of any Loan Party but unpaid and
Canadian Priority Payable Reserves; (v) Customer Credit Liabilities; (v) reserves for reasonably
anticipated changes in the Appraised Value of Eligible Inventory between appraisals; (vi) unpaid
warehousemen’s or bailee’s charges due and owing by any Borrowing Base Party relating to Inventory
of any Borrowing Base Party and other Permitted Encumbrances which may have priority over or are
pari passu with the Liens of the Administrative Agent or the Canadian Agent in the Collateral;
(vii) amounts due to vendors on account of consigned goods of any Borrowing Base Party; (viii) Cash
Management Reserves; (ix) Bank Products Reserves; and (x) Dilution Reserves. Upon the
determination by any Co-Collateral Agent in its Permitted Discretion that an Availability Reserve
should be established or modified, such Co-Collateral Agent shall notify the Administrative Agent
and, if applicable, the Canadian Agent, in writing and the Administrative Agent shall thereupon
establish or modify such Availability Reserve, subject to the provisions of Section 9.18.




     “Average Daily Domestic Availability” means, as of any date of determination, the
average daily Domestic Availability for the immediately preceding Fiscal Quarter.



     “BA Equivalent Loan” means any Canadian Loan in CD$ bearing interest at a rate
determined by reference to the BA Rate in accordance with the provisions of Article II.



     “BA Equivalent Loan Borrowing” means any Committed Borrowing comprised of BA
Equivalent Loans.



     “BA Rate” means, for the Interest Period of each BA Equivalent Loan, the rate of
interest per annum equal to the annual rates applicable to CD$ bankers’ acceptances having an
identical or comparable term as the proposed BA Equivalent Loan displayed and identified as such on
the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuter Monitor
Money Rates Service as at approximately 10:00 A.M. (Toronto time) on such day (or, if such day is
not a Business Day, as of 10:00 A.M. (Toronto time) on the immediately preceding Business Day),
plus five (5) basis points; provided that if such rates do not appear on the CDOR
Page at such time on such date, the rate for such date will be the annual discount rate (rounded
upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 A.M. on such day at which a
Canadian chartered bank listed on Schedule 1 of the Bank Act



-6-









 




(Canada) as selected by the Canadian Agent is then offering to purchase CD$ bankers’
acceptances accepted by it having such specified term (or a term as closely as possible comparable
to such specified term), plus five (5) basis points.




     “Bank of America” means Bank of America, N.A., a national banking association, and its
successors.



     “Bank of America-Canada Branch” means Bank of America, N.A. (acting through its Canada
branch), a banking corporation carrying on business under the Bank Act (Canada).



     “Bank of Canada Overnight Rate” means, on any date of determination, the rate of
interest charged by the Bank of Canada on one-day Canadian dollar loans to financial institutions,
for such date.



     “Bank Products” means any services or facilities provided to any Loan Party by
the Administrative Agent, the Canadian Agent, any Lender or any of their respective Lender
Affiliates, including, without limitation, on account of (a) Swap Contracts, (b) purchase cards,
and (c) leasing, but excluding Credit Extensions and Cash Management Services.



     “Bank Product Reserves” means such reserves as the Administrative Agent from time to
time determines in its Permitted Discretion as being appropriate to reflect the liabilities and
obligations of the Loan Parties with respect to Bank Products then provided or outstanding.



     “BAS” means Banc of America Securities LLC and its successors.



     “Blocked Account” has the meaning provided in Section 6.13(a)(ii).



     “Blocked Account Agreement” means, with respect to a Blocked Account established by a
Loan Party, an agreement, in form and substance reasonably satisfactory to the Co-Collateral Agents
and (if a party thereto) the Canadian Agent, establishing control (as defined in the UCC or in the
PPSA, as applicable) of such Blocked Account by the Administrative Agent (for the benefit of itself
and the other Credit Parties) or the Canadian Agent (for the benefit of itself and the other
Canadian Credit Parties) and whereby the bank maintaining such account agrees, upon the occurrence
and during the continuance of a Cash Dominion Event (and delivery of notice thereof from the
Administrative Agent or the Canadian Agent, as applicable, to the Lead Borrower and the Blocked
Account Bank party to such agreement), to comply only with the instructions originated by the
Administrative Agent or the Canadian Agent, as applicable, without the further consent of any Loan
Party.



     “Blocked Account Bank” means Bank of America, N.A., Bank of America-Canada Branch and
each other bank with whom deposit accounts are maintained in which any funds of any of the Loan
Parties from one or more DDAs are concentrated and with whom a Blocked Account Agreement has been,
or is required to be, executed in accordance with the terms hereof.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowers” means, collectively, the Domestic Borrowers and the Canadian Borrower.



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.




-7-











 





     “Borrowing Base Certificate” means a certificate substantially in the form of
Exhibit G hereto (with such changes therein as may be required by any Agent to reflect the
components of and reserves against the Domestic Borrowing Base as provided for hereunder from time
to time, and as may be required by the Canadian Agent or any Agent to reflect the components of and
reserves against the Canadian Borrowing Base as provided for hereunder from time to time), executed
and certified as being accurate and complete in accordance with the terms of the Borrowing Base
Certificate, by a Responsible Officer of the Lead Borrower or the Parent (with respect to the
Domestic Borrowing Base) and any Canadian Loan Party (with respect to the Canadian Borrowing Base)
which shall include appropriate exhibits, schedules, supporting documentation, and additional
reports as reasonably requested in advance by any Agent (with respect to the Domestic Borrowing
Base) or the Canadian Agent or any Agent (with respect to the Canadian Borrowing Base).



     “Borrowing Base Parties” means, collectively, the Domestic Borrowers and the Canadian
Loan Parties, and, in the singular, any one of them.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any LIBO Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank market; provided that, when used in connection with any Loan to the Canadian
Borrower, the term “Business Day” shall also exclude any day on which banks are authorized or
required by Law to be closed in Toronto, Ontario, Canada.



     “Canadian Agent” means Bank of America, N.A. (acting through its Canada branch), for
its own benefit and the benefit of the other Canadian Credit Parties, or any successor Canadian
agent.



     “Canadian Agent’s Office” means the Canadian Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account as the Canadian
Agent may from time to time notify the Canadian Borrower and the Canadian Lenders.



     “Canadian Availability” means, as of any date of determination thereof, the result, if
a positive number, of:




     (a) the Canadian Loan Cap



               minus




     (b) the Total Canadian Outstandings on such date.



     In calculating Canadian Availability at any time and for any purpose under this Agreement any
amount calculated or referenced in Dollars shall also refer to the Equivalent Amount in CD$.



     “Canadian Borrower” has the meaning specified in the introductory paragraph hereto.



     “Canadian Borrowing” means a Committed Canadian Borrowing or a Swing Line Borrowing
made to the Canadian Borrower, as the context may require.



     “Canadian Borrowing Base” means, at any time of calculation, an amount in CD$ (or the
Equivalent CD$ Amount, if applicable) equal to:



-8-









 






     (a) the face amount of Eligible Credit Card Receivables of the Canadian Loan Parties
multiplied by the Credit Card Advance Rate;




          plus




     (b) the face amount of Eligible Trade Receivables of the Canadian Loan Parties (net of
Receivables Reserves applicable thereto) multiplied by the Receivables Advance Rate;




          plus




     (c) the Cost of Eligible Inventory (other than Eligible In-Transit Inventory) of the
Canadian Loan Parties, net of Inventory Reserves applicable thereto, multiplied by
the Appraisal Percentage of the Appraised Value of Eligible Inventory (other than Eligible
In-Transit Inventory) of the Canadian Loan Parties;




          plus




     (d) the lesser of (i) $2,250,000 and (ii) the sum of (x) the Cost of Eligible
In-Transit Inventory of the Canadian Loan Parties, net of Inventory Reserves applicable
thereto, multiplied by the Appraisal Percentage of the Appraised Value of Eligible
In-Transit Inventory of the Canadian Loan Parties, and (y) with respect to any Eligible
Letter of Credit, the Appraisal Percentage of the Appraised Value of the Inventory of the
Canadian Loan Parties supported by such Eligible Letter of Credit, multiplied by the Cost of
such Inventory of the Canadian Loan Parties when completed, net of applicable Reserves;




          minus




     (e) the then amount of all Availability Reserves applicable to the Canadian Loan
Parties. In no event shall the amount of Availability Reserves subtracted in calculating
the Canadian Borrowing Base be duplicative of Availability Reserves subtracted in
calculating the Domestic Borrowing Base.



     “Canadian Commitment Fee” has the meaning provided in Section 2.09(a)(ii).



     “Canadian Commitments” means, as to each Canadian Lender, its obligation to (a) make
Committed Canadian Loans to the Canadian Borrower pursuant to Section 2.01(b), (b)
purchase participations in Canadian L/C Obligations, and (c) purchase participations in Swing Line
Loans made to the Canadian Borrower, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Canadian Lender’s name on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Canadian Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



     “Canadian Concentration Account” has the meaning provided in Section 6.13(c).



     “Canadian Credit Extensions” mean each of the following: (a) a Canadian Borrowing and
(b) a Canadian L/C Credit Extension.



     “Canadian Credit Party” or “Canadian Credit Parties” means (a) individually,
(i) each Canadian Lender and its Lender Affiliates, (ii) the Canadian Agent and its Lender
Affiliates, (iii) each L/C Issuer of any Canadian Letter of Credit and (iv) the successors and
assigns of each of the foregoing, and (b) collectively, all of the foregoing.



-9-









 





     “Canadian L/C Borrowing” means an extension of credit resulting from a drawing under
any Canadian Letter of Credit which has not been reimbursed on or prior to the date required to be
reimbursed by the Canadian Borrower pursuant to Section 2.03(c)(i) or refinanced as a
Committed Canadian Borrowing.



     “Canadian L/C Credit Extension” means, with respect to any Canadian Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the increase of the amount
thereof.



     “Canadian L/C Obligations” means, as at any date of determination and without
duplication, the aggregate Stated Amount of all outstanding Canadian Letters of Credit plus the
aggregate of all Unreimbursed Amounts under Canadian Letters of Credit, including all Canadian L/C
Borrowings.



     “Canadian Lenders” means the Lenders having Canadian Commitments from time to time or
at any time. Any Person may be a Canadian Lender only if it is a financial institution that is
listed on Schedule I, II or III of the Bank Act (Canada) or is not a foreign bank for purposes of
the Bank Act (Canada), and if such financial institution is not resident in Canada and is not
deemed to be resident in Canada for purposes of the Income Tax Act (Canada), then such financial
institution deals at arm’s length with each Canadian Loan Party for purposes of the Income Tax Act
(Canada).



     “Canadian Letter of Credit” means each Letter of Credit issued hereunder for the
account of the Canadian Borrower.



     “Canadian Letter of Credit Sublimit” means an amount equal to $10,000,000. The
Canadian Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Canadian
Commitments. A permanent reduction of the Aggregate Canadian Commitments shall not require a
corresponding pro rata reduction in the Canadian Letter of Credit Sublimit; provided,
however, that if the Aggregate Canadian Commitments are reduced to an amount less than the
Canadian Letter of Credit Sublimit, then the Canadian Letter of Credit Sublimit shall be reduced to
an amount equal to (or, at Canadian Borrower’s option, less than) the Aggregate Canadian
Commitments.



     “Canadian Liabilities” means (a) all advances to, and debts (including principal,
interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties
of, any Canadian Loan Party arising under any Loan Document or otherwise with respect to any
Canadian Loan or Canadian Letter of Credit (including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral therefor), whether
direct or indirect (including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest, fees, costs and expenses that
accrue after the commencement by or against any Canadian Loan Party or any Lender Affiliate thereof
of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding, and (b) any
Other Canadian Liabilities.



     “Canadian Loan” means an extension of credit by a Canadian Lender to the Canadian
Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.



     “Canadian Loan Cap” means, at any time of determination, the lesser of (a) the
Aggregate Canadian Commitments and (b) the Canadian Borrowing Base.



     “Canadian Loan Parties” means, collectively, the Canadian Borrower and each Canadian
Subsidiary that is a Guarantor of the Canadian Liabilities. “Canadian Loan Party” means any one of
such Persons.



-10-









 





     “Canadian Note” means a promissory note made by the Canadian Borrower in favor of a
Canadian Lender evidencing Canadian Loans made by such Canadian Lender, substantially in the form
of Exhibit C-1.



     “Canadian Overadvance” means a Canadian Credit Extension to the extent that,
immediately after the making of such Canadian Credit Extension, the aggregate principal balance of
all Canadian Credit Extensions then outstanding exceeds the Canadian Loan Cap as then in effect.



     “Canadian Pension Plan” means an employee pension benefit plan or pension plan that is
covered by the Laws of any jurisdiction in Canada including the Pension Benefits Act (Ontario) and
the Income Tax Act (Canada) or subject to minimum funding standards and that is either (a)
maintained or sponsored by any Canadian Loan Party or any Canadian Subsidiary for employees, (b)
maintained pursuant to a collective bargaining agreement, or other arrangement under which more
than one employer makes contributions and to which any Canadian Loan Party or any Canadian
Subsidiary is making or accruing an obligation to make contributions or has within the preceding
five years made or accrued such contributions or (c) any other plan with respect to which any
Canadian Loan Party has incurred or may incur liability, including contingent liability either to
such plan or to any Person, administration or Governmental Authority, including the FSCO.
“Canadian Pension Plan” shall not include the group registered retirement savings plan in
which the employees of any Canadian Loan Party or any Canadian Subsidiary participate and which is
not subject to any pension benefits standards legislation or the registered pension plan provisions
of the Income Tax Act (Canada).



     “Canadian Prime Rate” means, for any day, the greater of (i) the rate of interest
publicly announced from time to time by the Canadian Agent as its reference rate of interest for
loans made in CD$ and designated as its “prime” rate being a rate set by Canadian Agent based upon
various factors, including Canadian Agent’s costs and desired return, general economic conditions
and other factors and is used as a reference point for pricing some loans, provided that in the
event that the Canadian Agent (including any successor or assignor) does not at any time publicly
announce a prime rate, such rate shall be the “prime rate” publicly announced by a Schedule 1
chartered bank in Canada selected by the Canadian Agent, (ii) the Bank of Canada overnight rate,
which is the rate of interest charged by the Bank of Canada on one-day loans to financial
institutions, for such day, plus 0.50%, and (iii) the BA Equivalent Rate for a one month Interest
Period as determined on such day, plus 1.0%. Any change in the prime rate announced by the
Canadian Agent shall take effect at the opening of business on the day specified in the public
announcement of such change. Each interest rate based on the Canadian Prime Rate hereunder, shall
be adjusted simultaneously with any change in the Canadian Prime Rate.



     “Canadian Prime Rate Loan” means a Loan that bears interest based on the Canadian
Prime Rate.



     “Canadian Priority Payable Reserves” means, without duplication of any other Reserves
with respect to the Canadian Loan Parties, such reserves as any Co-Collateral Agent or the Canadian
Agent from time to time determines in its Permitted Discretion as being appropriate to reflect any
amounts secured by any Liens, choate or inchoate, which rank or are capable of ranking in priority
to, or pari passu with the Liens of the Administrative Agent or the Canadian Agent, as applicable,
and/or any amounts which may represent costs relating to the enforcement of the Liens of the
Administrative Agent or the Canadian Agent, as applicable, on the Collateral including, without
limitation, any such amounts due and owing by any Borrowing Base Party and not paid for wages
(including any amounts protected by the Wage Earner Protection Program Act (Ontario)), amounts due
and owing by any Borrowing Base Party and not paid for vacation pay, amounts due and owing by any
Borrowing Base Party and not paid under any legislation relating to workers’ compensation or to
employment insurance, all amounts deducted or withheld and not paid and remitted when due under the
Income Tax Act (Canada), amounts currently or past due and owing by any Borrowing Base Party and
not paid for realty, municipal or similar



-11-









 




Taxes (to the extent impacting personal or movable property) and all amounts currently or past
due and owing by any Borrower and not contributed, remitted or paid to any Plan or under the Canada
Pension Plan, the Pension Benefits Act (Ontario) or any similar legislation.




     “Canadian Security Documents” means each General Security Agreement, Deed of Hypothec
and each other security agreement or other instrument or document executed and delivered by any
Canadian Loan Party to the Canadian Agent pursuant to this Agreement or any other Loan Document
granting a Lien on assets of any Canadian Loan Party for the benefit of the Canadian Credit
Parties, as security for the Canadian Liabilities.



     “Canadian Subsidiary” means any Subsidiary that is organized under the laws of Canada
or any province or territory thereof.



     “Canadian Swing Line Note” means the promissory note of the Canadian Borrower
substantially in the form of Exhibit C-3, payable to the order of the applicable Swing Line
Lender, evidencing the Swing Line Loans made by the Swing Line Lender to the Canadian Borrower.



     “Canadian Swing Line Sublimit” means an amount equal to the lesser of (a) $1,500,000
and (b) the Aggregate Canadian Commitments. The Canadian Swing Line Sublimit is part of, and not
in addition to, the Aggregate Canadian Commitments.



     “Capital Expenditures” means, without duplication and with respect to any Person for
any period, all expenditures made (whether made in the form of cash or other property) or costs
incurred for the acquisition or improvement of fixed or capital assets of such Person (excluding
normal replacements and maintenance which are properly charged to current operations), in each case
that are (or should be) capitalized under GAAP, but excluding Capital Lease Obligations incurred by
a Person during such period. For purposes of this definition, the purchase price of Equipment that
is purchased substantially contemporaneously with the trade-in or sale of similar Equipment or with
insurance proceeds therefrom shall be included in Capital Expenditures only to the extent of the
gross amount by which such purchase price exceeds the credit granted to such Person for the
Equipment being traded in by the seller of such new Equipment, the proceeds of such sale or the
amount of the insurance proceeds, as the case may be.



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



     “Cash Collateral Account” means (i) in the case of the Domestic L/C Obligations, an
account established by one or more of the Domestic Loan Parties with the Administrative Agent, for
its own benefit and the benefit of the other Domestic Credit Parties, at Bank of America under the
sole and exclusive dominion and control of the Administrative Agent (subject to the rights of the
US Term Loan Agent, Term Loan Collateral Agent and the Euro Term Loan Agent as described in the
Intercreditor Agreement), in the name of the Administrative Agent or as the Administrative Agent
shall otherwise direct, in which deposits are required to be made by the Domestic Borrowers in
respect of the Domestic L/C Obligations in accordance with Section 2.03(g) or Section
8.02(c); and (ii) in the case of the Canadian L/C Obligations, an interest bearing account
established by any Canadian Loan Party with the Canadian Agent, for its own benefit and the benefit
of the other Canadian Credit Parties, at Bank of America-Canada Branch under the sole and exclusive
dominion and control of the Canadian Agent, in the name of the Canadian Agent or as the Canadian
Agent shall otherwise direct, in which deposits are



-12-









 




required to be made by the Canadian Borrower in respect of the Canadian L/C Obligations in
accordance with Section 2.03(g) or Section 8.02(c).




     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Dominion Event” means any of (i) the occurrence and continuance of any Event of
Default, (ii) the failure of the Borrowers to maintain Domestic Availability for three (3)
consecutive Business Days at least equal to the greater of (x) twenty percent (20%) of the Total
Loan Cap or (y) $30,000,000, or (iii) at any time after the Closing Date, the failure to either (a)
refinance the Pilot SAS Facility or (b) enter into a binding commitment reasonably satisfactory to
the Agents to refinance the Pilot SAS Facility (such refinancing to close by no later than the
maturity date thereof then in effect), in each case by no later than that date which is fifteen
(15) days prior to the maturity date of the Pilot SAS Facility then in effect. For purposes of
this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing (i) so long as
such Event of Default is continuing, (ii) if such Cash Dominion Event arises as a result of the
Borrowers’ failure to maintain Domestic Availability as required under clause (ii) of the
immediately preceding sentence, until Domestic Availability is at least equal to the greater of (x)
twenty percent (20%) of the Total Loan Cap or (y) $30,000,000 for sixty (60) consecutive calendar
days, and/or (iii) if such Cash Dominion Event has occurred due to events described in clause (iii)
of the immediately preceding sentence, until such time as the Pilot SAS Facility has been
refinanced, or a satisfactory binding commitment to refinance the Pilot SAS Facility (such
refinancing to close by no later than the maturity date thereof then in effect) has been entered
into; in which case a Cash Dominion Event shall no longer be deemed to be continuing for purposes
of this Agreement; provided that a Cash Dominion Event shall be deemed continuing (even if an Event
of Default is no longer continuing and/or Domestic Availability exceeds the required amount for
sixty (60) consecutive calendar days and/or the Pilot SAS Facility is refinanced or a binding
commitment therefor has been entered into) at all times after a Cash Dominion Event has occurred
and been discontinued on three (3) occasions after the Closing Date.



     “Cash Equivalent” means an Investment of any type specified in clauses (a) through (h)
in the definition below of the term “Permitted Investment”.



     “Cash Management Reserves “ means such reserves as the Administrative Agent, from time
to time, determines in its Permitted Discretion as being appropriate to reflect the reasonably
anticipated liabilities of the Loan Parties with respect to Cash Management Services then provided
or outstanding.



     “Cash Management Services” means any one or more of the following types or services or
facilities provided to any Loan Party by the Administrative Agent or any Lender or any of their
respective Lender 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 card processing
services, and (e) credit or debit cards.



     “CD$” or “Canadian Dollars” means lawful money of Canada.



     “CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. § 9601 et seq.



     “CFC” means (a) a Subsidiary that is a controlled foreign corporation under Section
957 of the Code, or (b) an entity treated as disregarded for United States federal income tax
purposes that owns more than 65% of the voting Equity Interests of a Subsidiary described in clause
(a) of this definition.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule,



-13-









 




regulation or treaty or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority, requiring compliance by any
Credit Party (or any lending office of such Credit Party or by such Credit Party’s holding company,
if any).




     “Change of Control” means an event or series of events by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding (i) any employee benefit plan of such person
or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan and (ii) Rhône Capital L.P. and its
Affiliates) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right,
an “option right”)), directly or indirectly, of 35% or more of the Equity Interests
of the Parent entitled to vote for members of the board of directors or equivalent governing
body of the Parent on a fully-diluted basis (and taking into account all such Equity
Interests that such “person” or “group” has the right to acquire pursuant to any option
right); or




     (b) during any period of twelve (12) consecutive months, a majority of the members of
the board of directors or other equivalent governing body of the Parent cease to be composed
of individuals (i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent governing body
or (iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on behalf of the board
of directors); or




     (c) any “change in control” as defined in any document governing Material Indebtedness
of any Loan Party; or




     (d) the Parent fails at any time to own, directly or indirectly, 100% of the Equity
Interests of each other Loan Party free and clear of all Liens (other than (i) the Liens in
favor of the Administrative Agent or the Canadian Agent under the Security Documents, (ii)
Liens securing obligations in respect of the U.S. Term Loan Credit Agreement and loan
documents relating thereto, and (iii) Liens securing obligations in respect of the Euro Term
Loan Credit Agreement and loan documents relating thereto), except where such failure is as
a result of a transaction permitted by the Loan Documents.



     “Closing Date” means July 31, 2009.



     “Co-Collateral Agents” means, collectively, Bank of America and GECC, acting in their
capacity as co-collateral agents, each for its own benefit and the benefit of the other Credit
Parties, or any successor collateral agent.



-14-









 





     “Code” means the Internal Revenue Code of 1986, and the regulations promulgated
thereunder, as amended and in effect.



     “Collateral” means any and all “Collateral” as defined in any applicable Security
Document and all other property of any Loan Party that is or is intended under the terms of the
Security Documents to be subject to Liens in favor of the Administrative Agent (for the benefit of
itself and the other Credit Parties) or the Canadian Agent (for the benefit of itself and the other
Canadian Credit Parties), as applicable.



     “Collateral Access Agreement” means an agreement substantially in the form attached
hereto as Exhibit I-1 (Collateral Access Agreement — Domestic Loan Parties) or Exhibit
I-2 (Collateral Access Agreement — Canadian Loan Parties) or otherwise reasonably satisfactory
in form and substance to the Agents (with respect to any location of the Domestic Loan Parties) or
the Canadian Agent or any Agent (with respect to any location of the Canadian Loan Parties),
executed by (a) a bailee or other Person in possession of Collateral, or (b) a landlord of Real
Estate leased by any Borrowing Base Party, in each case, pursuant to which such landlord, bailee or
other Person (i) acknowledges the Lien granted to the Administrative Agent or the Canadian Agent,
as applicable, on the Collateral, (ii) releases or subordinates such Person’s Liens in the
Collateral held by such Person or located on such Real Estate, (iii) provides the Administrative
Agent or the Canadian Agent, as applicable, with access to the Collateral held by such bailee or
other Person or located in or on such Real Estate, (iv) as to any landlord (x) provides the
Administrative Agent or the Canadian Agent, as applicable, with access to the Collateral located in
or on such Real Estate and a reasonable time to sell and dispose of the Collateral from such Real
Estate, and (y) agrees to give the Administrative Agent or the Canadian Agent, as applicable,
reasonable prior notice before terminating the lease covering such Real Estate and an opportunity
to cure any default of the applicable tenant if the Administrative Agent or the Canadian Agent, as
applicable, so elects.



     “Collateral Issues” has the meaning given such term in Section 9.18.



     “Commercial Letter of Credit” means any letter of credit or similar instrument
(including, without limitation, bankers’ acceptances) issued for the purpose of providing the
primary payment mechanism in connection with the purchase of any materials, goods or services by a
Loan Party in the ordinary course of business of such Loan Party.



     “Commitment” means, as to each Lender, its Domestic Commitment and its Canadian
Commitment.



     “Commitment Fee Adjustment Date” means the first day of each calendar quarter.



     “Commitment Increase” has the meaning provided in Section 2.15(a).



     “Committed Borrowing” means each Committed Canadian Borrowing and each Committed
Domestic Borrowing.



     “Committed Canadian Borrowing” means a borrowing consisting of simultaneous Committed
Canadian Loans of the same Type and, in the case of BA Equivalent Loans or LIBO Rate Loans, having
the same Interest Period made by each of the Canadian Lenders pursuant to Section 2.01.



     “Committed Canadian Loan” means any loan at any time made by any Canadian Lender
pursuant to Section 2.01.



-15-









 





     “Committed Domestic Borrowing” means a borrowing consisting of simultaneous Committed
Domestic Loans of the same Type and, in the case of LIBO Rate Loans, having the same Interest
Period made by each of the Domestic Lenders pursuant to Section 2.01.



     “Committed Domestic Loan” means any loan at any time made by any Domestic Lender
pursuant to Section 2.01.



     “Committed Loan” means any loan at any time made by any Lender (including, without
limitation, any Committed Domestic Loan and any Committed Canadian Loan) pursuant to Section
2.01.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of a Committed Loan from one Type to the other, or (c) a continuation of a LIBO Rate Loan or a BA
Equivalent Loan, pursuant to Section 2.02(b), which, if in writing, shall be substantially
in the form of Exhibit A-1 (Domestic Committed Loan Notice) or Exhibit A-2
(Canadian Committed Loan Notice), as applicable.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



     “Consent” means (a) actual written consent given by a Lender from whom such consent is
sought; or (b) the passage of ten (10) Business Days from receipt of written notice to a Lender
from the Administrative Agent of a proposed course of action to be followed by the Administrative
Agent without such Lender’s giving the Administrative Agent written notice that such Lender objects
to such course of action.



     “Consolidated” means, when used to modify a financial term, test, statement, or report
of a Person, the application or preparation of such term, test, statement or report (as applicable)
based upon the consolidation, in accordance with GAAP, of the financial condition or operating
results of such Person and its Subsidiaries.



     “Consolidated EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Parent and the Americas Subsidiaries on an Americas Consolidated
basis for the most recently completed Measurement Period, plus (a) the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the
provision for federal, state, local and foreign income Taxes, (iii) depreciation and amortization
expense, (iv) other non-recurring expenses reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period, (v) costs, fees and expenses in
connection with the Loan Documents, the Term Loan Documents and the other transactions occurring on
or about the Closing Date, (vi) costs, fees and expenses of business consultants, advisors and
other outside professionals incurred prior to July 31, 2009, not to exceed $2,000,000, (vii)
impairment charges and asset write-offs pursuant to GAAP and any non-cash stock compensation
expenses, and (viii) other non-cash restructuring, severance and integration charges reducing such
Consolidated Net Income (provided that if any such non-cash charge represents an accrual or reserve
for potential cash items in any future period, the cash payment in respect thereof in such future
period shall be subtracted from Consolidated EBITDA to such extent in such future period) (in each
case of or by the Parent and the Americas Subsidiaries for such Measurement Period), minus (b) the
following to the extent included in calculating such Consolidated Net Income: (i) federal, state,
local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net Income
(in each case of or by the Parent and the Americas Subsidiaries for such Measurement Period), all
as determined on an Americas Consolidated basis, in accordance with GAAP, as applicable.



     “Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the
ratio of (a) (i) Consolidated EBITDA for the most recently completed Measurement Period
minus (ii) Capital



-16-









 




Expenditures paid in cash during such Measurement Period minus (iii) the aggregate
amount of Federal, state, local, provincial, territorial, municipal and foreign income taxes paid
in cash during such Measurement Period (net of federal, state, local, provincial, territorial,
municipal and foreign income tax refunds received in cash during such Measurement Period) to (b)
the sum of (i) Debt Service Charges for such Measurement Period plus (ii) the aggregate
amount of all Restricted Payments paid in cash by the Parent during such Measurement Period, in
each case, of or by the Parent and the Americas Subsidiaries (other than clause (b)(ii) above), and
determined on an Americas Consolidated basis, in accordance with GAAP, as applicable.




     “Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses , in each case to the
extent treated as interest in accordance with GAAP, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance
financing and net costs under Swap Contracts, (b) all interest paid or payable with respect to
discontinued operations and (c) the portion of rent expense with respect to such period under
Capital Lease Obligations that is treated as interest, in accordance with GAAP in each case of or
by the Parent and the Americas Subsidiaries for the most recently completed Measurement Period, all
as determined on an Americas Consolidated basis.



     “Consolidated Net Income” means, as of any date of determination, the net income of
the Parent and the Americas Subsidiaries for the most recently completed Measurement Period, all as
determined on an Americas Consolidated basis, in accordance with GAAP, as applicable;
provided, however, that there shall be excluded (a) extraordinary gains and
extraordinary losses for such Measurement Period, (b) the income (or loss) of such Person during
such Measurement Period in which any other Person has a joint interest, except to the extent of the
amount of cash dividends or other distributions actually paid in cash to such Person during such
period, (c) the income (or loss) of such Person during such Measurement Period and accrued prior to
the date it becomes a Subsidiary of a Person or any of such Person’s Subsidiaries or is merged into
or consolidated with a Person or any of its Subsidiaries or that Person’s assets are acquired by
such Person or any of its Subsidiaries, and (d) the income of any direct or indirect Subsidiary of
a Person to the extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by operation of the terms of its
Organization Documents or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, except that the Parent’s equity in any net
loss of any such Americas Subsidiary for such Measurement Period shall be included in determining
Consolidated Net Income.



     “Contractual Obligation” means, as to any Person, any provision of any agreement,
instrument or other undertaking to which such Person is a party or by which it or any of its
property is bound.



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



     “Cost” means the lower of cost or market value of Inventory, based upon the Borrowers’
accounting practices, known to the Administrative Agent, which practices are in effect on the
Closing Date as such calculated cost is determined from invoices received by the Borrowing Base
Parties, the Borrowing Base Parties’ purchase journals or the Borrowing Base Parties’ stock ledger.
“Cost” does not include inventory capitalization costs or other non-purchase price charges (such
as freight) used in the Borrowing Base Parties’ calculation of cost of goods sold.



     “Covenant Compliance Event” means, as of any date, Domestic Availability at any time
is less than the greater of (x) fifteen percent (15%) of the Total Loan Cap or (y) $30,000,000.
For purposes



-17-









 




hereof, the occurrence of a Covenant Compliance Event shall be deemed continuing until
Domestic Availability is at least equal to the greater of (x) fifteen percent (15%) of the Total
Loan Cap or (y) $30,000,000 for sixty (60) consecutive calendar days, in which case a Covenant
Compliance Event shall no longer be deemed to be continuing for purposes of this Agreement.




     “Credit Card Advance Rate” means eighty-five percent (85%).



     “Credit Card Notifications” has the meaning provided in Section 6.13(a)(i).



     “Credit Card Receivables” means each Account, together with all income, payments and
proceeds thereof, owed by a major credit or debit card issuer (including, but not limited to, Visa,
MasterCard and American Express and such other issuers approved by the Agents (such approval not to
be unreasonably withheld)) to a Borrowing Base Party resulting from charges by a customer of a
Borrowing Base Party on credit or debit cards issued by such issuer in connection with the sale of
goods by a Borrowing Base Party, or services performed by a Borrower, in each case in the ordinary
course of its business.



     “Credit Extension” means each of (a) a Canadian Credit Extension and (b) a Domestic
Credit Extension.



     “Credit Party” or “Credit Parties” means (a) individually, (i) each Canadian
Credit Party, (ii) each Domestic Credit Party, (iii) the Arrangers, (iv) each beneficiary of each
indemnification obligation undertaken by any Loan Party under any Loan Document, (v) each Lender
Affiliate of any Domestic Lender or Canadian Lender or the Administrative Agent or Canadian Agent
providing Cash Management Services or Bank Products to a Loan Party, and (vi) the successors and
assigns of each of the foregoing, and (b) collectively, all of the foregoing.



     “Credit Party Expenses” means: (a) all reasonable and documented out-of-pocket
expenses incurred by any of the Agents, the Canadian Agent, the Arrangers and their respective
Lender Affiliates, in connection with this Agreement and the other Loan Documents, including,
without limitation (but in any event subject to the limitations described hereinbelow), (i) the
reasonable and documented fees, charges and disbursements of (A) counsel for any of the Agents, the
Canadian Agent, and the Arrangers (limited to not more than one primary counsel (except in the
case of counsel to GECC’s and GECM’s incurred in connection with the initial closing of the credit
facility provided under this Agreement, subject to the limitation described in the proviso below)
and necessary local counsel (limited to one local counsel per jurisdiction except in the case of
Canadian counsel to GECC incurred in connection with the initial closing of the credit facility
provided in this Agreement)), (B) outside consultants for any of the Agents and the Canadian Agent,
(C) appraisers, (D) commercial finance examinations, and (E) all such out-of-pocket expenses
incurred during any workout or restructuring negotiations in respect of the Obligations, and (ii)
all reasonable and documented out-of-pocket expenses incurred in connection with (A) the
syndication of the credit facility provided for herein, (B) the preparation, negotiation,
administration, management, execution and delivery of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (C) the enforcement or
protection of their rights in connection with this Agreement or the other Loan Documents or efforts
to preserve, protect, collect, or enforce the Collateral or in connection with any proceeding under
any Debtor Relief Laws, or (D) any workout or restructuring negotiations in respect of any
Obligations; provided that, notwithstanding anything to the contrary contained herein, the
aggregate amount included in the definition of Credit Party Expenses on account of fees, charges
and disbursements of counsel to GECC and GECM incurred in connection with the initial closing of
the credit facility provided under this Agreement shall be limited to $200,000 inclusive of the
fees, charges and disbursements of such Credit Parties’ Canadian counsel; and (b) with respect to
the L/C Issuer and its Lender Affiliates, all reasonable and documented out-of-pocket



-18-









 




expenses incurred in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder; and (c) all reasonable and documented
out-of-pocket expenses incurred by the Credit Parties who are not the Agents, the Canadian Agent,
the Arrangers, the L/C Issuer or any Lender Affiliate of any of them in connection with the
enforcement of the Credit Parties’ rights and remedies under any of the Loan Documents or
applicable Law including in the course of any work-out or restructuring of the Loans or other
Obligations during the pendency of any Event of Default, provided that such Credit Parties shall be
entitled to reimbursement for no more than one counsel representing all such Credit Parties (absent
a conflict of interest in which case the Credit Parties may engage and be reimbursed for additional
counsel).




     “Customer Credit Liabilities” means, at any time, the aggregate remaining value at
such time of (a) outstanding gift certificates and gift cards of the Borrowing Base Parties
entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or
a portion of the purchase price for any Inventory, and (b) outstanding merchandise credits and
customer deposits of the Borrowing Base Parties.



     “Customs Broker Agreement” means an agreement substantially in the form attached
hereto as Exhibit J-1 (with respect to any Domestic Borrower), Exhibit J-2 (with
respect to any Canadian Loan Party), or otherwise in form and substance reasonably satisfactory to
the Agents and (if a party thereto) the Canadian Agent, among a Borrowing Base Party, a customs
broker, NVOCC or carrier, and the Administrative Agent or the Canadian Agent, as applicable, in
which the customs broker, NVOCC or carrier acknowledges that it has control over and holds the
documents evidencing ownership of the subject Inventory or other property for the benefit of the
Administrative Agent or the Canadian Agent, as applicable, and agrees, upon notice from the
Administrative Agent or the Canadian Agent, as applicable, to hold and dispose of the subject
Inventory and other property solely as directed by the Administrative Agent or the Canadian Agent,
as applicable.



     “DDA” means any checking, savings or other deposit account maintained by any of the
Loan Parties. All funds in each DDA shall be conclusively presumed to be Collateral or the
proceeds of Collateral and the Credit Parties shall have no duty to inquire as to the source of the
amounts on deposit in any DDA.



     “Debt Service Charges” means, for any Measurement Period, the sum of (a) Consolidated
Interest Charges paid in cash or required to be paid in cash for such Measurement Period, plus (b)
the principal amount of all scheduled amortization payments made in cash or required to be made in
cash by the Parent or the Americas Subsidiaries on account of Indebtedness (excluding the
Obligations and any Synthetic Lease Obligations but including, without limitation, any Capital
Lease Obligations) during such Measurement Period, in each case determined on an Americas
Consolidated basis, in accordance with GAAP, as applicable.



     “Debtor Relief Laws” means each of (i) the Bankruptcy Code of the United States, (ii)
the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and
the Winding-up and Restructuring Act (Canada), and (iii) all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the United States, Canada or other
applicable jurisdictions from time to time in effect and affecting the rights of creditors
generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, or Canadian Liabilities, an interest rate equal to (i) the Prime Rate plus (ii) the
Applicable Margin, if any,



-19-









 




applicable to Domestic Prime Rate Loans, plus (iii) two percent (2%) per annum;
provided, however, that with respect to a LIBO Rate Loan, the Default Rate shall be
an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable
to such LIBO Rate Loan plus two percent (2%) per annum; (b) when used with respect to Canadian
Liabilities, an interest rate equal to (i) the Canadian Prime Rate plus (ii) the Applicable Margin,
if any, applicable to Canadian Prime Rate Loans, plus (iii) two percent (2%) per annum;
provided, however, that with respect to a (A) LIBO Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise
applicable to such LIBO Rate Loan plus two percent (2%) per annum, and (B) BA Equivalent Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin)
otherwise applicable to such BA Equivalent Loan plus two percent (2%) per annum; and (c) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus two percent (2%)
per annum.




     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required
to be funded by it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent, the Canadian Agent or
any other Lender any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent by
the Administrative Agent in good faith or become the subject of any proceeding under any Debtor
Relief Law.



     “Deteriorating Lender” means any Defaulting Lender or any Lender as to which (a) the
L/C Issuer or the Swing Line Lender believes in good faith 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 by the Administrative Agent in good faith or
become the subject of any proceeding under any Debtor Relief Law.



     “Dilution Percent” means, for any period, that percentage reasonably determined by the
Agents in their Permitted Discretion (with respect to the Domestic Borrowing Base) or the Canadian
Agent and the Agents in their Permitted Discretion (with respect to the Canadian Borrowing Base) by
dividing (a) the amount of charge-offs, returns of goods purchased from the Borrowing Base Parties
and any other non-cash reductions to trade receivables during such period which had, at the time of
sale, resulted in the creation of a trade receivable, by (b) the amount of sales (exclusive of
sales and other similar taxes) of the Borrowing Base Parties during such period.



     “Dilution Reserve” means a Reserve in amounts established by any Agent (with respect
to the Domestic Borrowing Base) or the Canadian Agent or any Agent (with respect to the Canadian
Borrowing Base) from time to time in its Permitted Discretion as being appropriate to reflect that
the Dilution Percent is or is reasonably anticipated to be greater than five percent (5%).



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) (whether in one transaction or in a
series of transactions) of any property (including, without limitation, any Equity Interests) by
any Person, including any sale, assignment, transfer or other disposal, with or without recourse,
of any notes or accounts receivable or any rights and claims associated therewith.



     “Disqualified Stock” means any Equity Interest that, by its terms (or by the terms of
any security into which it is convertible, or for which it is exchangeable, in each case at the
option of the holder thereof), or upon the happening of any event, matures or is mandatorily
redeemable (other than solely for Equity Interests that do not constitute Disqualified Stock),
pursuant to a sinking fund obligation or otherwise, or redeemable (other than solely for Equity
Interests that do not constitute Disqualified Stock)



-20-









 




at the option of the holder thereof, in whole or in part, on or prior to the date that is 91
days after the Maturity Date; provided, however, that (i) only the portion of such
Equity Interests which so matures or is so mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be
deemed to be Disqualified Stock and (ii) with respect to any Equity Interests issued to any
employee or to any plan for the benefit of employees of the Parent or its Subsidiaries or by any
such plan to such employees, such Equity Interest shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Parent or one of its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations or as a result of such employee’s
termination, resignation, death or disability and if any class of Equity Interest of such Person
that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of an
Equity Interest that is not Disqualified Stock, such Equity Interests shall not be deemed to be
Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interest that would
constitute Disqualified Stock solely because the holders thereof have the right to require a Loan
Party to repurchase such Equity Interest upon the occurrence of a change of control or an asset
sale shall not constitute Disqualified Stock. The amount of Disqualified Stock deemed to be
outstanding at any time for purposes of this Agreement will be the maximum amount that the any Loan
Party may become obligated to pay upon maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock or portion thereof, plus accrued dividends.




     “Dollars” and “$” mean lawful money of the United States.



     “Domestic Availability” means, as of any date of determination thereof, the result, if
a positive number, of:




     (a) the Domestic Loan Cap



               Minus




     (b) the Total Domestic Outstandings on such date.



     “Domestic Borrowers” has the meaning specified in the introductory paragraph hereto.



     “Domestic Borrowing” means a Committed Domestic Borrowing or a Swing Line Borrowing
made to the Domestic Borrowers, as the context may require.



     “Domestic Borrowing Base” means, at any time of calculation, an amount equal to:




     (a) the face amount of Eligible Credit Card Receivables of the Domestic Borrowers
multiplied by the Credit Card Advance Rate;




          plus




     (b) the face amount of Eligible Trade Receivables of the Domestic Borrowers (net of
Receivables Reserves applicable thereto) multiplied by the Receivables Advance Rate;




          plus




     (c) the Cost of Eligible Inventory (other than Eligible In-Transit Inventory) of the
Domestic Borrowers, net of Inventory Reserves applicable thereto, multiplied by the
Appraisal Percentage of the Appraised Value of Eligible Inventory (other than Eligible
In-Transit Inventory) of the Domestic Borrowers;



-21-









 






          plus




     (d) the lesser of (i) $27,750,000 and (ii) the sum of (x) the Cost of Eligible
In-Transit Inventory of the Domestic Borrowers, net of Inventory Reserves applicable
thereto, multiplied by the Appraisal Percentage of the Appraised Value of Eligible
In-Transit Inventory of the Domestic Borrowers, and (y) with respect to any Eligible Letter
of Credit, the Appraisal Percentage of the Appraised Value of the Inventory of the Domestic
Borrowers supported by such Eligible Letter of Credit, multiplied by the Cost of such
Inventory of the Domestic Borrowers when completed, net of applicable Reserves;




          minus




     (e) the then amount of all Availability Reserves applicable to the Domestic Borrowers.
In no event shall the amount of Availability Reserves subtracted in calculating the Domestic
Borrowing Base be duplicative of Availability Reserves subtracted in calculating the
Canadian Borrowing Base.



     “Domestic Commitment Fee” has the meaning provided in Section 2.09(a)(i).



     “Domestic Commitments” means, as to each Domestic Lender, its obligation to (a) make
Committed Domestic Loans to the Domestic Borrowers pursuant to Section 2.01, (b) purchase
participations in Domestic L/C Obligations, and (c) purchase participations in Swing Line Loans
made to the Domestic Borrowers, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Domestic Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Domestic Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



     “Domestic Concentration Account” has the meaning provided in Section 6.13(c).



     “Domestic Credit Extensions” mean each of the following: (a) a Domestic Borrowing and
(b) a Domestic L/C Credit Extension.



     “Domestic Credit Party” or “Domestic Credit Parties” means (a) individually,
(i) each Domestic Lender and its Lender Affiliates, (ii) the Agents and their respective Lender
Affiliates, (iii) each L/C Issuer of any Domestic Letter of Credit and (iv) the successors and
assigns of each of the foregoing, and (b) collectively, all of the foregoing.



     “Domestic L/C Borrowing” means an extension of credit resulting from a drawing under
any Domestic Letter of Credit which has not been reimbursed on or prior to the date required to be
reimbursed by the Domestic Borrowers pursuant to Section 2.03(c)(i) or refinanced as a
Committed Domestic Borrowing.



     “Domestic L/C Credit Extension” means, with respect to any Domestic Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the increase of the amount
thereof.



     “Domestic L/C Obligations” means, as at any date of determination and without
duplication, the aggregate Stated Amount of all outstanding Domestic Letters of Credit plus the
aggregate of all Unreimbursed Amounts under Domestic Letters of Credit, including all Domestic L/C
Borrowings.



     “Domestic Lenders” means the Lenders having Domestic Commitments from time to time or
at any time.



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     “Domestic Letter of Credit” means each Letter of Credit issued hereunder for the
account of the Domestic Borrowers.



     “Domestic Letter of Credit Sublimit” means an amount equal to $92,500,000. The
Domestic Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Domestic
Commitments. A permanent reduction of the Aggregate Domestic Commitments shall not require a
corresponding pro rata reduction in the Domestic Letter of Credit Sublimit; provided, however, that
if the Aggregate Domestic Commitments are reduced to an amount less than the Domestic Letter of
Credit Sublimit, then the Domestic Letter of Credit Sublimit shall be reduced to an amount equal to
(or, at Lead Borrower’s option, less than) the Aggregate Domestic Commitments.



     “Domestic Loan” means an extension of credit by a Domestic Lender to the Domestic
Borrowers under Article II in the form of a Committed Loan or a Swing Line Loan.



     “Domestic Loan Cap” means, at any time of determination, the lesser of (a)
the Aggregate Domestic Commitments or (b) the Domestic Borrowing Base.



     “Domestic Loan Parties” means, collectively, the Parent, the Domestic Borrowers and
each Domestic Subsidiary that is a Guarantor of the Obligations. “Domestic Loan Party” means any
one of such Persons.



     “Domestic Note” means a promissory note made by the Domestic Borrowers in favor of a
Domestic Lender evidencing Domestic Loans made by such Domestic Lender, substantially in the form
of Exhibit C-2.



     “Domestic Overadvance” means a Domestic Credit Extension to the extent that,
immediately after the making of such Domestic Credit Extension, the aggregate principal balance of
all Domestic Credit Extensions then outstanding exceeds the Domestic Loan Cap as then in effect.



     “Domestic Pension Plan” means any “employee pension benefit plan” (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of
ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan
Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at
any time during the immediately preceding five plan years.



     “Domestic Prime Rate Loan” means a Loan that bears interest based on the Prime Rate.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Domestic Swing Line Note” means the promissory note of the Domestic Borrowers
substantially in the form of Exhibit C-4, payable to the order of the applicable Swing Line
Lender, evidencing the Swing Line Loans made by such Swing Line Lender to the Domestic Borrowers.



     “Domestic Swing Line Sublimit” means an amount equal to the lesser of (a) $20,00,000
and (b) the Aggregate Domestic Commitments. The Domestic Swing Line Sublimit is part of, and not
in addition to, the Aggregate Domestic Commitments.



     “Eligible Assignee” means (a) a Lender or any of its Lender Affiliates; (b) a bank,
insurance company, or company engaged in the business of making commercial loans, which Person,
together with




-23-











 




its Lender Affiliates, has a combined capital and surplus in excess of $250,000,000; (c) an
Approved Fund; (d) any Person to whom a Lender assigns its rights and obligations under this
Agreement as part of an assignment and transfer of such Lender’s rights in and to a material
portion of such Lender’s portfolio of asset based credit facilities, and (e) any other Person
(other than a natural person) approved by (i) the Administrative Agent, the L/C Issuer and the
Swing Line Lender, and (ii) unless an Event of Default has occurred and is continuing, the Lead
Borrower (each such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Parent or any of its
Subsidiaries or other Affiliates, or the US Term Loan Agent or the Euro Term Loan Agent, or any of
their respective Lender Affiliates or Subsidiaries except in connection with the exercise of the
purchase right, as set forth in Section 5.4 of the Intercreditor Agreement.




     “Eligible Credit Card Receivables” means, at the time of any determination thereof,
each Credit Card Receivable that satisfies the following criteria at the time of creation and
continues to meet the same at the time of such determination: such Credit Card Receivable (i) has
been earned by performance and represents the bona fide amounts due to a Borrowing Base Party from
a credit card payment processor and/or credit card issuer, and in each case originated in the
ordinary course of business of such Borrowing Base Party, and (ii) in each case is acceptable to
the Agents (with respect to Credit Card Receivables of a Domestic Borrower) or the Canadian Agent
and the Agents (with respect to Credit Card Receivables of the Canadian Loan Parties), as
applicable, in their Permitted Discretion, and is not ineligible for inclusion in the calculation
of the Canadian Borrowing Base or the Domestic Borrowing Base, as applicable, pursuant to any of
clauses (a) through (k) below. Without limiting the foregoing, to qualify as an Eligible Credit
Card Receivable, an Account shall indicate no Person other than a Borrowing Base Party as payee or
remittance party. In determining the amount to be so included, the face amount of an Account shall
be reduced by, without duplication of any Reserve or any of clauses (a) through (k) below or
otherwise, to the extent not reflected in such face amount, (i) the amount of all accrued and
actual discounts, claims, credits or credits pending, promotional program allowances, price
adjustments, finance charges or other allowances (including any amount that a Borrowing Base Party
may be obligated to rebate to a customer, a credit card payment processor, or credit card issuer
pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate
amount of all cash received in respect of such Account but not yet applied by the applicable
Borrowing Base Party to reduce the amount of such Credit Card Receivable. Any Credit Card
Receivable meeting the foregoing criteria shall be deemed to be an Eligible Credit Card Receivable
but only as long as such Credit Card Receivable is not included within any of the following
categories, in which case such Credit Card Receivable shall not constitute an Eligible Credit Card
Receivable, unless otherwise agreed by the Agents and (if applicable) the Canadian Agent:




     (a) Credit Card Receivables which do not constitute an “Account” (as defined in the
UCC or the PPSA, as applicable);




     (b) Credit Card Receivables that have been outstanding for more than five (5) Business
Days from the date of sale;




     (c) Credit Card Receivables with respect to which a Borrowing Base Party does not have
good and valid title, free and clear of any Lien (other than Liens granted to the
Administrative Agent or the Canadian Agent, as applicable, pursuant to the Security
Documents and other Permitted Encumbrances not having priority over, or that are pari passu
with, the Lien of the Administrative Agent or the Canadian Agent under applicable Law);




     (d) Credit Card Receivables that are not subject to a first priority Lien in favor of
the Administrative Agent or the Canadian Agent, as applicable, pursuant to the Security
Documents (other than Permitted Encumbrances not having priority over, or that are pari
passu with, the Lien of the Administrative Agent or the Canadian Agent under applicable Law)
(it being the intent that



-24-









 






chargebacks in the ordinary course by such processors shall not be deemed violative of
this clause);




     (e) Credit Card Receivables which are disputed, are with recourse, or with respect to
which a claim, counterclaim, offset or chargeback has been asserted (but only to the extent
of such disputed amount, claim, counterclaim, offset or chargeback);




     (f) Credit Card Receivables as to which the processor has the right under certain
circumstances to require a Borrowing Base Party to repurchase the Accounts from such credit
card processor;




     (g) Credit Card Receivables due from an issuer or payment processor of the applicable
credit card which is the subject of any proceeding under any Debtor Relief Law;




     (h) Credit Card Receivables which are not a valid, legally enforceable obligation of
the applicable issuer with respect thereto;




     (i) Credit Card Receivables which do not conform in all material respects to all
representations, warranties or other provisions in the Loan Documents relating to Credit
Card Receivables or which are not payable in Dollars (with respect to Credit Card
Receivables of a Domestic Borrower) or in Dollars or CD$ (with respect to Credit Card
Receivables of a Canadian Loan Party);




     (j) Credit Card Receivables which are evidenced by chattel paper or an instrument of
any kind unless such chattel paper or instrument is in the possession of the Administrative
Agent or the Canadian Agent, and to the extent necessary or appropriate, endorsed to the
Administrative Agent or the Canadian Agent, as applicable; or




     (k) Credit Card Receivables which any Agent or, if applicable, the Canadian Agent,
determines in its Permitted Discretion to be uncertain of collection.




     Subject to Section 9.18, the Agents shall have the right to establish or
modify or eliminate Reserves against Eligible Credit Card Receivables from time to time in
their Permitted Discretion.



     “Eligible In-Transit Inventory” means, as of any date of determination thereof,
without duplication of other Eligible Inventory, In-Transit Inventory:




     (a) Which satisfies all of the requirements for Eligible Inventory other than the
requirement that it be located in the United States (with respect to In-Transit Inventory of
a Domestic Borrower) or Canada (with respect to In-Transit Inventory of a Canadian Loan
Party);




     (b) Which has been fully paid for by the applicable Borrowing Base Party, or,
alternatively, for which the full purchase price thereof is secured by a Commercial Letter
of Credit issued under this Agreement;




     (c) For which title to such In-Transit Inventory has passed to such Borrowing Base
Party;




     (d) For which the purchase order is in the name of such Borrowing Base Party;



-25-









 






     (e) Which is scheduled for delivery within thirty (30) days or less from the date of
shipment;




     (f) For which an Acceptable BOL has been issued and in each case as to which the
Administrative Agent or the Canadian Agent, as applicable, has possession of the Acceptable
BOL which evidences ownership of the subject In-Transit Inventory (which possession
requirement can be satisfied by the delivery of a Customs Broker Agreement from any third
party with possession over such Acceptable BOL);




     (g) Which is in the possession of a common carrier or Eligible NVOCC which issued the
Acceptable BOL in respect of such In-Transit Inventory;




     (h) The common carrier (to the extent an NVOCC has not engaged such common carrier),
NVOCC and customs broker (as applicable) with respect to such In-Transit Inventory has
entered into a Customs Broker Agreement which is then in effect; and




     (i) Which is fully insured by marine cargo and other insurance in accordance with
Section 5.10.




     Subject to Section 9.18, the Agents shall have the right to establish or
modify or eliminate Reserves against Eligible In-Transit Inventory from time to time in
their Permitted Discretion.



     “Eligible Inventory” means, as of the date of determination thereof, without
duplication, (i) Eligible In-Transit Inventory, and (ii) items of Inventory of a Borrowing Base
Party (other than Eligible In-Transit Inventory) that are raw materials or finished goods,
merchantable and readily saleable to the public in the ordinary course deemed by the Agents (with
respect to Inventory of a Domestic Borrower) or the Canadian Agent and the Agents (with respect to
Inventory of a Canadian Loan Party), as applicable, in their Permitted Discretion, to be eligible
for inclusion in the calculation of the Canadian Borrowing Base or the Domestic Borrowing Base, as
applicable (including blank t-shirts which otherwise satisfy the requirements set forth in this
definition), in each case that, except as otherwise agreed by the Agents and, if applicable, the
Canadian Agent, complies in all material respects with each of the representations and warranties
respecting Inventory made by a Borrowing Base Party in the Loan Documents, and that is not excluded
as ineligible by virtue of one or more of the criteria set forth below. Except as otherwise agreed
by the Agents and, if applicable, the Canadian Agent, the following items of Inventory shall not be
included in Eligible Inventory:




     (a) Inventory that is not solely owned by a Borrowing Base Party or a Borrowing Base
Party does not have good and valid title thereto;




     (b) Inventory that is leased by or is on consignment to a Borrowing Base Party or that
is consigned by a Borrowing Base Party to a Person which is not a Loan Party;




     (c) Inventory (other than Eligible In Transit Inventory) that (i) is not located in the
United States in the case of Inventory of a Domestic Borrower (excluding territories or
possessions thereof) or Canada in the case of Inventory of a Canadian Loan Party (excluding
territories or possessions thereof), (ii) is in transit, (iii) is located at a location that
is not owned or leased by a Borrowing Base Party, except to the extent that a Collateral
Access Agreement executed by the Person owning any such location is delivered to the
Administrative Agent or the Canadian Agent, as applicable, or (iv) is in the possession of
any Person who is a processor;



-26-









 






     (d) Inventory that is located in a distribution center leased by a Borrowing Base Party
unless the applicable lessor has delivered to the Administrative Agent, if requested by any
Agent or (if applicable) the Canadian Agent, a Collateral Access Agreement;




     (e) Inventory that is comprised of goods which (i) are damaged, defective, “seconds,”
or otherwise unmerchantable, (ii) are to be returned to the vendor, (iii) are obsolete or
slow moving, or custom items, work-in-process, raw materials (but excluding blank t-shirts),
or that constitute spare parts, display, promotional, marketing, packaging and shipping
materials or supplies used or consumed in a Borrowing Base Party’s business, (iv) are
seasonal in nature and which have been packed away for sale in a subsequent season, (v) are
not in compliance with all standards imposed by any Governmental Authority having regulatory
authority over such Inventory, its use or sale, (vi) are bill and hold goods, or (vii) are
of a type which is not held for sale by the Borrowing Base Parties in the ordinary course of
their business;




     (f) Inventory that is not subject to a perfected first-priority security interest in
favor of the Administrative Agent or the Canadian Agent, as applicable, pursuant to the
Security Documents (other than Permitted Encumbrances not having priority over, or that are
pari passu with, the Lien of the Administrative Agent or the Canadian Agent under applicable
Law, or having priority but acceptable to the Co-Collateral Agents and, if applicable, the
Canadian Agent in their Permitted Discretion);




     (g) Inventory that consists of samples, labels, bags, and other similar non-merchandise
categories;




     (h) Inventory that is not insured in compliance with the provisions of Section
5.10 hereof;




     (i) Inventory that has been sold but not yet delivered or as to which a Borrowing Base
Party has accepted a deposit;




     (j) Inventory that is subject to any licensing, patent, royalty, trademark, trade name
or copyright agreement with any third party which any Borrowing Base Party or any of their
Subsidiaries has received notice of a dispute in respect of any such agreement or which
would require the payment of fees or royalties to or the consent of the licensor under such
agreement for any sale or other disposition of such Inventory by the Administrative Agent or
the Canadian Agent, unless the Agents and, if applicable, the Canadian Agent, have reviewed
the underlying agreements and determined the terms to be acceptable, and subject to the
imposition of a Reserve for the payment of any such fees or royalties; or




     (k) Inventory acquired in a Permitted Acquisition or series of related Permitted
Acquisitions if the aggregate fair market value of the Inventory of the Borrowing Base
Parties acquired in connection with such Permitted Acquisition or series of related
Permitted Acquisitions exceeds $5,000,000, unless and until the Co-Collateral Agents, and,
if applicable, the Canadian Agent have (i) completed or received an appraisal of such
Inventory from appraisers reasonably satisfactory to the Co-Collateral Agents, and, if
applicable, the Canadian Agent, and such other due diligence as the Co-Collateral Agents,
and, if applicable, the Canadian Agent may reasonably require, all of the results of the
foregoing to be reasonably satisfactory to the Co-Collateral Agents, and, if applicable, the
Canadian Agent, and (ii) established an Inventory advance rate and Inventory Reserves (if
applicable) therefor, and (iii) otherwise agreed that such Inventory shall be deemed
Eligible Inventory in their Permitted Discretion.



-27-









 






     Subject to Section 9.18, the Agents and, if applicable, the Canadian Agent
shall have the right to establish or modify or eliminate Reserves against Eligible Inventory
from time to time in their Permitted Discretion.



     “Eligible Letter of Credit” means, as of any date of determination thereof, a
Commercial Letter of Credit which supports the full purchase price of Inventory (other than
In-Transit Inventory), (a) which Inventory does not constitute Eligible In-Transit Inventory and
for which no Acceptable BOL or other documents of title have then been issued; (b) which Commercial
Letter of Credit (i) has an expiry within thirty (30) days of the date of determination, and (ii)
provides that such Commercial Letter of Credit may be drawn only after the Inventory is completed
and after an Acceptable BOL has been issued for such Inventory; and (c) with respect to the
Inventory to be purchased with such Commercial Letter of Credit, such Inventory satisfies all of
the requirements for Eligible In-Transit Inventory other than the requirement set forth in clause
(e) of the definition of the term herein.



     “Eligible NVOCC” means, with respect to any In-Transit Inventory, an NVOCC for such
In-Transit Inventory that (i) is not an Affiliate of a Borrowing Base Party or the applicable
foreign vendor and is otherwise acceptable to the Agents and, with respect to In-Transit Inventory
of a Canadian Loan Party, the Canadian Agent; (ii) is engaged by a Domestic Borrower or a Canadian
Loan Party as freight forwarder with respect to such In-Transit Inventory; (iii) has received from
the carrier a tangible bill of lading with respect to such In-Transit Inventory that names such
NVOCC as consignee; (iv) has issued an Acceptable BOL to the order of a Borrowing Base Party in
respect of such In-Transit Inventory; and (v) has entered into a Customs Broker Agreement which is
then in effect.



     “Eligible Trade Receivables” means Accounts arising from the sale of a Borrowing Base
Party’s Inventory (other than those consisting of Credit Card Receivables) that satisfy the
following criteria at the time of creation and continue to meet the same at the time of such
determination: such Account (i) has been earned by performance and represents the bona fide amounts
due to a Borrowing Base Party from an account debtor, and in each case originated in the ordinary
course of business of such Borrowing Base Party, and (ii) in each case is acceptable to the Agents
(with respect to Accounts of a Domestic Borrower) or the Canadian Agent and the Agents (with
respect to Accounts of a Canadian Loan Party), as applicable, in their Permitted Discretion, and is
not ineligible for inclusion in the calculation of the Canadian Borrowing Base or the Domestic
Borrowing Base, as applicable, pursuant to any of clauses (a) through (v) below. Without limiting
the foregoing, to qualify as an Eligible Trade Receivable, an Account shall indicate no Person
other than a Borrowing Base Party as payee or remittance party. In determining the amount to be so
included, the face amount of an Account shall be reduced by, without duplication, to the extent not
reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits
or credits pending, promotional program allowances, price adjustments, finance charges or other
allowances (including any amount that a Borrowing Base Party may be obligated to rebate to a
customer pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the
aggregate amount of all cash received in respect of such Account but not yet applied by the
applicable Borrowing Base Party to reduce the amount of such Eligible Trade Receivable. Any
Account meeting the foregoing criteria shall be deemed to be an Eligible Trade Receivable but only
as long as such Account is not included within any of the following categories, in which case such
Account shall not constitute an Eligible Trade Receivable, unless otherwise agreed by the Agents
and (if applicable) the Canadian Agent:




     (a) Accounts that are not evidenced by an invoice;




     (b) Accounts (i) that have been outstanding for more than ninety (90) days from the
original invoice date (or, with respect to Accounts having an aggregate face amount of not
more than $5,000,000, one hundred twenty (120) days from the original invoice date) or (ii)
that are more than sixty (60) days past the due date;



-28-









 






     (c) Accounts due from any account debtor if fifty percent (50%) or more of Accounts due
from account debtor are ineligible under the provisions of clause (b) above;




     (d) Accounts with respect to which a Borrowing Base Party does not have good and valid
title thereto, free and clear of any Lien (other than Liens granted to the Administrative
Agent pursuant to the Security Documents and other Permitted Encumbrances not having
priority over, or that are pari passu with, the Lien of the Administrative Agent or the
Canadian Agent under applicable Law);




     (e) Accounts that are not subject to a first priority security interest in favor of the
Administrative Agent or the Canadian Agent, as applicable, pursuant to the Security
Documents (other than Permitted Encumbrances not having priority over, or that are pari
passu with, the Lien of the Administrative Agent or the Canadian Agent under applicable
Law);




     (f) Accounts which are disputed or with respect to which a claim, counterclaim, offset
or chargeback has been asserted, but only to the extent of such dispute, counterclaim,
offset or chargeback;




     (g) Accounts which arise out of any sale made not in the ordinary course of business,
made on a basis other than upon credit terms usual to the business of a Borrowing Base
Party;




     (h) Accounts which are owed by any account debtor whose principal place of business is
not within the United States (with respect to Inventory of a Domestic Borrower) or Canada
(with respect to Inventory of a Canadian Loan Party);




     (i) Accounts which are owed by any Affiliate or any employee of a Loan Party;




     (j) Accounts for which all consents, approvals or authorizations of, or registrations
or declarations with any Governmental Authority required to be obtained, effected or given
in connection with the performance of such Account by the account debtor or in connection
with the enforcement of such Account by the Agents have not been duly obtained, effected or
given and are not in full force and effect;




     (k) Accounts due from an account debtor which is the subject of any bankruptcy or
insolvency proceeding, has had a trustee or receiver appointed for all or a substantial part
of its property, has made an assignment for the benefit of creditors or has suspended its
business;




     (l) Accounts due from (i) the federal government of the United States of America unless
such Accounts have been assigned by the applicable Borrowing Base Party to the
Administrative Agent in accordance with the Federal Assignment of Claims Act of 1940 or (ii)
the federal government of Canada or a political subdivision thereof, or any province or
territory, or any municipality or department or agency or instrumentality thereof unless the
provisions of the Financial Administration Act (Canada) or any applicable provincial,
territorial or municipal law of similar purpose and effect restricting the assignment
thereof, as the case may be, have been complied with, or any other Governmental Authority
except to the extent reasonably acceptable to the Co-Collateral Agents and, if applicable,
the Canadian Agent; and in any event such Accounts described in this subsection shall not
exceed $6,000,000 at any time outstanding;




     (m) Accounts (i) owing from any Person that is also a supplier to or creditor of a Loan
Party or any of its Subsidiaries unless such Person has waived any right of setoff in a
manner reasonably acceptable to the Agents and, if applicable, the Canadian Agent, or (ii)



-29-









 






representing any manufacturer’s or supplier’s credits, discounts, incentive plans or
similar arrangements entitling a Loan Party or any of its Subsidiaries to discounts on
future purchase therefrom;




     (n) Accounts arising out of sales on a bill-and-hold, guaranteed sale, sale-or-return,
sale on approval or consignment basis or subject to any right of return;




     (o) Accounts arising out of sales to account debtors outside the United States (with
respect to Accounts of a Domestic Borrower) or Canada (with respect to Accounts of a
Canadian Loan Party), unless such Accounts are fully backed by an irrevocable letter of
credit on terms, and issued by a financial institution, reasonably acceptable to the Agents
and, if applicable, the Canadian Agent;




     (p) Accounts payable other than in Dollars (with respect to Accounts of a Domestic
Borrower) or in Dollars or CD$ (with respect to Accounts of a Canadian Loan Party);




     (q) Accounts evidenced by a judgment, chattel paper, promissory note or other
instrument;




     (r) Accounts consisting of amounts due from vendors as rebates or allowances, or as
finance or interest charges;




     (s) Accounts which are in excess of the credit limit for such account debtor
established by a Borrowing Base Party in the ordinary course of business and consistent with
past practices;




     (t) Accounts which include extended payment terms (datings) beyond those generally
furnished to other account debtors in the ordinary course of business;




     (u) Accounts due from an account debtor and its Affiliates, where the aggregate amount
due on such Accounts to the Borrowing Base Parties at any time exceeds fifteen percent (15%)
of the total Eligible Trade Receivables then due to the Borrowing Base Parties, only to the
extent of such amount in excess of fifteen percent (15%) of the total Eligible Trade
Receivables due to the Borrowing Base Parties; or




     (v) Accounts which any Agent and, if applicable, the Canadian Agent, determines in its
Permitted Discretion to be unacceptable for borrowing.




     Subject to Section 9.18, the Agents and, if applicable, the Canadian Agent,
shall have the right to establish or modify or eliminate Reserves against Eligible Trade
Receivables from time to time in their Permitted Discretion.



     “Environmental Laws” means any and all federal, state, provincial, territorial,
municipal, local, and foreign statutes, laws, regulations, ordinances, final and enforceable rules,
judgments, orders, decrees or governmental restrictions governing pollution and the protection of
the environment or the release of any materials into the environment, including those governing
Hazardous Materials, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, obligation, damage, loss, claim,
action, suit, judgment, order, fine, penalty, fee, expense, or cost (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities), of any Borrower, any
other Loan Party or any



-30-









 




of their respective Subsidiaries resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement imposing liability under Environmental Law or for
Hazardous Materials.




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



     “Equipment” shall mean “equipment”, as defined in the UCC or in the PPSA, and shall
also mean all furniture, store fixtures, motor vehicles, rolling stock, machinery, office
equipment, plant equipment, tools, dies, molds, and other goods, property, and assets which are
used and/or were purchased for use in the operation or furtherance of a Loan Party’s business, and
any and all accessions or additions thereto, and substitutions therefor.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, and all of the warrants or
options for the purchase or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person.



     “Equivalent Amount” means, on any date, the rate at which Canadian Dollars may be
exchanged into Dollars, determined by reference to the Bank of Canada noon rate as published on the
Reuters Screen BOFC on the immediately preceding Business Day. In the event that such rate does
not appear on such Reuters page, “Equivalent Amount” shall mean, on any date, the amount of Dollars
into which an amount of Canadian Dollars may be converted or the amount of Canadian Dollars into
which an amount of Dollars may be converted, in either case, at, in the case of the Canadian
Borrower, the Canadian Agent’s spot buying rate in Toronto as at approximately 12:00 noon (Toronto
time) on such date and, in the case of a Domestic Borrower, the Administrative Agent’s spot buying
rate in New York as at approximately 12:00 noon (New York City time) on the immediately preceding
Business Day.



     “Equivalent CD$ Amount” means, on any day with respect to any amount of Dollars, the
amount of Canadian Dollars which would be required to buy such amount of Dollars using the spot
rate of the Bank of Canada at approximately 12:00 noon (Toronto time) on the day or, if such day is
not a Business Day, on the Business Day immediately preceding such day.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with a Loan Party within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under



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Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon a Loan Party or any ERISA Affiliate.




     “Euro Term Loan Agent” means Rhône Group L.L.C., in its capacity as agent for the
lenders under the Euro Term Loan Credit Agreement, together with any successor agent (including
pursuant to any Permitted Amendment/Refinancing of the Euro Term Loan Credit Agreement).



     “Euro Term Loan Credit Agreement” means that certain Credit Agreement dated as of the
Closing Date among the Parent, Mountain & Wave S.à r.l., the lenders party thereto and the Euro
Term Loan Agent (including any Permitted Amendment/Refinancing thereof).



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to any Agent, the Canadian Agent, any Lender, the
L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of
any Loan Party hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or in which it is otherwise treated as doing business, in the
case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction in which any Loan
Party is located, (c) in the case of a Foreign Lender (other than a Canadian Lender or an assignee
pursuant to a request by the Lead Borrower under Section 10.13) or L/C Issuer, any
withholding tax that is imposed on amounts payable to such Foreign Lender or L/C Issuer at the time
such Foreign Lender or L/C Issuer becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender’s or L/C Issuer’s failure or inability (other
than as a result of a Change in Law after such Foreign Lender or L/C Issuer becomes a party hereto)
to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Loan Parties with respect to such withholding tax pursuant
to Section 3.01(a), and (d) in the case of a Canadian Lender (other than an assignee
pursuant to a request by the Canadian Borrower under Section 10.13), any withholding tax
that is imposed on amounts payable to such Canadian Lender at the time such Canadian Lender becomes
a party to this Agreement (or designates a new Lending Office) or is attributable to such Canadian
Lender’s failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Canadian Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Canadian Borrower with respect to such withholding tax pursuant to
Section 3.01(a). For the avoidance of doubt, any Participant that is entitled to the
benefits of Section 3.01(a) shall be treated as a Lender for purposes of this defined
term.



     “Executive Order” has the meaning set forth in Section 10.18.



     “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement
dated as of June 3, 2005, among, inter alia, the Lead Borrower, the Parent, the several banks and
other financial institutions party thereto, Bank of America, N.A., as documentation agent, Union
Bank of California, N.A., as syndication agent, and JPMorgan Chase Bank, N.A., as administrative
agent, as amended.



     “Existing Increasing Lender” shall have the meaning provided in Section
2.15(c).



     “Facility Guaranty” means (a) a Guarantee of the Obligations made by a Guarantor which
is a Domestic Loan Party in favor of the Administrative Agent and the other Credit Parties, in
substantially the form attached hereto as Exhibit K-1 or otherwise in form reasonably
satisfactory to the Agents, and



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(b) a Guarantee of the Canadian Liabilities made by a Guarantor which is a Canadian Loan Party
in favor of the Canadian Agent and the other Canadian Credit Parties, in substantially the form
attached hereto as Exhibit K-2 or otherwise in form reasonably satisfactory to the Canadian
Agent and the Agents.




     “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 Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letter” means the letter agreement, dated May 21, 2009, among the Lead Borrower,
the Parent, the Administrative Agent, Bank of America, GECC and the Arrangers.



     “Fiscal Month” means any fiscal month of any Fiscal Year, which month shall generally
end on the last day of each calendar month in accordance with the fiscal accounting calendar of the
Loan Parties.



     “Fiscal Quarter” means any fiscal quarter of any Fiscal Year, which quarters shall
generally end on the last day of each April, July, October and January of such Fiscal Year in
accordance with the fiscal accounting calendar of the Loan Parties.



     “Fiscal Year” means any period of twelve (12) consecutive months ending on October
31st of any calendar year.



     “Foreign Assets Control Regulations” has the meaning set forth in Section
10.18.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Lead Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “Foreign Subsidiary” means each Subsidiary other than a Domestic Subsidiary.



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



     “French Credit Agreement” means the Facilities Agreement dated as of July 31, 2009
among, inter alia, Pilot SAS and Na Pali, a Société par Actions Simplifiée, as borrowers, the
Parent and Pilot SAS, as original guarantors, and Crédit Lyonnais, BNP Paribas and Société Générale
Corporate & Investment Banking, as mandated lead arrangers, and any Permitted Amendment/Refinancing
thereof.



     “FSCO” means the Financial Services Commission of Ontario and any Person succeeding to
the functions thereof and includes the Superintendent under such statute and any other Governmental
Authority empowered or created by the Supplemental Pension Plans Act (Quebec) or the Pension
Benefits Act (Ontario) or any Governmental Authority of any other Canadian jurisdiction exercising
similar functions in respect of any Canadian Pension Plan of any Canadian Loan Party and any
Governmental Authority succeeding to the functions thereof.



     “Fronting Fee” has the meaning specified in Section 2.03(j).



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     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied; provided that, with respect to Foreign Subsidiaries
of Parent organized under the laws of Canada, or any province or territory thereof, unless GAAP is
being applied, “GAAP” shall mean principles which are consistent with those promulgated or adopted
by the Canadian Institute of Chartered Accountants and its predecessors (or successors) in effect
and applicable to the accounting period in respect of which reference to GAAP is being made.



     “GECC” means General Electric Capital Corporation, a Delaware corporation, and its
successors.



     “GECM” means GE Capital Markets, Inc. and its successors.



     “General Security Agreements” means each General Security Agreement dated as of the
Closing Date among the respective Canadian Loan Parties and the Canadian Agent for the benefit of
the Canadian Credit Parties.



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



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the
term “Guarantee” shall not include endorsements of checks, drafts and other items for the payment
of money for collection or deposit, in either case in the ordinary course of business. The amount
of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if
not stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



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     “Guarantor” means (a) with respect to the Obligations (including, without limitation,
the Canadian Liabilities), the Parent and each other direct Domestic Subsidiary of any Domestic
Loan Party that shall be required to execute and deliver a Facility Guaranty or Facility Guaranty
supplement pursuant to Section 6.12(a) and (b) with respect to the Canadian Liabilities,
QS Retail Canada Corp., an unlimited company organized under the laws of the Province of Nova
Scotia, and each other direct Canadian Subsidiary of any Canadian Loan Party that shall be required
to execute and deliver a Facility Guaranty or Facility Guaranty supplement pursuant to Section
6.12(b).



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



     “Honor Date” has the meaning specified in Section 2.03(c)(i).



     “Immaterial Subsidiary” means each Subsidiary of any Loan Party which has assets with
a fair market value of less than $100,000, and no income or operations. Schedule 5.13
specifically identifies those Immaterial Subsidiaries in existence as of the Closing Date.



     “Increase Effective Date” has the meaning provided therefor in Section
2.15(d).



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) the maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business not past due
for more than sixty (60) days after the date on which such trade account payables were
created);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) all Attributable Indebtedness of such Person;




     (g) all obligations of such Person in respect of Disqualified Stock; and




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is



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expressly made non-recourse to such Person and except to the extent such Person’s liability
for such Indebtedness is otherwise limited under applicable Law or otherwise. The amount of any
net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitee” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Intellectual Property” means all: trade secrets, know-how and other proprietary
information; trademarks, trademark applications, internet domain names, service marks, trade dress,
trade names, designs, logos, slogans, indicia of origin and other source identifiers, and all
registrations or applications for registrations which have heretofore been or may hereafter be
issued thereon throughout the world; copyrights and copyright applications (including copyrights
for computer programs), unpatented inventions (whether or not patentable); patents and patent
applications; industrial design applications and registered industrial designs; any Loan Party’s
rights in any license agreements related to any of the foregoing and income therefrom; intellectual
property rights in books, records, writings, computer tapes or disks, flow diagrams, specification
sheets, computer software, source codes, object codes, executable code, data and databases; all
other intellectual property; and all common law and other rights throughout the world in and to all
of the foregoing.



     “Intellectual Property Security Agreement” means the Intellectual Property Security
Agreement dated as of the Closing Date among the Domestic Loan Parties and the Administrative
Agent.



     “Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the
Closing Date, between the Administrative Agent, the US Term Loan Agent, the Term Loan Collateral
Agent and the Euro Term Loan Agent.



     “Interest Payment Date” means, (a) as to any LIBO Rate Loan or BA Equivalent Loan, the
last day of each Interest Period applicable to such LIBO Rate Loan or BA Equivalent Loan and the
Maturity Date; provided, however, that if any Interest Period for a LIBO Rate Loan
or BA Equivalent Loan exceeds three months, the date that falls every three months after the
beginning of such Interest Period shall also be an Interest Payment Date; and (b) as to any Prime
Rate Loan (including a Swing Line Loan), the last Business Day of each calendar quarter and the
Maturity Date.



     “Interest Period” means, as to each LIBO Rate Loan or BA Equivalent Loan, the period
commencing on the date such Committed Borrowing is disbursed, converted into or continued as such
Type of Committed Borrowing and ending on the date one, two, three or six months thereafter, as
selected by the Lead Borrower or the Canadian Borrower, as applicable, in its Committed Loan
Notice; provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;



-36-









 






     (iii) no Interest Period shall extend beyond the Maturity Date; and




     (iv) notwithstanding the provisions of clause (iii) no Interest Period shall have a
duration of less than one (1) month, and if any Interest Period applicable to a LIBO
Borrowing or a BA Equivalent Loan, as applicable, would be for a shorter period, such
Interest Period shall not be available hereunder.


For purposes hereof, the date of a Committed Borrowing initially shall be the date on which such
Committed Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Committed Borrowing.




     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Parent’s and/or its Subsidiaries’
internal controls over financial reporting, in each case as described in the Securities Laws.



     “In-Transit Inventory” means Inventory of a Borrowing Base Party that is in the
possession of a common carrier and is in transit from a foreign location to either (a) with respect
to Inventory of a Domestic Borrower, a location of such Domestic Borrower (or a location designated
by such Domestic Borrower) that is in the United States or (b) with respect to Inventory of a
Canadian Loan Party, a location of such Canadian Loan Party (or a location designated by such
Canadian Loan Party) that is in Canada.



     “Inventory” means all “inventory” as defined in the UCC or the PPSA, as applicable,
and shall also include, without limitation, all: (a) goods which (i) are leased by a Person as
lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service,
(iii) are furnished by a Person under a contract of service, or (iv) consist of raw materials, work
in process, or materials used or consumed in a business; (b) goods of said description in transit;
(c) goods of said description which are returned, repossessed or rejected; and (d) packaging,
advertising, and shipping materials related to any of the foregoing.



     “Inventory Reserves” means, without duplication of any other Reserves or items that
are otherwise addressed or excluded through eligibility criteria, such reserves as may be
established from time to time by any Agent and, with respect to the Canadian Borrowing Base, the
Canadian Agent and any Agent, as applicable, in its Permitted Discretion with respect to the
determination of the saleability, at retail or wholesale, of the Eligible Inventory or which
reflect such other factors as affect the market value of the Eligible Inventory. Without limiting
the generality of the foregoing, Inventory Reserves may, in the Permitted Discretion of any Agent
and, with respect to the Canadian Borrowing Base, the Canadian Agent and any Agent, as applicable,
include (but are not limited to) reserves based on:




     (a) obsolescence;




     (b) seasonality;




     (c) Shrink;




     (d) imbalance;




     (e) change in Inventory character;




     (f) change in Inventory composition;



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     (g) change in Inventory mix;




     (h) mark-downs (both permanent and point of sale);




     (i) retail mark-ons and mark-ups inconsistent with prior period practice and
performance, industry standards, current business plans or advertising calendar and planned
advertising events;




     (j) out-of-date and/or expired Inventory; and




     (k) seller’s reclamation or repossession rights under any Debtor Relief Laws.




     Upon the determination by any Agent or, if applicable, the Canadian Agent, in its
Permitted Discretion, that an Inventory Reserve should be established or modified, such
Agent or the Canadian Agent, as applicable, shall notify the Administrative Agent and, if
applicable, the Canadian Agent, in writing and the Administrative Agent or the Canadian
Agent, as applicable, shall thereupon establish or modify such Inventory Reserve, subject to
the provisions of Section 9.18 of this Agreement.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or Equity Interest in, another Person, or (c)
any Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or decreases in the value of
such Investment.



     “IP Collateral” has the meaning assigned to such term in the Intellectual Property
Security Agreement.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means, with respect to any Letter of Credit, the Letter Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
any Borrower (or any Subsidiary) or in favor the L/C Issuer and relating to any such Letter of
Credit.



     “Joinder Agreement” means an agreement, in the form attached hereto as Exhibit
F-1 (Joinder Agreement — Domestic Loan Parties) or Exhibit F-2 (Joinder Agreement -
Canadian Loan Parties) (or such other form as is reasonably satisfactory to the Agents) pursuant to
which, among other things, a Person becomes a party to, and bound by the terms of, this Agreement
and/or the other Loan Documents in the same capacity and to the same extent as either a Borrower or
a Guarantor, as applicable.



     “Landlord Lien State” means (a) Pennsylvania, Virginia, Washington and such other
state(s) determined by the Agents in their Permitted Discretion in which a landlord’s claim for
rent may have priority over the Liens of the Administrative Agent in any of the Eligible Inventory
of the Domestic Borrowers, under the Security Documents and (b) Ontario, Nova Scotia, Alberta,
Manitoba and British Columbia and such other province(s) determined by the Agents and, if
applicable, the Canadian Agent in their Permitted Discretion in which a landlord’s claim for rent
may have priority over the Liens of the



-38-









 




Canadian Agent in any of the Eligible Inventory of the Canadian Loan Parties under the
Security Documents.




     “Laws” means each international, foreign, federal, state, provincial, territorial,
municipal and local statute, treaty, rule, guideline, regulation, ordinance, code and
administrative or judicial precedent or authority, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement, interpretation or
administration thereof, and each applicable administrative order, directed duty, license,
authorization and permit of, and agreement with, any Governmental Authority, in each case whether
or not having the force of law.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on or prior to the date required to be reimbursed by the
Borrowers pursuant to Section 2.03(c)(i) or refinanced as a Committed Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means (a) as to Domestic Letters of Credit, (i) Bank of America in its
capacity as issuer of Domestic Letters of Credit hereunder, or any successor issuer of Domestic
Letters of Credit hereunder (which successor may only be a Domestic Lender selected by the
Administrative Agent in its discretion and reasonably acceptable to the Lead Borrower), or (ii) any
other Domestic Lender (or its Lender Affiliates) requested by the Lead Borrower and approved by the
Administrative Agent in its reasonable discretion; and (b) as to Canadian Letters of Credit, (i)
Bank of America-Canada Branch in its capacity as issuer of Canadian Letters of Credit hereunder, or
any successor issuer of Canadian Letters of Credit hereunder (which successor may only be a
Canadian Lender selected by the Canadian Agent in its discretion and reasonably acceptable to the
Canadian Borrower), or (ii) any other Canadian Lender (or its Lender Affiliates) requested by the
Canadian Borrower and approved by the Canadian Agent in its reasonable discretion. The L/C Issuer
may, in its discretion, arrange for one or more Letters of Credit to be issued by Lender Affiliates
of the L/C Issuer, in which case the term “L/C Issuer” shall include any such Lender Affiliate with
respect to Letters of Credit issued by such Lender Affiliate.



     “L/C Obligations” means, collectively, the Canadian L/C Obligations and the Domestic
L/C Obligations. For purposes of computing the amounts available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.



     “Lead Borrower” has the meaning specified in the introductory paragraph hereto.



     “Lease” means any written agreement pursuant to which a Loan Party is entitled to the
use or occupancy of any real property for any period of time.



     “Lender” means each Domestic Lender and each Canadian Lender and, as the context
requires, includes the Swing Line Lender.



-39-









 





     “Lender Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Lead Borrower and the Administrative Agent.



     “Letter of Credit” means each Standby Letter of Credit and each Commercial Letter of
Credit issued hereunder.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “LIBO Borrowing” means a Committed Borrowing comprised of LIBO Rate Loans.



     “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 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, provided
that there shall be a two percent (2%) floor on the LIBO Rate for LIBO Rate Loans with a one (1) or
two (2) month Interest Period, and provided further that LIBO Rate Loans may be requested by the
Lead Borrower or the Canadian Borrower at the three (3) month LIBO Rate for one (1) or two (2)
month Interest Periods. 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 Bank of America and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.



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



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or preferential arrangement in the nature of a security interest of any
kind or nature whatsoever (including any conditional sale, Capital Lease Obligation, Synthetic
Lease Obligation, or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing relating to such asset) and, with respect to the Canadian
Loan Parties, also includes any deemed trust or prior claim in, on or of such asset and (b) in the
case of securities, any purchase option, call or similar right of a third party with respect to
such securities.



-40-









 





     “Liquidation” means the exercise by the Administrative Agent, the Co-Collateral Agents
or the Canadian Agent, as applicable, of those rights and remedies accorded to such Persons under
the Loan Documents and applicable Law as a creditor of the Loan Parties with respect to the
realization on the Collateral, including (after the occurrence and during the continuation of an
Event of Default) the conduct by the Loan Parties acting with the consent of the Agents, of any
public, private or “going-out-of-business”, “store closing” or other similar sale or any other
disposition of the Collateral for the purpose of liquidating the Collateral as well as the
collection or other disposition of any of the Collateral. Derivations of the word “Liquidation”
(such as “Liquidate”) are used with like meaning in this Agreement.



     “Loan” means a Domestic Loan and a Canadian Loan.



     “Loan Account” has the meaning assigned to such term in Section 2.11(a).



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letter, all Borrowing Base Certificates, the Security Documents, each Facility Guaranty,
Post-Closing Letter and any other instrument or agreement now or hereafter executed and delivered
by any Loan Party in connection herewith.



     “Loan Parties” means, collectively, the Domestic Loan Parties and the Canadian Loan
Parties. “Loan Party” means any one of such Persons.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
condition (financial or otherwise) of the Parent and the Americas Subsidiaries taken as a whole;
(b) a material impairment of the ability of any Loan Party to perform its obligations under any
Loan Document to which it is a party; or (c) a material impairment of the rights and remedies of
the Administrative Agent, the Canadian Agent or the Lenders under the Loan Documents or a material
adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party
of the Loan Documents to which it is a party. In determining whether any individual event would
result in a Material Adverse Effect for the purposes of determining compliance with any
representation, warranty, covenant or event of default under this Agreement, notwithstanding that
such event in and of itself does not have such effect, a Material Adverse Effect shall be deemed to
have occurred if the cumulative effect of such event and all other then existing events subject to
such representation, warranty, covenant or event of default would result in a Material Adverse
Effect.



     “Material Contract” means, with respect to any Person, each contract to which such
Person is a party, the breach or termination of which would (or would be reasonably likely to)
result in a Material Adverse Effect. Without limitation of the foregoing, the US Term Loan Credit
Agreement and the Senior Note Indenture (for so long as each such agreement is in effect), shall
each be deemed a Material Contract.



     “Material Indebtedness” means Indebtedness (other than the Obligations) of the Loan
Parties in an aggregate principal amount exceeding $15,000,000 (including, for purposes of
calculating such amount, undrawn committed or available amounts and amounts owing to all creditors
under any combined or syndicated credit arrangement). Without limitation of the foregoing, the
Indebtedness under the US Term Loan Credit Agreement and the Indebtedness under the Senior Note
Indenture (for so long as each such agreement is in effect) shall be deemed Material Indebtedness.
For purposes of determining the amount of Material Indebtedness at any time, the amount of the
obligations in respect of any Swap Contract at such time shall be calculated at the Swap
Termination Value thereof.



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     “Maturity Date” means July 31, 2012.



     “Maximum Rate” has the meaning provided in Section 10.09.



     “Measurement Period” means, at any date of determination, (x) at any time prior to the
end of the first Fiscal Month which occurs after the first full eighteen (18) months following the
Closing Date, the most recently completed four Fiscal Quarters of the Parent for which financial
statements have been (or were required to be) delivered pursuant to Section 6.01, and (y)
at any time thereafter, the twelve (12) Fiscal Months most recently ended for which financial
statements are available.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which a Loan Party or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Proceeds” means:




     (a) with respect to any Disposition by any Loan Party described in clause (b), (h) or
(p) of the definition of “Permitted Disposition”, the excess, if any, of (i) the sum of cash
and cash equivalents received by any Loan Party in connection with such transaction
(including any cash or cash equivalents received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so received) over
(ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness that is secured by the applicable asset by a Lien permitted
hereunder on such asset and that is required to be repaid (or to establish an escrow for the
future repayment thereof) in connection with such transaction (other than Indebtedness under
the Loan Documents), (B) the reasonable and customary out-of-pocket expenses incurred by
such Loan Party in connection with such transaction (including, without limitation,
appraisals, and brokerage, legal, title and recording or transfer tax expenses and
commissions) paid by any Loan Party to third parties (other than another Loan Party or an
Affiliate of any Loan Party), and (C) taxes paid in connection therewith; and




     (b) with respect to the incurrence or issuance of any Indebtedness by any Loan Party,
the excess of (i) the sum of the cash and cash equivalents received by any Loan Party in
connection with such transaction over (ii) the underwriting discounts and commissions, and
other reasonable and customary out-of-pocket expenses, incurred by such Loan Party in
connection therewith to third parties (other than another Loan Party or an Affiliate of any
Loan Party).



     “Non-Consenting Lender” has the meaning provided therefor in Section 10.01.



     “Non-Extension Notice Date” has the meaning specified in Section
2.03(b)(iii).



     “Note” means either a Domestic Note or a Canadian Note, as the context may require.



     “NPL” means the National Priorities List under CERCLA.



     “NVOCC” means with respect to any In-Transit Inventory, a non-vessel operating common
carrier engaged as a freight forwarder or otherwise to assist in the importation of In-Transit
Inventory.



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     “Obligations” means (a) all advances to, and debts (including principal, interest,
fees, costs, and expenses), liabilities, obligations, covenants and indemnities of, any Loan Party
arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit
(including payments in respect of reimbursement of disbursements, interest thereon and obligations
to provide cash collateral therefor), whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest, fees, costs and expenses that accrue after the commencement by or against any
Loan Party or any Subsidiary thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding, and (b) any Other Liabilities. Without limiting the foregoing, for
purposes of clarity, whenever used herein the term “Obligations” shall include all Canadian
Liabilities.



     “Operating Cash” means, without duplication, (a) cash maintained in the cash registers
in the Stores in the normal course of business and consistent with past practices, (b) minimum
balances maintained in DDAs consistent with past practices, and (c) minimum balances maintained in
Blocked Accounts consistent with past practices, provided that Operating Cash described in
the foregoing clauses (b) and (c) shall not exceed $500,000 in the aggregate at any time.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction); (c) with respect to
any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity, (d) with
respect to any unlimited liability company, the memorandum of association and articles of
association (or equivalent or comparable constitutive documents with respect to any non-U.S.
jurisdiction); and (e) in each case, all shareholder or other equity holder agreements, voting
trusts and similar arrangements to which such Person is a party or which is applicable to its
Equity Interests.



     “Other Canadian Liabilities” means any obligation on account of: (a) any Cash
Management Services furnished to any of the Canadian Loan Parties or any of their Canadian
Subsidiaries and/or (b) any transaction which arises out of any Bank Product entered into with any
Canadian Loan Party.



     “Other Domestic Liabilities” means any obligation on account of: (a) any Cash
Management Services furnished to any of the Domestic Loan Parties or any of their Domestic
Subsidiaries and/or (b) any transaction which arises out of any Bank Product entered into with any
Domestic Loan Party.



     “Other Liabilities” means, collectively, all Other Canadian Liabilities and all Other
Domestic Liabilities.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means: (i) with respect to Committed Loans and Swing Line Loans
on any date, the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may
be, occurring on




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such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and
any other changes in the aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements by any Borrower of Unreimbursed Amounts, or the refinancing of such
unreimbursed amounts as Committed Borrowings.




     “Overadvance” means either a Canadian Overadvance or a Domestic Overadvance.



     “Parent” has the meaning specified in the introductory paragraph hereto.



     “Participant” has the meaning specified in Section 10.06(d).



     “Patriot Act” means USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)).



     “Payment Conditions” means, at the time of determination with respect to any specified
transaction or payment, that (a) no Default or Event of Default then exists or would arise as a
result of entering into such transaction or the making such payment, and (b) the Availability
Condition has been satisfied, and (c) the Consolidated Fixed Charge Coverage Ratio, calculated for
the Measurement Period most recently ended for which financial statements have been (or were
required to be) delivered pursuant to Section 6.01 is (x) with respect to any Restricted
Payment, equal to or greater than 1.25:1.0 and (y) with respect to any Investments or Acquisitions
or any voluntary prepayments, repurchases, redemptions or defeasances of Permitted Indebtedness
(other than Subordinated Indebtedness), equal to or greater than 1.1:1.0, in each case, immediately
preceding, and on a pro forma basis on the date thereof and projected basis for the twelve (12)
months (or four (4) Fiscal Quarters) immediately following, such transaction or payment. Prior to
undertaking any transaction or payment which is subject to the Payment Conditions, the Lead
Borrower shall deliver to the Administrative Agent evidence of satisfaction of the conditions
contained in clause (b) in the preceding sentence on a basis (including, without limitation, giving
due consideration to results for prior periods) reasonably satisfactory to the Agents.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan Party or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Acquisition” means an Acquisition by any Loan Party or any Subsidiary
thereof in which all of the following conditions are satisfied:




     (a) No Default exists at the time of or immediately after giving effect to the
consummation of such Acquisition;




     (b) Such Acquisition shall have been approved by the Board of Directors of the Person
(or similar governing body if such Person is not a corporation) which is the subject of such
Acquisition and such Person shall not have announced that it will oppose such Acquisition



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or shall not have commenced any action which alleges that such Acquisition shall
violate applicable Law;




     (c) In the case of a Permitted Acquisition, or a series of related Permitted
Acquisitions, involving consideration in the aggregate in excess of $10,000,000, the Lead
Borrower shall have furnished the Administrative Agent with at least thirty (30) days’ (or
such shorter period as the Administrative Agent shall agree) prior written notice of such
intended Acquisition and shall have furnished the Administrative Agent with a current draft
of the documents, instruments and agreements contemplated to be executed in connection with
such Acquisition (and final copies thereof as and when executed), a summary of any due
diligence undertaken by the Loan Parties in connection with such Acquisition, appropriate
financial statements of the Person which is the subject of such Acquisition, pro forma
projected financial statements for the twelve (12) month period following such Acquisition
after giving effect to such Acquisition (including balance sheets, cash flows and income
statements by month for the acquired Person, individually, and on an Americas Consolidated
basis), and such other information as the Administrative Agent may reasonably require, all
of which shall be reasonably satisfactory to the Administrative Agent in its Permitted
Discretion;




     (d) In the case of a Permitted Acquisition, or a series of related Permitted
Acquisitions, involving consideration in the aggregate in excess of $10,000,000, either (i)
the legal structure of such Acquisition shall be reasonably acceptable to the Administrative
Agent in its Permitted Discretion, or (ii) the Loan Parties shall have provided the
Administrative Agent with a solvency opinion from an unaffiliated third party valuation firm
reasonably satisfactory to the Administrative Agent in its Permitted Discretion;




     (e) After giving effect to such Acquisition, if such Acquisition is an Acquisition of
the Equity Interests, a Loan Party shall acquire and own, directly or indirectly, a majority
of the Equity Interests in the Person being acquired and shall Control a majority of any
voting interests or shall otherwise Control the governance of the Person being acquired;




     (f) Any assets acquired shall be utilized in, and if such Acquisition involves a
merger, amalgamation, consolidation or stock acquisition, the Person which is the subject of
such Acquisition shall be engaged in, a business otherwise permitted to be engaged in by a
Borrowing Base Party under this Agreement;




     (g) Intentionally Omitted;




     (h) The business and assets acquired in such Acquisition shall be free and clear of all
Liens (other than Permitted Encumbrances);




     (i) No Indebtedness shall be incurred or assumed by any Loan Party in connection with
or as a result of such Acquisition (other than Permitted Indebtedness); and




     (j) The Loan Parties shall have satisfied the Payment Conditions with respect to such
Acquisition.



     “Permitted Amendment/Refinancing” means, in respect of any Indebtedness, any
amendments, restatements, refinancings, refundings, renewals, extensions or replacements of such
Indebtedness; provided that (i) the principal amount of such Indebtedness is not increased at the
time of such amendment, restatement, refinancing, refunding, renewal, extension or replacement
except by an amount equal to any premium or other amount paid, interest then due, and fees and
expenses incurred, in



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connection with such amendment, restatement, refinancing, refunding, renewal, extension or
replacement and by an amount equal to any existing commitments unutilized thereunder, (ii) the
result of such amendment, restatement, refinancing, refunding, renewal, extension or replacement
shall not be an earlier maturity date or decreased weighted average life of such Indebtedness, and
(iii) the terms relating to collateral (if any) and subordination (if any), financial covenants,
mandatory prepayments, events of default, and interest, fees and other amounts payable, of any such
amended, restated, refinanced, refunded, renewed, extended or replacement Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith, are no less favorable
in any material respect to the Loan Parties or the Lenders than the terms of the agreements and
instruments governing the Indebtedness being so amended, restated, refinanced, refunded, renewed,
extended or replaced, provided that (A) the interest rates in effect on the Term Loans may be
increased by a spread of no more than four percent (4%) in the aggregate above the rates in effect
as of the Closing Date, of which no more than two percent (2%) shall be cash pay, and the balance
shall be capitalized and paid at or after the initial maturity of the Term Loans and (B) the
foregoing shall not prevent any payment in the form of equity securities (not constituting
Indebtedness) in consideration of any such amendment, restatement, refinancing, refunding, renewal,
extension or replacement.




     “Permitted Canadian Overadvance” means a Canadian Overadvance made by the Canadian
Agent, in its Permitted Discretion, which:




     (a) is made to maintain, protect or preserve the Collateral of the Canadian Loan
Parties and/or the Canadian Credit Parties’ rights under the Loan Documents or which is
otherwise for the benefit of the Credit Parties; or




     (b) is made to enhance the likelihood of, or maximize the amount of, repayment of any
of the Canadian Liabilities; or




     (c) is made to pay any other amount chargeable to any Canadian Loan Party hereunder or
under any other Loan Document; and




     (d) together with all other Permitted Canadian Overadvances then outstanding, shall not
(i) exceed at any time the lesser of $1,000,000 or ten percent (10%) of the Canadian
Borrowing Base at any time or (ii) unless a Liquidation is occurring, remain outstanding for
more than thirty (30) consecutive Business Days, unless in each case, the Required Lenders
otherwise agree;



     provided, that the foregoing shall not (i) modify or abrogate any of the provisions of
Section 2.03 regarding each Canadian Lender’s obligations with respect to Canadian Letters
of Credit, or (ii) result in any claim or liability against the Canadian Agent (regardless of the
amount of any Canadian Overadvance) for “inadvertent Canadian Overadvances” (i.e. where a Canadian
Overadvance results from changed circumstances beyond the control of the Canadian Agent (such as a
reduction in the value of Collateral)), and such “inadvertent Canadian Overadvances” shall not
reduce the amount of Permitted Canadian Overadvances allowed hereunder, and provided
further, that in no event shall the Canadian Agent make a Canadian Overadvance, if after giving
effect thereto, the principal amount of the Canadian Credit Extensions would exceed the Aggregate
Canadian Commitments (as in effect prior to any termination of the Canadian Commitments pursuant to
Section 2.06 hereof).



     “Permitted Discretion” means a determination made in good faith and in the exercise of
commercially reasonable business judgment.



     “Permitted Disposition” means each of the following:



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     (a) Dispositions of Inventory in the ordinary course of business;




     (b) bulk sales or other Dispositions of the Inventory of a Loan Party in connection
with Store closings, at arm’s length, provided, that such Store closures and related
Inventory Dispositions shall not exceed (i) in any period of twelve (12) consecutive months,
thirty-five (35) Stores (net of new Store openings) and (ii) in the aggregate from and after
the Closing Date, seventy-five (75) Stores (net of new Store openings), provided
that at any time after the Disposition of an aggregate of twenty-five (25) or more
Stores, in addition to the number of appraisals that may be conducted in accordance with
Section 6.10, upon the request of either Co-Collateral Agent, an additional
inventory appraisal may be required to be performed at the expense of the Loan Parties;
provided, further that, if reasonably required by either of the Co-Collateral Agents
or the Canadian Agent, all sales of Inventory in connection with Store closings shall be in
accordance with liquidation agreements and with professional liquidators reasonably
acceptable to the Agents; provided, further that an amount equal to the Net Proceeds
received in connection therewith is applied to the prepayment of Loans if and to the extent
then required in accordance with Section 2.05(f) hereof;




     (c) licenses of Intellectual Property of a Loan Party or any of its Subsidiaries in the
ordinary course of business;




     (d) licenses for the conduct of licensed departments within the Loan Parties’ Stores in
the ordinary course of business; provided that, if requested by the Agents, the applicable
Loan Party shall have used commercially reasonable efforts to cause the Person operating
such licensed department to enter into an intercreditor agreement with the Administrative
Agent or Canadian Agent, as applicable, on terms and conditions reasonably satisfactory to
the Agents;




     (e) Dispositions of Equipment and other assets (including abandonment of or other
failures to maintain, preserve, renew, protect or keep in full force and effect Intellectual
Property) in the ordinary course of business that is substantially worn, damaged, obsolete
or, in the judgment of a Loan Party, no longer useful or necessary in its business or that
of any Americas Subsidiary;




     (f) Dispositions among the Loan Parties or by any Subsidiary to a Loan Party;




     (g) Dispositions by any Subsidiary which is not a Loan Party to another Subsidiary that
is not a Loan Party;




     (h) Dispositions of Real Estate of any Loan Party or any Americas Subsidiary (or
Dispositions of any Person or Persons created to hold such Real Estate or the equity
interests in such Person or Persons), including sale-leaseback transactions involving any
such Real Estate pursuant to leases on market terms, as long as, (i) such Disposition is
made for fair market value, and (ii) an amount equal to the Net Proceeds of such Disposition
received by any Loan Party is applied to the prepayment of Loans in the manner required by
Section 2.05(f);




     (i) Dispositions consisting of the compromise, settlement or collection of Accounts
receivable in the ordinary course of business, consistent with past practices;




     (j) leases, subleases, space leases, licenses or sublicenses of Real Estate (and
terminations of any of the foregoing), in each case in the ordinary course of business and
which do not materially interfere with the business of the Parent and its Subsidiaries,
taken as a whole;



-47-









 






     (k) Dispositions of cash, cash equivalents and Permitted Investments described in
clauses (a) through (h) of the definition of “Permitted Investments” contained in this
Agreement, in each case on ordinary business terms and, to the extent constituting a
Disposition, the making of Permitted Investments;




     (l) any Disposition of Real Estate to a Governmental Authority as a result of the
condemnation of such Real Estate;




     (m) Dispositions of property to the extent that (i) such property is exchanged for
credit against the purchase price of similar replacement property that is promptly purchased
or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such
replacement property (which replacement property is actually promptly purchased);




     (n) to the extent constituting a Disposition, (i) transactions permitted by
Sections 7.04, (ii) Restricted Payments permitted by Section 7.06 and
(iii) Liens permitted by Section 7.01;




     (o) Dispositions of Investments in joint ventures; and




     (p) other Dispositions for consideration not exceeding $5,000,000 in the aggregate
during any consecutive twelve (12) month period so long as no Event of Default has occurred
and is continuing or would immediately result therefrom, provided that an amount equal to
the Net Proceeds of such Disposition received by any Loan Party is applied to the prepayment
of Loans in the manner and to the extent required by Section 2.05(f).



     “Permitted Domestic Overadvance” means a Domestic Overadvance made by the
Administrative Agent, in its Permitted Discretion, which:




     (a) is made to maintain, protect or preserve the Collateral and/or the Credit Parties’
rights under the Loan Documents or which is otherwise for the benefit of the Credit Parties;
or




     (b) is made to enhance the likelihood of, or to maximize the amount of, repayment of
any Obligation; or




     (c) is made to pay any other amount chargeable to any Loan Party hereunder or any other
Loan Document; and




     (d) together with all other Permitted Domestic Overadvances then outstanding, shall not
(i) exceed at any time the lesser of $10,000,000 or ten percent (10%) of the Domestic
Borrowing Base at any time or (ii) unless a Liquidation is occurring, remain outstanding for
more than thirty (30) consecutive Business Days, unless in each case, the Required Lenders
otherwise agree;



     provided, that the foregoing shall not (i) modify or abrogate any of the provisions of
Section 2.03 regarding each Domestic Lender’s obligations with respect to Domestic Letters
of Credit, or (ii) result in any claim or liability against the Administrative Agent (regardless of
the amount of any Domestic Overadvance) for “inadvertent Domestic Overadvances” (i.e. where a
Domestic Overadvance results from changed circumstances beyond the control of the Administrative
Agent (such as a reduction in the value of Collateral)), and such “inadvertent Domestic
Overadvances” shall not reduce the amount of Permitted Domestic Overadvances allowed hereunder, and
provided further, that in no event shall the Administrative Agent make a Domestic
Overadvance, if after giving effect thereto, the principal amount



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of the Domestic Credit Extensions would exceed the Aggregate Domestic Commitments (as in
effect prior to any termination of the Domestic Commitments pursuant to Section 2.06
hereof).




     “Permitted Encumbrances” means any of the following:




     (a) Liens imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 6.04;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by applicable Law, arising in the ordinary course of business and securing
obligations that are not overdue by more than thirty (30) days or are being contested in
compliance with Section 6.04;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security or similar laws or
regulations, other than any Lien imposed by ERISA or any other applicable Law relating to
Plans;




     (d) deposits to secure or relating to the performance of bids, trade contracts,
government contracts and leases (other than Indebtedness), statutory obligations, surety,
stay, customs and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;




     (e) Liens in respect of judgments that do not constitute an Event of Default hereunder;




     (f) easements, covenants, conditions, restrictions, building code laws, zoning
restrictions, rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary obligations and
do not materially detract from the value of the affected property or materially interfere
with the ordinary conduct of business of the Parent and the Americas Subsidiaries, taken as
a whole, and such other minor title defects or survey matters that are disclosed by current
surveys that, in each case, do not materially interfere with the ordinary conduct of
business of the Parent and the Americas Subsidiaries, taken as a whole;




     (g) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed other than after-acquired property affixed or incorporated thereto and proceeds
or products thereof, (ii) the amount secured or benefited thereby is not increased except to
the extent permitted hereunder, and (iii) any renewal or extension of the obligations
secured or benefited thereby is permitted hereunder;




     (h) Liens on fixed or capital assets acquired by any Loan Party securing Indebtedness
permitted under clause (c) of the definition of Permitted Indebtedness so long as (i) such
Liens and the Indebtedness secured thereby are incurred prior to or within one hundred and
eighty (180) days after such acquisition (other than refinancing thereof permitted
hereunder), (ii) the Indebtedness secured thereby does not exceed the cost of acquisition of
such fixed or capital assets and (iii) such Liens shall not extend to any other property or
assets of the Loan Parties, replacements thereof and additions and accessions to such
property and the proceeds and the products thereof;



-49-









 






     (i) Liens in favor the Administrative Agent and the Canadian Agent under the Security
Documents for their own benefit and the benefit of the other Credit Parties, as applicable;




     (j) landlords’ and lessors’ Liens in respect of rent not in default for more than any
applicable grace period, not to exceed thirty (30) days;




     (k) possessory Liens in favor of brokers and dealers arising in connection with the
acquisition or disposition of Investments owned as of the date hereof and other Permitted
Investments, provided that such Liens (i) attach only to such Investments or other
Investments held by such broker or dealer and (ii) secure only obligations incurred in the
ordinary course and arising in connection with the acquisition or disposition of such
Investments and not any obligation in connection with margin financing;




     (l) Liens arising solely by virtue of any statutory or common law provisions relating
to banker’s liens, liens in favor of securities intermediaries, rights of setoff or similar
rights and remedies as to deposit accounts or securities accounts or other funds maintained
with depository institutions or securities intermediaries;




     (m) Liens (if any) arising from precautionary UCC or PPSA filings regarding “true”
operating leases or the consignment of goods to a Loan Party or any Subsidiary;




     (n) voluntary Liens on property (other than property of any Loan Party of the type
included in either the Canadian Borrowing Base or the Domestic Borrowing Base) in existence
at the time such property is acquired pursuant to a Permitted Investment or on such property
of a Subsidiary of a Loan Party in existence at the time such Subsidiary is acquired
pursuant to a Permitted Investment; provided that such Liens are not incurred in
connection with, or in anticipation of, such Permitted Investment and do not attach to any
other assets of any Loan Party or any Subsidiary;




     (o) Liens in favor of customs and revenues authorities imposed by applicable Law
arising in the ordinary course of business in connection with the importation of goods and
securing obligations (i) that are not overdue by more than thirty (30) days, or (ii)(A) that
are being contested in good faith by appropriate proceedings, (B) the applicable Loan Party
or Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (C) such contest effectively suspends collection of the contested
obligation and enforcement of any Lien securing such obligation;




     (p) Liens on cash advances or any cash earnest money deposits in favor of the seller of
any property to be acquired in any Permitted Acquisition or other Permitted Investment;




     (q) leases or subleases granted to others in the ordinary course of business which do
not interfere in any material respect with the business of the Parent and its Subsidiaries,
taken as a whole;




     (r) any interest or title of a licensor, sublicensor, lessor or sublessor under
licenses, leases, sublicenses, or subleases entered into by the Parent or any of its
Subsidiaries in the ordinary course of business provided such interest or title is limited
to the property that is the subject of such transaction;



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     (s) Liens in respect of the licensing and sublicensing of Intellectual Property in the
ordinary course of business;




     (t) Liens that are contractual rights of set-off relating to purchase orders and other
similar agreements entered into by the Parent or any of its Subsidiaries;




     (u) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto incurred in the ordinary course of business;




     (v) Liens arising out of any sale and leaseback transaction permitted hereunder in the
real property and related improvements that are the subject of such transaction and securing
the related Indebtedness under clause (f) of the definition of “Permitted Indebtedness”;




     (w) Liens securing Indebtedness in respect of the Term Loan Documents (or any Permitted
Amendment/Refinancing in respect of any of the foregoing); provided such Liens (to
the extent covering Collateral) are subject to the Intercreditor Agreement (or, in the case
of any Permitted Amendment/Refinancing thereof, another intercreditor agreement containing
terms that are at least as favorable to the Credit Parties as those contained in the
Intercreditor Agreement); and




     (x) other Liens securing Indebtedness in an aggregate outstanding principal amount not
to exceed $5,000,000.



     “Permitted Indebtedness” means, without duplication, each of the following:




     (a) Indebtedness in respect of the Term Loan Documents and any other Indebtedness
outstanding on the date hereof and listed on Schedule 7.03 and any Permitted
Amendment/Refinancing of any of the foregoing Indebtedness;




     (b) Indebtedness (i) of any Loan Party to any other Loan Party; (ii) of any Subsidiary
that is not a Loan Party to any other Subsidiary that is not a Loan Party; and (iii) of any
Americas Subsidiary that is not a Loan Party to any Loan Party in an aggregate principal
amount not to exceed $5,000,000 outstanding at any time;




     (c) without duplication of Indebtedness described in clause (f) of this definition,
purchase money Indebtedness of any Loan Party to finance the acquisition of any fixed or
capital assets, including Capital Lease Obligations and Synthetic Lease Obligations, and any
Indebtedness assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted average life thereof
provided that the terms relating to principal amount, amortization, maturity, collateral (if
any) and subordination (if any), and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered
into and of any instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lenders than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded, renewed or extended and
the interest rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate, provided,
however, that the aggregate principal amount of Indebtedness permitted by this
clause (c) shall not exceed $25,000,000 at any time outstanding; provided further
that, if reasonably requested by any Agent (or in the case of any such Indebtedness of a



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Canadian Loan Party, the Canadian Agent), the Loan Parties shall use commercially
reasonable efforts to cause the holders of such Indebtedness to enter into a Collateral
Access Agreement in favor of the Administrative Agent or the Canadian Agent as applicable;




     (d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary thereof
existing or arising under any Swap Contract, provided that such obligations are (or
were) entered into by such Person in the ordinary course of business for the purpose of
mitigating risks associated with fluctuations in interest rates or foreign exchange rates,
and not for purposes of speculation or taking a “market view”;




     (e) Indebtedness in respect of performance bonds, bid bonds, customs and appeal bonds,
surety bonds, performance and completion guarantees and similar obligations related thereto,
in each case provided in the ordinary course of business;




     (f) Indebtedness incurred for the construction or acquisition or improvement of, or to
finance or to refinance, any Real Estate owned by any Loan Party (including therein any
Indebtedness incurred in connection with sale-leaseback transactions permitted hereunder),
provided that, (i) in the case of any sale-leaseback transaction, an amount equal to
the Net Proceeds received by any Loan Party in connection with any such Indebtedness is
applied to the outstanding Loans in the manner and to the extent required by Section
2.05(f) and (ii) if reasonably requested by the Agents or, if applicable, the Canadian
Agent, the Loan Parties shall use commercially reasonable efforts to cause the holders of
such Indebtedness to enter into a Collateral Access Agreement in favor of the Administrative
Agent or the Canadian Agent, as applicable;




     (g) Indebtedness with respect to the deferred purchase price for any Permitted
Acquisition, provided that such Indebtedness does not require the payment in cash of
principal (other than in respect of working capital adjustments) prior to the Maturity Date,
has a maturity which extends beyond the Maturity Date, and is subordinated to the
Obligations on terms reasonably acceptable to the Agents;




     (h) Indebtedness of any Person that becomes a Subsidiary of a Loan Party in a Permitted
Acquisition, which Indebtedness is existing at the time such Person becomes a Subsidiary
(other than Indebtedness incurred solely in contemplation of such Person’s becoming a
Subsidiary of a Loan Party);




     (i) the Obligations;




     (j) Intentionally Omitted;




     (k) Guarantees by the Parent in connection with the French Credit Agreement so long as
the aggregate principal amount of the obligations Guaranteed does not exceed €268,000,000
(inclusive of any principal amounts described in subsection (m), of this definition;




     (l) any obligations related to the call and put option arrangements to purchase the
preferred shares in Pilot SAS held by Jeannine Boix-Vives, Christine Simon and Sylvie
Bernard in connection with the shareholders agreement, dated as of April 12, 2005, among the
Parent, Laurent Boix-Vives, Jeannine Boix-Vives, Christine Simon and Sylvie Bernard (it
being understood, for the avoidance of doubt, that the amount of such obligations for
purposes of this Agreement shall not be increased as a result of any amendment to such
shareholders agreement);



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     (m) Guarantees of the Parent in connection with the Pilot SAS Facility so long as the
aggregate principal amount of the obligations Guaranteed does not exceed €55,000,000;




     (n) Guarantees of the Parent with respect to the obligations under the Societe Generale
Agreement in an aggregate principal amount not to exceed €50,000,000;




     (o) (i) Indebtedness constituting indemnification obligations or obligations in respect
of purchase price or other similar adjustments in connection with Permitted Dispositions;
and (ii) Indebtedness consisting of obligations of any Loan Party or any Americas Subsidiary
under deferred compensation or other similar arrangements incurred by such Person in
connection with any Permitted Investment;




     (p) Indebtedness consisting of the financing of insurance premiums incurred in the
ordinary course of business of any Loan Party or any Subsidiary;




     (q) Guarantees (i) of any Indebtedness of any Loan Party or any Subsidiary thereof
described in clause (a) hereof, (ii) by any Loan Party of any Indebtedness of another Loan
Party permitted hereunder, and (iii) by any Loan Party of Indebtedness otherwise permitted
hereunder of any Subsidiary that is not a Loan Party to the extent such Guarantees are
permitted pursuant to Section 7.02;




     (r) Indebtedness to current or former officers, directors, managers, consultants and
employees, their respective estates, spouses or former spouses to finance the purchase or
redemption of Equity Interests of the Parent to the extent permitted by Section
7.06;




     (s) Indebtedness consisting of obligations of any Loan Party under deferred
compensation or other similar arrangements incurred by such Person in connection with any
Investment to the extent permitted under Section 7.02;




     (t) Obligations in respect of Bank Products and Cash Management Services and other
Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft
protections and similar arrangements;




     (u) without duplication of any Indebtedness described in clause (a) through (t) above,
other Indebtedness in an aggregate principal amount not to exceed $40,000,000 at any time
outstanding; and




     (v) all premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in clauses (a)
through (u) above.



     “Permitted Investments” means each of the following:




     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or, with respect to the Canadian Loan Parties, Canada (or by
any agency or instrumentality of the United States of America or Canada, as applicable)
having maturities of not more than one year from the date of acquisition thereof;
provided that the full faith and credit of the United States of America or Canada,
as applicable, is pledged in support thereof;



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     (b) commercial paper issued by any Person organized under the laws of any state of the
United States of America or Canada or any province thereof and rated, at the time of
acquisition thereof, at least “Prime-1” (or the then equivalent grade) by Moody’s or at
least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more
than one year from the date of acquisition thereof;




     (c) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the
United States of America, any state thereof or the District of Columbia (or with respect to
the Canadian Loan Parties, Canada or any province thereof) or is the principal banking
subsidiary of a bank holding company organized under the laws of the United States of
America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated, at the
time of acquisition thereof, as described in clause (b) of this definition and (iii) has
combined capital and surplus of at least $500,000,000, in each case with maturities of not
more than one year from the date of acquisition thereof;




     (d) fully collateralized repurchase agreements with a term of not more than thirty (30)
days for securities described in clause (a) above (without regard to the limitation on
maturity contained in such clause) and entered into with a financial institution satisfying
the criteria described in clause (c) above at the time of acquisition thereof or with any
primary dealer and having a market value at the time that such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such counterparty entity
with whom such repurchase agreement has been entered into;




     (e) securities with maturities of one year or less from the date of acquisition issued
or fully guaranteed by any state, commonwealth or territory of the United States or province
or territory of Canada, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign government (as
the case may be) are rated at least A by S&P or A by Moody’s;




     (f) securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any commercial bank satisfying the
requirements of clause (c) of this definition;




     (g) marketable short-term money market and similar securities or funds having, at the
time of acquisition thereof, a rating of at least A-2 from S&P (or, if at any time S&P shall
not be rating such obligations, an equivalent rating from another nationally recognized
rating service);




     (h) Investments, classified in accordance with GAAP as current assets of the Loan
Parties, in any money market fund, mutual fund, or other shares of investment companies that
are registered under the Investment Company Act of 1940, and which invest primarily in one
or more of the types of securities described in clauses (a) through (g) above;




     (i) Investments existing on the Closing Date and set forth on Schedule 7.02,
and any modification, renewal or extension thereof; provided that the amount of any
Investment permitted pursuant to this clause is not increased from the amount of such
Investment on the Closing Date except pursuant to the terms of such Investment as of the
Closing Date or as otherwise permitted by Section 7.02;



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     (j) Investments (i) by any Loan Party in any other Loan Party, (ii) by any Subsidiary
that is not a Loan Party in any other Subsidiary that is not a Loan Party, and (iii) by any
Loan Party in any Subsidiary that is not a Loan Party; provided that all such Investments
pursuant to this clause (iii) shall not exceed $10,000,000 in the aggregate at any one time
outstanding, exclusive of any Investments in any Subsidiary organized under the laws of
Japan for purposes of refinancing, or providing a Guarantee by the Parent in respect of,
Indebtedness of any such Subsidiary, which shall not exceed $10,000,000 in the aggregate at
any one time outstanding;




     (k) (i) Investments by any Loan Party and its Subsidiaries in their respective
Subsidiaries outstanding on the date hereof; (ii) additional Investments by any Loan Party
and its Subsidiaries in Loan Parties; and (iii) Investments in, or for purposes of funding,
Quiksilver Brazil JV and QS Mexico Holdings to the extent required or contemplated by the
applicable joint venture agreement; provided that all such Investments made pursuant to this
clause (iii) shall not exceed $20,000,000 in the aggregate;




     (l) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and other credits to suppliers in the ordinary course
of business;




     (m) Guarantees constituting Permitted Indebtedness;




     (n) Investments in Swap Contracts permitted hereunder;




     (o) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (p) (i) advances of payroll payments to employees in the ordinary course of business
and (ii) other loans and advances to officers, directors and employees of the Loan Parties
and Subsidiaries in the ordinary course of business in an amount not to exceed $100,000 to
any individual at any time or in an aggregate amount not to exceed $1,000,000 at any time
outstanding; provided, however, that an individual’s use of a cashless
exercise procedure to pay the exercise price and required tax withholding (or either of
them) in connection with such individual’s exercise of a compensatory option to purchase
stock issued by the Parent shall not give rise to a loan or advance for the purposes of this
clause (ii) to the extent that all funds representing full payment of such option exercise
price and required tax withholding are actually remitted to the Parent before the close of
business on either (x) the date of exercise of the stock option or (y) the date of issuance
of the stock pursuant to the option exercise;




     (q) Investments constituting Permitted Acquisitions and earnest money deposits made in
connection with any letter of intent or purchase agreement entered into in connection with
any Permitted Acquisition;




     (r) capital contributions made by any Loan Party to another Loan Party;




     (s) Investments of any Person existing at the time such Person becomes a Subsidiary of
any Loan Party or consolidates, amalgamates or merges with the Parent or any of its
Subsidiaries (including in connection with a Permitted Acquisition) so long as such
Investments were not made in contemplation of such Person becoming a Subsidiary or of such
consolidation, amalgamation or merger;



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     (t) Guarantees of leases or other obligations of any Loan Party that do not constitute
Indebtedness, in each case entered into in the ordinary course of business;




     (u) other Investments in an aggregate amount not the exceed $10,000,000 at any time
outstanding; and




     (v) other Investments as long as the Payment Conditions are satisfied at the time of
consummation thereof;


provided, however, that notwithstanding the foregoing, (i) except as otherwise
provided in any Security Document, no Investment of any Loan Party of a type specified in clauses
(a) through (h) above (each, a “Cash Equivalent”) shall constitute a Permitted Investment unless
such Investment is pledged to the Administrative Agent or the Canadian Agent, as applicable, as
additional collateral for the applicable Obligations pursuant to such security and control
agreements as may be reasonably required by any Agent and (ii) no Cash Equivalent of any Loan Party
shall constitute a Permitted Investment after the occurrence and during the continuance of a Cash
Dominion Event while any Loans are outstanding unless such Cash Equivalent is a temporary
Investment pending expiration of an Interest Period for a LIBO Rate Loan or a BA Equivalent Loan
and the proceeds of such Cash Equivalent will be applied to the outstanding Loans (if any), in the
manner provided in Section 2.05, after the expiration of such Interest Period if a Cash
Dominion Event then exists and is continuing.




     “Permitted Overadvance” means either a Permitted Domestic Overadvance or a Permitted
Canadian Overadvance.



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



     “Pilot SAS” means Pilot SAS, a société par actions simplifiée and an indirect
subsidiary of the Parent.



     “Pilot SAS Facility” means that certain credit agreement dated as of March 14, 2008
among, inter alia, Pilot SAS, Crédit Lyonnais, BNP Paribas and Société Générale SA, as amended.



     “Plan” means (a) in respect of the Domestic Loan Parties any Pension Plan or “employee
benefit plan” (as such term is defined in Section 3(3) of ERISA) established by a Loan Party or,
with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any
ERISA Affiliate, or (b) in respect of the Canadian Loan Parties, any Canadian Pension Plan or other
pension benefit or retirement savings plan maintained by any of the Canadian Loan Parties for its
employees or its former employees to which any of the Canadian Loan Parties contributes or are
required to contribute with respect to which any of the Canadian Loan Parties have incurred or may
incur liability, including contingent liability.



     “Platform” has the meaning specified in Section 6.02.



     “Pledge Agreement” means the Pledge Agreement dated as of the Closing Date among the
Domestic Loan Parties party thereto and the Administrative Agent.



     “Post-Closing Letter” means that certain letter dated July 31, 2009 amongst the
Administrative Agent and the Loan Parties with respect to certain matters to be finalized and
delivered subsequent to the Closing Date.



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     “PPSA” means the Personal Property Security Act (Ontario) (or any successor statute)
or similar legislation of any other Canadian jurisdiction, including, without limitation, the Civil
Code of Quebec, the laws of which are required by such legislation to be applied in connection with
the issue, perfection, enforcement, opposability, validity or effect of security interests or other
applicable Liens.



     “Prepayment Event” means:




     (a) any Disposition (including pursuant to a sale and leaseback transaction) of any
property or asset of a Loan Party described in clause (b), (h) or (p) of the definition of
“Permitted Disposition” generating Net Proceeds in excess of $1,000,000;




     (b) any casualty, expropriation or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property or asset of a
Loan Party generating Net Proceeds in excess of $1,000,000, unless (i) the proceeds
therefrom are required to be paid to the holder of a Lien on such property or asset having
priority over the Lien of the Administrative Agent or the Canadian Agent, as applicable, or
(ii) except while a Cash Dominion Event exists, the proceeds therefrom are utilized for
purposes of replacing or repairing the assets in respect of which such proceeds were
received within 180 days of the occurrence of the damage to or loss of the assets being
repaired or replaced; or




     (c) the incurrence by a Loan Party of any Indebtedness for borrowed money other than
Permitted Indebtedness.



     “Prime Rate” means, for any day, a fluctuating rate per annum equal to the
highest of (a) the rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its “prime rate”, (b) the Federal Funds Rate for such day plus one-half of
one percent (0.50%) or (c) the Adjusted LIBO Rate for a one month interest period as determined on
such day plus one percent (1.00%). The “prime rate” is a rate set by Bank of America based upon
various factors including Bank of America’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 Bank of America shall
take effect at the opening of business on the day specified in the public announcement of such
change.



     “Prime Rate Loan” means a Canadian Prime Rate Loan or a Domestic Prime Rate Loan, as
the context may require.



     “Public Lender” has the meaning specified in Section 6.02.



     “Real Estate” means all land, together with the buildings, structures, parking areas,
and other improvements thereon, now or hereafter owned or leased by any Loan Party or any
Subsidiary, including all easements, rights-of-way, and similar rights relating thereto.



     “Receivables Advance Rate” means eighty-five percent (85%).



     “Receivables Reserves” means, without duplication of any other Reserves or items that
are otherwise addressed or excluded through eligibility criteria, such Reserves as may be
established from time to time by any Agent or, if applicable, the Canadian Agent in its Permitted
Discretion with respect to the determination of the collectibility in the ordinary course of
Eligible Trade Receivables. Upon the determination by any Agent or the Canadian Agent in its
Permitted Discretion that a Receivables Reserve should be established or modified, the
Co-Collateral Agent shall notify the Administrative Agent or the Canadian Agent, as applicable, in
writing and the Administrative Agent or the Canadian Agent, as



-57-









 




applicable, shall thereupon establish or modify such Receivables Reserve, in all cases subject
to the provisions of Section 9.18.




     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified by the Securities Laws
and shall be independent of the Parent and its Subsidiaries as prescribed by the Securities Laws.



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Reports” has the meaning provided in Section 9.12(b).



     “Request for Credit Extension” means (a) with respect to a Committed Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a
Swing Line Loan Notice.



     “Required Lenders” means, as of any date of determination, (a) at such time as there
are three (3) or fewer Lenders, all such Lenders and (b) at such time as there are more than three
(3) Lenders, at least two Lenders holding more than fifty percent (50%) of the Aggregate Total
Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer
to make L/C Credit Extensions have been terminated pursuant to Section 8.02, at least two
Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount
of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line
Loans being deemed “held” by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required Lenders.



     “Reserves” means all (if any) Inventory Reserves, Availability Reserves and
Receivables Reserves.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party or any of the other individuals
designated in writing to the Administrative Agent by an existing Responsible Officer of a Loan
Party as an authorized signatory of any certificate or other document to be delivered hereunder.
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of any
Loan Party or any of its Americas Subsidiaries, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital
stock or other Equity Interest, or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or
other right to acquire any such dividend or other distribution or payment. Without limiting the
foregoing, “Restricted Payments” with respect to any Loan Party or any



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Americas Subsidiary shall also include all payments made by such Person with any proceeds of a
dissolution or liquidation of such Loan Party or such Americas Subsidiary.




     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002, as amended and in effect from
time to time.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Securities Laws” means, collectively, the Securities Act of 1933, the Securities
Exchange Act of 1934, Sarbanes-Oxley, and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or the PCAOB; and all
applicable securities laws in each province and territory of Canada and the respective regulations,
rules regulations, blanket orders and blanket rulings under such laws together with applicable
published policy statements and notices of the securities regulator of each such province and
territory.



     “Security Agreement” means the Security Agreement dated as of the Closing Date among
the Domestic Loan Parties and the Administrative Agent.



     “Security Documents” means the Security Agreement, the Canadian Security Documents,
the Pledge Agreement, the Intellectual Property Security Agreement, the Blocked Account Agreements,
the Credit Card Notifications, and each other security agreement or other instrument or document
executed and delivered by or on behalf of any Loan Party to the Administrative Agent or the
Canadian Agent pursuant to this Agreement or any other Loan Document granting a Lien to secure any
of the Obligations or the Canadian Liabilities, as applicable.



     “Senior Note Indenture” means the Indenture, dated as of July 22, 2005, between the
Parent as issuer and Wilmington Trust Company as trustee in connection with the issuance of the
Senior Notes.



     “Senior Notes” means the senior unsecured notes issued by the Parent pursuant to the
Senior Note Indenture.



     “Settlement Date” has the meaning provided in Section 2.14(a).



     “Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Parent and its Subsidiaries, or the Parent and its Americas
Subsidiaries, as applicable, as of that date determined in accordance with GAAP, as applicable.



     “Shrink” means Inventory of the Borrowing Base Parties which has been lost, misplaced,
stolen, or is otherwise unaccounted for.



     “Societe Generale Agreement” means the Subscription Agreement, dated July 11, 2005,
with QS Finance Luxembourg SA, as issuer, and Société Générale, as subscriber, relating to
Indebtedness in an original aggregate principal amount of €50,000,000, as amended as the date
hereof and any Permitted Amendment/Refinancing thereof.



     “Solvent” and “Solvency” means, with respect to any Person on a particular
date, that on such date (a) at fair valuation, all of the properties and assets of such Person are
greater than the sum of the



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debts, including contingent liabilities, of such Person, (b) the present fair saleable value
of the properties and assets of such Person is not less than the amount that would be required to
pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person is able to realize upon its properties and assets and pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the normal course of
business, (d) such Person does not intend to, and does not believe that it will, incur debts beyond
such Person’s ability to pay as such debts mature, (e) such Person is not engaged in a business or
a transaction, and is not about to engage in a business or transaction, for which such Person’s
properties and assets would constitute unreasonably small capital after giving due consideration to
the prevailing practices in the industry in which such Person is engaged, and (f) such Person is
not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code and, in the case of
any Canadian Loan Party, is not an “insolvent person” within the meaning of such term in the
Bankruptcy and Insolvency Act (Canada), as applicable. The amount of all guarantees or other
contingent liabilities at any time shall be computed as the amount that, in light of all the facts
and circumstances existing at the time, can reasonably be expected to become an actual or matured
liability.




     “Standby Letter of Credit” means any Letter of Credit that is not a Commercial Letter
of Credit.



     “Stated Amount” means at any time, the maximum amount for which a Letter of Credit may
be honored.



     “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 FRB 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 FRB). Such reserve percentages shall include those imposed
pursuant to such Regulation D. LIBO Rate 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.



     “Store” means any retail store (which may include any real property, fixtures,
equipment, inventory and other property related thereto) operated, or to be operated, by any Loan
Party.



     “Subordinated Indebtedness” means Indebtedness which is expressly subordinated in
right of payment to the prior payment in full of the Obligations and which is in form and on terms
approved in writing by the Administrative Agent.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company, unlimited liability company or other business entity of which a majority of the
shares of Equity Interests having ordinary voting power for the election of directors or other
governing body are at the time beneficially owned, or the management of which is otherwise
Controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of a Loan Party.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap



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transactions, cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including any options to
enter into any of the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master agreement, together with
any related schedules, a “Master Agreement”), including any such obligations or liabilities under
any Master Agreement.




     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Lender Affiliate of a Lender).



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America, in its capacity as provider of Swing Line
Loans to the Domestic Borrowers, and Bank of America-Canada Branch, in its capacity as provider of
Swing Line Loans to the Canadian Borrower, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a), and shall
include all such Loans made by the Swing Line Lender to the Domestic Borrowers and the Canadian
Borrower.



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B-1 (Domestic Swing Line Loan Notice) or Exhibit B-2 (Canadian Swing Line Loan Notice),
as applicable.



     “Swing Line Note” means the Domestic Swing Line Note and the Canadian Swing Line Note,
as the context may require.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).



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



     “Term Loan Collateral Agent” means, collectively, (a) Rhône Group L.L.C., in its
capacity as sub-agent for the U.S. Term Loan Agent, as collateral agent, together with any
successor agent (including pursuant to any Permitted Amendment/Refinancing of the US Term Loan
Credit Agreement) and (b)



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Rhône Group L.L.C., in its capacity as sub-agent for the Euro Term Loan Agent, as collateral
agent, together with any successor agent (including pursuant to any Permitted Amendment/Refinancing
of the Euro Term Loan Credit Agreement).




     “Term Loans” means the term loans in the original principal amount of $125,000,000
made pursuant to the US Term Loan Credit Agreement and €20,000,000 made pursuant to the Euro Term
Loan Credit Agreement, in each case together with all interest paid in kind, if any, that has been
added to the principal balance of such loans.



     “Term Loan Documents” means any and all documents executed in connection with the US
Term Loan Credit Agreement or the Euro Term Loan Credit Agreement.



     “Termination Date” means the earliest to occur of (i) the Maturity Date, (ii) the date
on which the maturity of the Obligations is accelerated (or deemed accelerated) and the Commitments
are irrevocably terminated (or deemed terminated) in accordance with Article VIII, or
(iii) the date of the occurrence of any Event of Default pursuant to Section 8.01(f).



     “Total Canadian Outstandings” means, without duplication, the aggregate Outstanding
Amount of all Canadian Loans and all Canadian L/C Obligations.



     “Total Domestic Outstandings” means, without duplication, the aggregate Outstanding
Amount of all Domestic Loans and all Domestic L/C Obligations.



     “Total Loan Cap” means the aggregate of the Canadian Loan Cap and the Domestic Loan
Cap.



     “Total Outstandings” means the aggregate of all Total Canadian Outstandings and all
Total Domestic Outstandings.



     “Trading with the Enemy Act” has the meaning set forth in Section 10.18.



     “Type” means, with respect to a Committed Loan, its character as a Prime Rate Loan, a
LIBO Rate Loan or a BA Equivalent Loan.



     “UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in
effect from time to time in the State of New York and all terms used in this Agreement or any other
Loan Document and not otherwise defined herein or therein shall have the respective meanings (if
any) given such terms in the UCC; provided that, if a term is defined in Article 9 of the
Uniform Commercial Code differently than in another Article thereof, the term shall have the
meaning set forth in Article 9; provided further that, if by reason of mandatory provisions
of law, perfection, or the effect of perfection or non-perfection, of a security interest in any
Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, “Uniform Commercial Code” means
the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or effect of perfection or non-perfection or availability of
such remedy, as the case may be.



     “UFCA ” has the meaning specified in Section 10.23(d).



     “UFTA” has the meaning specified in Section 10.23(d).



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in



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accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of
the Code for the applicable plan year.




     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “US Term Loan Agent” means Rhône Group L.L.C., in its capacity as agent for the
lenders under the US Term Loan Credit Agreement, together with any successor agent (including
pursuant to any Permitted Amendment/Refinancing of the US Term Loan Credit Agreement).



     “US Term Loan Credit Agreement” means that certain Credit Agreement dated as of the
Closing Date among the Parent, the Lead Borrower, the lenders party thereto and the US Term Loan
Agent (and any Permitted Amendment/Refinancing thereof).



     “Wholly Owned Subsidiary” means, with respect to any Person, any corporation,
partnership or other entity of which all of the Equity Interests (other than, in the case of a
corporation, directors’ qualifying shares) are directly or indirectly owned or controlled by such
Person or one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more
Wholly Owned Subsidiaries of such Person.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, restated, amended and restated, supplemented or
otherwise modified (subject to any restrictions on such amendments, restatements, amendment
and restatements, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, and (vi) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.




     (b) In the computation of periods of time from a specified date to a later specified
date, unless otherwise expressly provided, 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.”



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     (c) Article and Section headings used herein and in the other Loan Documents are for
convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement or any other
Loan Document.




     (d) Any other undefined term contained in any of the Loan Documents shall, unless the
context indicates otherwise, have the meaning provided for such term in the Uniform
Commercial Code as in effect in the State of New York or the PPSA, as the context may
require, to the extent the same are used or defined therein.




     (e) Whenever any provision in any Loan Document refers to the knowledge (or an
analogous phrase) of any Loan Party, such words are intended to signify that such Loan Party
has actual knowledge or awareness of a particular fact or circumstance or that such Loan
Party, if it had exercised reasonable diligence, would have known or been aware of such fact
or circumstance.



     1.03 Accounting Terms; Currency Equivalents.




     (a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from
time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.




     (b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either
the Lead Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Lead Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject
to the approval of the Required Lenders); provided that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Lead Borrower shall provide to the Administrative Agent and
the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.



     1.04 Rounding. Any financial ratios required to be maintained by the Loan Parties pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



     1.06 Letter of Credit Amounts. Unless otherwise specified, all references herein to the
amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of
Credit in effect at such time; provided, however, that with respect to any Letter of Credit
that, by its terms of any Issuer Documents related thereto, provides for one or more automatic
increases in the Stated Amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum Stated Amount of such




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Letter of Credit after giving effect to all such increases, whether or not such maximum Stated
Amount is in effect at such time.




     1.07 Certifications.



     All certifications to be made hereunder by an officer or representative of a Loan Party shall
be made by such Person in his or her capacity solely as an officer or a representative of such Loan
Party, on such Loan Party’s behalf and not in such Person’s individual capacity.



     1.08 Currency Equivalents Generally. Any amount specified in this Agreement (other than
in Articles II, IX and X, and except as may be calculated pursuant to the definitions of
Equivalent Amount or Equivalent CD$ Amount) or any of the other Loan Documents to be in Dollars
shall also include the equivalent of such amount in any currency other than Dollars, such
equivalent amount thereof in the applicable currency to be determined by the Administrative Agent
at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency
with Dollars. For purposes of this Section 1.08, the “Spot Rate” for a currency means the
rate determined by the Administrative Agent to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with another currency
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date of such determination; provided that the Administrative Agent may
obtain such spot rate from another financial institution designated by the Administrative Agent if
the Person acting in such capacity does not have as of the date of determination a spot buying rate
for any such currency. Notwithstanding the foregoing, for purposes of determining compliance with
Sections 7.01, 7.02 and 7.03 with respect to any amount of Indebtedness
or Investment in a currency other than Dollars, no Default or Event of Default shall be deemed to
have occurred solely as a result of changes in rates of exchange occurring after the time such
Indebtedness or Investment is incurred.



     1.09 Québec Matters. For purposes of any assets, liabilities or entities located in the
Province of Québec and for all other purposes pursuant to which the interpretation or construction
of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal
exercising jurisdiction in the Province of Québec, (a) “personal property” shall include “movable
property”, (b) “real property” or “real estate” shall include “immovable property”, (c) “tangible
property” shall include “corporeal property”, (d) “intangible property” shall include “incorporeal
property”, (e) “security interest”, “mortgage” and “security” shall include a “hypothec”, “right of
retention”, “prior claim” and a resolutory clause, (f) all references to filing, perfection,
priority, remedies, registering or recording under the UCC or a PPSA shall include publication
under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” security or
security interest shall include a reference to an “opposable” or “set up” hypothec, security or
security interest as against third parties, (h) any “right of offset”, “right of setoff” or similar
expression shall include a “right of compensation”, (i) “goods” shall include “corporeal movable
property” other than chattel paper, documents of title, instruments, money and securities, (j) an
“agent” shall include a “mandatary”, (k) “construction security” shall include “legal hypothecs”,
(l) “joint and several” shall include “solidary”, (m) “gross negligence or willful misconduct”
shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall include
“ownership on behalf of another as mandatary”; (o) “easement” shall include “servitude”, (p)
“priority” shall include “prior claim”, (q) “survey” shall include “certificate of location and
plan”, (r) “state” shall include “province”, (s) “fee simple title” shall include “absolute
ownership”, and (t) “accounts” shall include “claims”.



ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Committed Loans; Reserves.



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          (a) Subject to the terms and conditions set forth herein, each Domestic Lender severally
agrees to make Committed Domestic Loans to the Domestic Borrowers from time to time, on any
Business Day during the Availability Period, in an aggregate principal amount not to exceed at any
time outstanding the lesser of (x) the amount of the Domestic Commitment of such Domestic Lender,
or (y) the Applicable Percentage of the Domestic Borrowing Base for such Domestic Lender; subject
in each case to the following limitations:





          (i) after giving effect to any Committed Domestic Borrowing, the Total Domestic
Outstandings shall not exceed the Domestic Loan Cap,




          (ii) after giving effect to any Committed Domestic Borrowing, the aggregate Outstanding
Amount of the Committed Domestic Loans of any Domestic Lender, plus (without
duplication) the Applicable Percentage of the Outstanding Amount of all Domestic L/C
Obligations for such Domestic Lender, plus such Domestic Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans made to the Domestic Borrowers
shall not exceed the Domestic Commitment of such Domestic Lender, and




          (iii) the Outstanding Amount of all Domestic L/C Obligations shall not at any time
exceed the Domestic Letter of Credit Sublimit.


Within the limits of the Domestic Commitment for each Domestic Lender, and subject to the
other terms and conditions hereof, the Domestic Borrowers may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Committed Domestic Loans may be Domestic Prime Rate Loans or LIBO
Rate Loans, as further provided herein.




          (b) Subject to the terms and conditions set forth herein, each Canadian Lender severally
agrees to make Committed Canadian Loans to the Canadian Borrower from time to time, on any Business
Day during the Availability Period, in an aggregate principal amount not to exceed at any time
outstanding the lesser of (x) the amount of the Canadian Commitment of such Canadian Lender, or (y)
the Applicable Percentage of the Canadian Borrowing Base for such Canadian Lender; subject in each
case to the following limitations:





          (i) after giving effect to any Committed Canadian Borrowing, the Total Canadian
Outstandings shall not exceed the Canadian Loan Cap,




          (ii) after giving effect to any Committed Canadian Borrowing, the aggregate Outstanding
Amount of the Committed Canadian Loans of any Canadian Lender, plus (without
duplication) the Applicable Percentage of the Outstanding Amount of all Canadian L/C
Obligations for such Canadian Lender, plus such Canadian Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans made to the Canadian Borrower,
shall not exceed the Canadian Commitment of such Canadian Lender, and




          (iii) the Outstanding Amount of all Canadian L/C Obligations shall not at any time
exceed the Canadian Letter of Credit Sublimit.


Within the limits of the Canadian Commitment for each Canadian Lender, and subject to the
other terms and conditions hereof, the Canadian Borrower may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Committed Canadian Loans may be Canadian Prime Rate Loans, LIBO
Rate Loans (if in Dollars) or BA Equivalent Loans, as further provided herein.




          (c) The following are the Inventory Reserves and Availability Reserves as of the Closing
Date:





          (i) Shrink (an Inventory Reserve): In the amounts set forth on the Borrowing Base
Certificate delivered on the Closing Date;




          (ii) Domestic Rent (an Availability Reserve): An amount equal to two (2) months’ rent
for all of the Domestic Borrowers’ leased locations in each Landlord Lien State in the
United States, other than leased locations with respect to which the Administrative Agent
has received a Collateral Access Agreement (to be deducted from the Domestic Borrowing
Base);



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          (iii) Canadian Rent (an Availability Reserve): An amount equal to two (2) months’ rent
for all of the Canadian Loan Parties’ leased locations in each Landlord Lien State in
Canada, other than leased locations with respect to which the Canadian Agent has received a
Collateral Access Agreement (to be deducted from the Canadian Borrowing Base);




          (iv) Customer Deposit Liabilities (an Availability Reserve): An amount equal to one
hundred percent (100%) of the customer deposits with the Domestic Borrowers (to be deducted
from the Domestic Borrowing Base) and an amount equal to one hundred percent (100%) of the
customer deposits with the Canadian Loan Parties (to be deducted from the Canadian Borrowing
Base); and




          (v) Gift Certificate and Card Liabilities (an Availability Reserve): An amount equal to
fifty percent (50%) of the Customer Credit Liabilities related to gift certificates or gift
cards as reflected in the Domestic Borrowers’ books and records (to be deducted from the
Domestic Borrowing Base) and an amount equal to fifty percent (50%) of the Customer Credit
Liabilities related to gift certificates or gift cards as reflected in the Canadian
Loan Parties’ books and records (to be deducted from the Canadian Borrowing Base).




          (vi) Other Reserves: As set forth on the Borrowing Base Certificate delivered on the
Closing Date.



          (d) Subject to the provisions of Section 9.18, any Agent and, if applicable, the
Canadian Agent, shall have the right, at any time and from time to time after the Closing Date, in
its Permitted Discretion to establish new, or modify or eliminate any existing Reserves.




     2.02 Committed Borrowings, Conversions and Continuations of Committed Loans.



          (a) Committed Domestic Loans shall be either Domestic Prime Rate Loans or LIBO Rate Loans, as
the Lead Borrower or the Parent, on behalf of the Domestic Borrowers, may request subject to and in
accordance with this Section 2.02. All Swing Line Loans made to the Domestic Borrowers
shall be only Domestic Prime Rate Loans. Committed Canadian Loans shall be either Canadian Prime
Rate Loans, LIBO Rate Loans (if in Dollars) or BA Equivalent Loans, as the Canadian Borrower or
the Parent, on behalf of the Canadian Borrower, may request subject to and in accordance with this
Section 2.02. All Swing Line Loans made to the Canadian Borrower shall be only Canadian
Prime Rate Loans. Subject to the other provisions of this Section 2.02, Committed
Borrowings of more than one Type may be incurred at the same time.




          (b) Each Committed Borrowing, each conversion of a Committed Loan from one Type to the other,
and each continuation of LIBO Rate Loans and BA Equivalent Loans shall be made upon the irrevocable
notice of the Lead Borrower or the Parent on behalf of the Domestic Borrowers or the Canadian
Borrower or the Parent on behalf of the Canadian Borrower, as applicable, to the Administrative
Agent or the Canadian Agent, as applicable, which may be given by telephone. Each such notice must
be received by the Administrative Agent or the Canadian Agent, as applicable, not later than 11:00
a.m. (i) three Business Days prior to the requested date of any Committed Borrowing of, conversion
to or continuation of LIBO Rate Loans or BA Equivalent Loans, or of any conversion of (x) LIBO Rate
Loans to Domestic Prime Rate Loans or, (in the case of the Canadian Borrower), to Canadian Prime
Rate Loans or (y) BA Equivalent Loans to Canadian Prime Rate Loans, and (ii) one Business Day prior
to the requested date of any Committed Borrowing of either Canadian Prime Rate Loans or Domestic
Prime Rate Loans. Each telephonic notice by the Lead Borrower, the Parent or the Canadian Borrower
pursuant to this Section 2.02(b) must be confirmed promptly by delivery to the
Administrative Agent or the Canadian Agent, as applicable, of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Lead Borrower, the Parent or the
Canadian Borrower, as applicable. Each Committed Borrowing of, conversion to or continuation of
LIBO Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in
excess thereof. Each Committed Borrowing of, conversion to or continuation of BA Equivalent Loans
shall be in a principal amount of CD$500,000 or a whole multiple of CD$100,000 in excess thereof.
Except as provided in Sections 2.03(c) and 2.04(c), each Committed Borrowing of
or conversion to Canadian Prime




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Rate Loans or Domestic Prime Rate Loans, as applicable, shall be in
a principal amount of $500,000 or CD$500,000, as applicable, or a whole multiple of $100,000 or
CD$100,000, as applicable, in excess thereof. Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether the request is for a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of LIBO Rate Loans or BA Equivalent
Loans, (ii) the requested date of the Committed Borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the request fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Lead Borrower, the Parent or the Canadian Borrower, as the case may
be, fails to give a timely notice of a conversion or continuation of a LIBO Rate Loan or a BA
Equivalent Loan, then the applicable Committed Loans shall be made as, or converted to, Domestic
Prime Rate Loans or Canadian Prime Rate Loans, as applicable. Any such automatic conversion to
Prime Rate Loans shall be effective as of the last day of the Interest Period then in effect
with respect to the applicable LIBO Rate Loans or BA Equivalent Loans. If the Lead Borrower
requests a Committed Borrowing of, conversion to, or continuation of LIBO Rate Loans or the
Canadian Borrower requests a Committed Borrowing of, conversion to, or continuation of LIBO Rate
Loans or BA Equivalent Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding
anything to the contrary herein, a Swing Line Loan may not be converted to a LIBO Rate Loan or a BA
Equivalent Loan.




          (c) Following receipt of a Committed Loan Notice, the Administrative Agent or the Canadian
Agent, as applicable, shall promptly notify each Lender of the amount of its Applicable Percentage
of the applicable Committed Loans, and if no timely notice of a conversion or continuation is
provided by the Lead Borrower or the Parent, on behalf of the Domestic Borrower or by the Parent on
behalf of the Canadian Borrower, the Administrative Agent or the Canadian Agent, as applicable,
shall notify each Lender of the details of any automatic conversion to Prime Rate Loans described
in Section 2.02(b). In the case of a Committed Domestic Borrowing, each Domestic Lender
shall make the amount of its Committed Domestic Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice. In the case of a Committed
Canadian Borrowing, each Canadian Lender shall make the amount of its Committed Canadian Loan
available to the Canadian Agent in immediately available funds at the Canadian Agent’s Office not
later than 1:00 p.m. (Toronto time) on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Committed Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent or the Canadian Agent, as applicable, shall use reasonable efforts to make all
funds so received available to the applicable Borrowers in like funds by no later than 4:00 p.m.
(and, if such Borrowing is the initial Credit Extension, 4:00 p.m.) on the day of receipt by the
Administrative Agent or the Canadian Agent, as applicable, either by (i) crediting either the
account of the Lead Borrower or the Canadian Borrower, as applicable, on the books of Bank of
America, with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent
(by the Lead Borrower) or the Canadian Agent (by the Canadian Borrower); provided,
however, that (A) if, on the date a Committed Loan Notice with respect to a Committed
Canadian Borrowing is given by the Parent on behalf of the Canadian Borrower or the Canadian
Borrower, as applicable, there are Canadian L/C Borrowings outstanding, then the proceeds of such
Committed Canadian Borrowing, first, shall be applied to the payment in full of any such
Canadian L/C Borrowings, and second, shall be made available to the Canadian Borrower as
provided above; or (B) if, on the date a Committed Loan Notice with respect to a Committed Domestic
Borrowing is given by the Lead Borrower or the Parent on behalf of the Domestic Borrowers, there
are Domestic L/C Borrowings outstanding, then the proceeds of such Committed Domestic Borrowing,
first, shall be applied to the payment in full of any such Domestic L/C Borrowings, and
second, shall be made available to the Domestic Borrowers as provided above.




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          (d) In the event that the Domestic Borrowers, after receipt of an invoice therefor, fail to
pay any interest, fee, service charge, Credit Party Expenses, or other payment to which any Lender
or any Agent is entitled from the Domestic Loan Parties pursuant hereto when due, or at any time
after the occurrence and during the continuance of a Cash Dominion Event, or the Administrative
Agent’s reasonable determination that an Event of Default is likely to occur, the Administrative
Agent, without the request of the Lead Borrower, may advance such interest, fee, service charge,
Credit Party Expenses, or other payment to which any Lender or any Agent is entitled from the
Domestic Loan Parties pursuant hereto or any other Loan Document and may charge the same to the
Loan Account with respect to the Domestic Credit Extensions, notwithstanding that a Domestic
Overadvance may result thereby. In the event that the Canadian Borrower, after receipt of an
invoice therefor, fail to pay any interest, fee, service charge, Credit Party Expenses, or other
payment to which any Lender or any Agent or the Canadian Agent is entitled from the Canadian Loan
Parties pursuant hereto when due, or at any time after the occurrence and during the continuance of
a Cash Dominion Event, or the Administrative Agent’s reasonable determination that an Event of
Default is likely to occur, the Canadian Agent, without the
request of the Parent on behalf of the Canadian Borrower or the Canadian Borrower, may advance
such interest, fee, service charge, Credit Party Expenses, or other payment to which any Lender,
any Agent or the Canadian Agent is entitled from the Canadian Loan Parties pursuant hereto or any
other Loan Document and may charge the same to the Loan Account with respect to the Canadian Credit
Extensions, as applicable, notwithstanding that a Canadian Overadvance may result thereby. The
Administrative Agent shall advise the Lead Borrower of any such advance or charge by the
Administrative Agent promptly after the making thereof, and the Canadian Agent shall advise the
Canadian Borrower of any such advance or charge by the Canadian Agent promptly after the making
thereof. Such action on the part of the Administrative Agent or the Canadian Agent shall not
constitute a waiver of the applicable Credit Party’s rights and the applicable Borrowers’
obligations under Section 2.05(c). Any amount which is added to the principal balance of
the applicable Loan Account as provided in this Section 2.02(d) shall be deemed to be a
Domestic Prime Rate Loan or a Canadian Prime Rate Loan, as applicable.




          (e) Except as otherwise provided herein, a LIBO Rate Loan or a BA Equivalent Loan may be
continued or converted only on the last day of an Interest Period for such LIBO Rate Loan or BA
Equivalent Loan. During the existence of an Event of Default, no Loans may be requested as,
converted to or continued as LIBO Rate Loans or BA Equivalent Loans without the Consent of the
Required Lenders.




          (f) The Administrative Agent shall promptly notify the Lead Borrower and the applicable
Lenders of the interest rate applicable to any Interest Period for LIBO Rate Loans upon
determination of such interest rate. At any time that Domestic Prime Rate Loans are outstanding,
the Administrative Agent shall notify the Lead Borrower and the Domestic Lenders of any change in
Bank of America’s prime rate used in determining the Prime Rate promptly following the public
announcement of such change.




          (g) The Canadian Agent shall promptly notify the Canadian Borrower and the Canadian Lenders of
the interest rate applicable to any Interest Period for BA Equivalent Loans upon determination of
such interest rate. At any time that Canadian Prime Rate Loans are outstanding, the Canadian Agent
shall notify the Canadian Borrower and the Canadian Lenders of any change in Bank of America-Canada
Branch’s prime rate used in determining the Canadian Prime Rate promptly following the public
announcement of such change.




          (h) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten (10) Interest Periods in effect with respect to Committed Loans.




          (i) The Administrative Agent, the Canadian Agent, the Lenders, the Swing Line Lender and the
L/C Issuer shall have no obligation to make any Loan or to provide any Letter of Credit if an
Overadvance would result. The Administrative Agent may, in its Permitted Discretion, make
Permitted Domestic Overadvances without the consent of the Lenders, the Swing Line Lender and the
L/C Issuer and each Domestic Lender shall be bound thereby. The Canadian Agent may, in its
Permitted




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Discretion, make Permitted Canadian Overadvances without the consent of the Lenders, the
Swing Line Lender and the L/C Issuer and each Canadian Lender shall be bound thereby. Any
Permitted Overadvance may constitute a Swing Line Loan. A Permitted Domestic Overadvance is for
the account of the Domestic Borrowers and shall constitute a Domestic Prime Rate Loan and an
Obligation and shall be repaid by the Domestic Borrowers in accordance with the provisions of
Section 2.05(c). A Permitted Canadian Overadvance is for the account of the Canadian
Borrower and shall constitute a Canadian Prime Rate Loan and a Canadian Liability and shall be
repaid by the Canadian Borrower in accordance with the provisions of Section 2.05(c). The
making of any such Permitted Overadvance on any one occasion shall not obligate the Administrative
Agent, the Canadian Agent or any Lender to make or permit any Permitted Overadvance on any other
occasion or to permit such Permitted Overadvances to remain outstanding. The making by the
Administrative Agent or the Canadian Agent, as applicable, of a Permitted Overadvance shall not
modify or abrogate any of the provisions of Section 2.03 regarding the Lenders’
obligations to purchase participations with respect to Letters of Credit or of Section
2.04 regarding the Lenders’ obligations to purchase participations with respect to Swing Line
Loans. Neither
the Administrative Agent nor the Canadian Agent shall have any liability for, and no Loan
Party or Credit Party shall have the right to, or shall, bring any claim of any kind whatsoever
against the Administrative Agent or the Canadian Agent with respect to “inadvertent Overadvances”
(i.e. where an Overadvance results from changed circumstances beyond the control of the
Administrative Agent or the Canadian Agent (such as a reduction in the Collateral value))
regardless of the amount of any such Overadvance(s).




     2.03 Letters of Credit.



          (a) The Letter of Credit Commitment.




     Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance
upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time
on any Business Day during the period from the Closing Date until the Letter of Credit Expiration
Date, to issue Letters of Credit for the account of any Borrower (provided that any Canadian Letter
of Credit may be for the benefit of any Canadian Loan Party), and to amend or extend Letters of
Credit previously issued by it, in accordance with Section 2.03(b) below, and (2) to honor
drawings under the Letters of Credit; (B) each Domestic Lender severally agrees to participate in
Domestic Letters of Credit and any drawings thereunder; provided that, after giving effect
to any L/C Credit Extension with respect to any Domestic Letter of Credit, (x) the Total Domestic
Outstandings shall not exceed the Domestic Loan Cap, (y) the aggregate Outstanding Amount of the
Committed Domestic Loans of any Domestic Lender, plus (without duplication) such Domestic
Lender’s Applicable Percentage of the Outstanding Amount of all Domestic L/C Obligations,
plus such Domestic Lender’s Applicable Percentage of the Outstanding Amount of all Swing
Line Loans made to the Domestic Borrowers shall not exceed such Domestic Lender’s Domestic
Commitment, and (z) the Outstanding Amount of the Domestic L/C Obligations shall not exceed the
Domestic Letter of Credit Sublimit; and (C) each Canadian Lender severally agrees to participate in
Canadian Letters of Credit and any drawings thereunder; provided that, after giving effect
to any Canadian L/C Credit Extension, (x) the Total Canadian Outstandings shall not exceed the
Canadian Loan Cap, (y) the aggregate Outstanding Amount of the Committed Canadian Loans of such
Canadian Lender, plus (without duplication) such Canadian Lender’s Applicable Percentage of
the Outstanding Amount of all Canadian L/C Obligations, plus such Canadian Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans made to the Canadian
Borrower shall not exceed such Canadian Lender’s Canadian Commitment, and (z) the Outstanding
Amount of the Canadian L/C Obligations shall not exceed the Canadian Letter of Credit Sublimit.
Each request by the Lead Borrower or the Canadian Borrower, as applicable, for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by the Domestic Borrowers or
the Canadian Borrower, as applicable, that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit
shall be fully revolving, and accordingly such Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been



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drawn upon and
reimbursed. Any L/C Issuer (other than Bank of America or any of its Lender Affiliates) shall
notify the Administrative Agent or the Canadian Agent, as applicable, in writing on each Business
Day of all Letters of Credit issued on the prior Business Day by such L/C Issuer, provided that (i)
until the Administrative Agent advises any such L/C Issuer that the provisions of Section
4.02 are not satisfied, or (ii) the aggregate amount of the Letters of Credit issued in any
such week exceeds such amount as shall be agreed by the Administrative Agent and the L/C Issuer,
such L/C Issuer shall be required to so notify the Administrative Agent in writing only once each
week of the Letters of Credit issued by such L/C Issuer during the immediately preceding week as
well as the daily amounts outstanding for the prior week, such notice to be furnished on such day
of the week as the Administrative Agent and such L/C Issuer may agree.





          (i) The L/C Issuer shall not issue any Letter of Credit, if:




               (A) subject to Section 2.03(b)(iii), the expiry date of such
requested Standby Letter of Credit would occur more than twelve months after the date of
issuance or last extension, unless the Required Lenders have approved such expiry date; or




               (B) subject to Section 2.03(b)(iii), the expiry date of such
requested Commercial Letter of Credit would occur more than 180 days after the date of
issuance or last extension, unless the Required Lenders have approved such expiry date; or




               (C) the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless either such Letter of Credit is Cash Collateralized on or
prior to the Letter of Credit Expiration Date or all the Lenders have approved such expiry
date.



               (ii) The L/C Issuer shall not issue any Letter of Credit without the prior consent of the
Administrative Agent or the Canadian Agent, as applicable, if:




               (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good faith deems material to
it;




               (B) the issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer applicable to letters of credit generally;




               (C) except as otherwise agreed by the Administrative Agent or the Canadian Agent, as
applicable, and the L/C Issuer, such Letter of Credit is in an initial Stated Amount less
than $25,000 or CD$25,000, as applicable, in the case of a Commercial Letter of Credit, or
$100,000 or CD$100,000, as applicable, in the case of a Standby Letter of Credit;




               (D) such Letter of Credit is to be denominated in a currency other than Dollars or, in
the case of any Canadian Letter of Credit, Canadian Dollars; provided that if the
L/C Issuer, in its discretion, issues a Letter of Credit denominated in a currency other
than Dollars, all reimbursements by the applicable Borrowers of the honoring of any drawing
under such Letter of Credit shall be paid in the currency in which such Letter of Credit was
denominated;




               (E) such Letter of Credit contains any provisions for automatic reinstatement of the
Stated Amount after any drawing thereunder; or




               (F) a default of any Lender’s obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender or
Deteriorating Lender hereunder, unless the L/C Issuer has received Cash Collateral or
otherwise entered into



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arrangements satisfactory to the L/C Issuer with the applicable
Borrowers or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.



               (iii) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms hereof or
if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter
of Credit.



               (iv) The L/C Issuer shall act on behalf of the applicable Lenders with respect to any Letters
of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (A) provided to the Administrative Agent and the Canadian Agent in
Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the terms “Administrative Agent” and “Canadian
Agent” as used in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.



          (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension
Letters of Credit.




               (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Lead Borrower or the Parent on behalf of the Domestic Borrowers, or the Canadian
Borrower or Parent on behalf of the Canadian Borrower, as applicable, delivered to the L/C Issuer
(with a copy to the Administrative Agent and, if applicable, the Canadian Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the
Lead Borrower or the Parent or the Canadian Borrower, as applicable. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent and, if applicable, the
Canadian Agent, not later than 11:00 a.m. at least two (2) Business Days (or such later date and
time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their
sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) whether
such Letter of Credit is to be a Domestic Letter of Credit or a Canadian Letter of Credit, and the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing thereunder;
(G) the identity of the Borrower for the account of which such Letter of Credit is requested to be
issued; and (H) such other matters as the L/C Issuer may reasonably require. In the case of a
request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail reasonably satisfactory to
the L/C Issuer: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require. Additionally, the Lead Borrower or the Canadian Borrower,
as applicable, shall furnish to the L/C Issuer and the Administrative Agent and, if applicable, the
Canadian Agent, such other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer, the Administrative Agent
or the Canadian Agent may require.



               (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent and, if applicable, the Canadian Agent (by telephone or in writing)
that the Administrative Agent and, if applicable, the Canadian Agent has received a copy of such
Letter of Credit Application from the Lead Borrower or the Canadian Borrower, as applicable, and,
if not, the L/C Issuer will provide the Administrative Agent and, if applicable, the Canadian
Agent, with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the
Administrative Agent, the Canadian Agent or any Loan Party, at least one (1) Business Day prior to
the requested date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then, subject
to the terms and conditions hereof, the



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L/C Issuer shall, on the requested date, issue a Letter of
Credit for the account of the applicable Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance or amendment of each Letter of Credit, each Domestic
Lender or each Canadian Lender, as applicable, shall be deemed to (without any further action), and
hereby irrevocably and unconditionally severally agrees to, purchase from the L/C Issuer, without
recourse or warranty, a risk participation in such Letter of Credit in an amount equal to the
product of such Lender’s Applicable Percentage times the Stated Amount of such Letter of
Credit. Upon any change in the Domestic Commitments or the Canadian Commitments under this
Agreement, it is hereby agreed that with respect to all L/C Obligations, there shall be an
automatic adjustment to the participations hereby created to reflect the new Applicable Percentages
of the assigning and assignee Lenders.




               (iii) If the Lead Borrower on behalf of the Domestic Borrowers, or the Canadian Borrower, as
applicable, so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its
sole and absolute discretion, agree to issue a Standby Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided that
any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension
at least once in each twelve-month period (commencing with the date of issuance of such Standby
Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time
such Standby Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Lead
Borrower or the Canadian Borrower, as applicable, shall not be required to make a specific request
to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued,
the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the
extension of such Standby Letter of Credit at any time to an expiry date not later than the Letter
of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would
have no obligation, at such time to issue such Standby Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clauses (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before the Non-Extension
Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit
such extension or (2) from the Administrative Agent, the Canadian Agent, any Lender or the Lead
Borrower that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.



               (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will
also deliver to the Lead Borrower and the Administrative Agent and, if applicable, the Canadian
Agent, a true and complete copy of such Letter of Credit or amendment.



          (c) Drawings and Reimbursements; Funding of Participations.




               (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Lead Borrower or the Canadian
Borrower, as applicable, and the Administrative Agent and, if applicable, the Canadian Agent,
thereof; provided, however, that any failure to give or delay in giving such notice
shall not relieve the applicable Borrower of its obligation to reimburse the L/C Issuer and the
applicable Lenders with respect to any such payment. Not later than 11:00 a.m. on the first
(1st) Business Day after the date of any payment by the L/C Issuer under a Letter of
Credit (each such date,
an “Honor Date”), the applicable Borrower shall reimburse the L/C Issuer through the
Administrative Agent or the Canadian Agent, as applicable, in an aggregate principal amount equal
to the amount of such drawing. If such Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent or the Canadian Agent, as applicable, shall promptly notify each Domestic
Lender or each Canadian Lender, as applicable, of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage
thereof. In such event, the Domestic Borrowers or the Canadian Borrower, as



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applicable, shall be
deemed to have requested a Committed Borrowing of Domestic Prime Rate Loans or Canadian Prime Rate
Loans, as applicable, to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Prime Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Domestic Commitments or the Aggregate Canadian Commitments, as applicable, and the
conditions set forth in Section 4.02 (other than the delivery of a Committed
Loan Notice). Any notice given by the L/C Issuer, the Administrative Agent or the Canadian Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.




               (ii) Each Lender shall upon any notice delivered pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent or the Canadian Agent, as applicable, for the account
of the L/C Issuer at the Administrative Agent’s Office or the Canadian Agent’s Office, as
applicable, in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent or the
Canadian Agent, as applicable, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Domestic Prime Rate Loan to the Domestic Borrowers, or a Canadian Prime Rate Loan to the Canadian
Borrower, as applicable, in such amount. The Administrative Agent or the Canadian Agent, as
applicable, shall remit the funds so received to the L/C Issuer.



               (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed
Borrowing of Prime Rate Loans because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the Domestic Borrowers or the Canadian Borrower, as applicable,
shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default Rate. In such event, each
Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.



               (iv) Until each applicable Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely
for the account of the L/C Issuer.



               (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the
L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each Lender’s obligation to make
Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery of a Committed Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together
with interest as provided herein.



               (vi) If any Lender fails to make available to the Administrative Agent or the Canadian Agent,
as applicable, for the account of the L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent or the Canadian Agent, as applicable), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate, with respect to the Administrative Agent or payments due to the Canadian Agent
in Dollars, and the



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Bank of Canada Overnight Rate with respect to payments due to the
Canadian Agent in Canadian Dollars, and a rate determined by the L/C Issuer in accordance with
banking industry rules on
interbank compensation plus any administrative, processing or similar fees customarily charged
by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included
in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the
case may be. A certificate of the L/C Issuer submitted to any Lender (through the Administrative
Agent or the Canadian Agent, as applicable) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.




          (d) Repayment of Participations.




               (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance
with Section 2.03(c), if the Administrative Agent or the Canadian Agent, as
applicable, receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the applicable Borrowers or
otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent or the
Canadian Agent, as applicable), the Administrative Agent or the Canadian Agent, as applicable, will
distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent or the Canadian Agent,
as applicable.



               (ii) If any payment received by the Administrative Agent or the Canadian Agent, as applicable,
for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.05 (including pursuant to
any settlement entered into by the L/C Issuer in its discretion), each Domestic Lender or Canadian
Lender, as applicable, shall pay to the Administrative Agent or the Canadian Agent, as applicable,
for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative
Agent or the Canadian Agent, as applicable, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds
Rate, with respect to the Administrative Agent or payments due to the Canadian Agent in Dollars,
and the Bank of Canada Overnight Rate with respect to payments due to the Canadian Agent
in Canadian Dollars, from time to time in effect. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.



          (e) Obligations Absolute. The obligation of each Borrower to reimburse the L/C
Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:




               (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;



               (ii) the existence of any claim, counterclaim, setoff, defense or other right that any
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;



               (iii) any draft, demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit;



               (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft
or certificate that does not strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a



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trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;




               (v) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, any Borrower or any of their respective Subsidiaries; or



               (vi) the fact that any Event of Default shall have occurred and be continuing.



     The Lead Borrower or the Canadian Borrower, as applicable, shall promptly examine a copy of each
Domestic Letter of Credit or each Canadian Letter of Credit, as applicable, and each amendment
thereto that is delivered to such Person and, in the event of any claim of noncompliance with the
Lead Borrower’s or the Canadian Borrower’s,
as applicable, instructions or other irregularity, the Lead Borrower or the Canadian Borrower, as
applicable, will promptly notify the L/C Issuer. The Borrowers shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless such notice is
given as aforesaid.



          (f) Role of L/C Issuer. Each Lender and the Borrowers agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, the Canadian Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the approval of the Lenders
or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; (iii) any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit or any error in interpretation of technical terms; or (iv) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Issuer Document. The Borrowers hereby assume all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the Borrowers’
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, the Administrative Agent, the Canadian Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of the L/C
Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v)
of Section 2.03(e); provided, however, that anything in such clauses to
the contrary notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the L/C
Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrowers which the Borrowers prove
were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary (or the L/C Issuer may refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit), and the L/C Issuer shall not be responsible for the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason.




          (g) Cash Collateral. Upon the written request of the Administrative Agent or the
Canadian Agent, as applicable, if, as of the Letter of Credit Expiration Date, any L/C Obligation
(other than L/C Borrowings) for any reason remains outstanding, then, the Domestic
Borrowers shall, in each case, promptly Cash Collateralize the then Outstanding Amount of all
Domestic L/C Obligations (other than Domestic L/C Borrowings) and the Canadian Borrower shall, in
each case, promptly Cash Collateralize the then Outstanding Amount of all Canadian L/C Obligations
(other




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than Canadian L/C Borrowings). Sections 2.05 and 8.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize” means to
pledge and deposit into the applicable Cash Collateral Account or deliver to the Administrative
Agent or the Canadian Agent, as applicable, for the benefit of the L/C Issuer and the Domestic
Lenders or the Canadian Lenders, as applicable, as collateral for the Domestic L/C Obligations or
the Canadian L/C Obligations, as applicable, cash or deposit account balances in an amount equal to
one hundred eight percent (108%) of the Outstanding Amount of all Domestic L/C Obligations (other
than Domestic L/C Borrowings) or the Canadian L/C Obligations (other than Canadian L/C Borrowings),
as applicable, pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent or the Canadian Agent, as applicable, and the L/C Issuer (which documents are
hereby Consented to by the Lenders). Derivatives of such term have corresponding meanings.
The Domestic Borrowers hereby grant to the Administrative Agent (for the benefit of itself and the
other Credit Parties) a security interest in all such cash, deposit accounts and all balances in
the Cash Collateral Account established by the Domestic Loan Parties and all proceeds of the
foregoing to secure the Secured Obligations (as defined in the Security Agreement) of the Domestic
Loan Parties. The Canadian Loan Parties hereby grant to the Canadian Agent a security interest in
all such cash, deposit accounts and all balances in the Cash Collateral Account established by the
Canadian Loan Parties and all proceeds of the foregoing to secure the Canadian Liabilities. Cash
Collateral shall be maintained in blocked, interest-bearing deposit accounts at Bank of America or
Bank of America-Canada Branch, as applicable. If at any time the Administrative Agent reasonably
determines that any funds held by it as Cash Collateral are subject to any right or claim of any
Person other than the Administrative Agent (for the benefit of itself and the other Domestic Credit
Parties) and the US Term Loan Agent (subject to the Intercreditor Agreement) or that the total
amount of such funds is less than 108% of the aggregate Outstanding Amount of all Domestic L/C
Obligations (other than Domestic L/C Borrowings), the Domestic Borrowers will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding
Amount of all Domestic L/C Obligations (other than Domestic L/C Borrowings) over (y) the total
amount of funds, if any, then held by the Administrative Agent as Cash Collateral that the
Administrative Agent reasonably determines to be free and clear of any such right and claim. If
at any time the Canadian Agent reasonably determines that any funds held by it as Cash Collateral
are subject to any right or claim of any Person other than the Canadian Agent (for the benefit of
itself and the other Canadian Credit Parties) or that the total amount of such funds is less than
108% of the aggregate Outstanding Amount of all Canadian L/C Obligations (other than Canadian L/C
Borrowings), the Canadian Borrower will, forthwith upon demand by the Canadian Agent, pay to the
Canadian Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the
excess of (x) such aggregate Outstanding Amount of all Canadian L/C Obligations (other than
Canadian L/C Borrowings) over (y) the total amount of funds, if any, then held by the Canadian
Agent as Cash Collateral that the Canadian Agent reasonably determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as


Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to
reimburse the L/C Issuer and, to the extent not so applied, shall thereafter be applied to satisfy
other Obligations in the manner specified in Section 2.05 and Section 8.03.




          (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Lead Borrower or the Canadian Borrower, as applicable, when a Letter of Credit is issued,
(i) the rules of the ISP shall apply to each Standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each Commercial Letter of
Credit.




          (i) Letter of Credit Fees. The Domestic Borrowers shall pay to the Administrative
Agent for the account of the Domestic Lenders, and the Canadian Borrower shall pay to the Canadian
Agent, for the account of the Canadian Lenders, as applicable, each in accordance with its
Applicable




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Percentage, a Letter of Credit fee (the “Letter of Credit Fee”) for (i) in the
case of the Letter of Credit Fee payable by the Domestic Borrowers, each Domestic Letter of Credit
equal to the Applicable Rate multiplied by the daily Stated Amount under each such Domestic
Letter of Credit (whether or not such maximum amount is then in effect under such Domestic Letter
of Credit) and (ii) in the case of the Letter of Credit Fee payable by the Canadian Borrower, each
Canadian Letter of Credit equal to the Applicable Rate multiplied by the daily Stated
Amount under each such Canadian Letter of Credit (whether or not such maximum amount is then in
effect under such Canadian Letter of Credit). For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of the Letter of Credit shall be determined in
accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the
last Business Day of each calendar quarter, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand, and (ii) computed on a quarterly basis in arrears. If there is any change in the
Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of Credit shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained
herein, while any Event of Default exists, Administrative Agent may, and upon the request of the
Required Lenders shall, notify the Lead Borrower that all Letter of Credit Fees shall accrue at the
Default Rate and thereafter such Letter of Credit Fees shall accrue at the Default Rate to the
fullest extent permitted by applicable Law so long as such Event of Default is continuing.




          (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Domestic Borrowers and the Canadian Borrower, as applicable, shall pay directly to the L/C Issuer
for its own account a fronting fee (the “Fronting Fee”) (i) with respect to each Commercial
Letter of Credit, at a rate equal to 0.125% per annum, computed on the amount of such Letter of
Credit, and payable on a quarterly basis in arrears, and (ii) with respect to each Standby Letter
of Credit, at a rate equal to 0.125% per annum, computed on the daily amount available to be drawn
under such Letter of Credit and payable on a quarterly basis in arrears. Such Fronting Fees shall
be due and payable on the last Business Day of each calendar quarter, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of the Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Domestic Borrowers shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to Domestic Letters of
Credit as from time to time in effect. In addition, the Canadian Borrower shall pay directly to
the L/C Issuer for its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer relating to Canadian
Letters of Credit as from time to time in effect. Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.




          (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.




     2.04 Swing Line Loans.



          (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, to from time to time on any Business Day during the Availability Period,
make loans (each such loan, a “Swing Line Loan”) (i) to the Domestic Borrowers in an
aggregate principal amount not to exceed at any time outstanding the amount of the Domestic Swing
Line Sublimit, notwithstanding the fact that the Outstanding Amount of such Swing Line Loans made
to the Domestic Borrowers, when aggregated with the Applicable Percentage of the Outstanding Amount
of Committed Domestic Loans and Domestic L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender’s Domestic Commitment; provided, however, that
after giving effect to any Swing Line Loan made to the Domestic Borrowers, (x) the Total Domestic
Outstandings shall not exceed the Domestic Loan Cap, and




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(y) the aggregate Outstanding Amount of
the Committed Domestic Loans of any Domestic Lender at such time, plus (without
duplication) such Lender’s Applicable Percentage of the Outstanding Amount of all Domestic L/C
Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans made to the Domestic Borrowers at such time shall not exceed such
Lender’s Domestic Commitment; and (ii) to the Canadian Borrower in an aggregate principal amount
not to exceed at any time outstanding the amount of the Canadian Swing Line Sublimit,
notwithstanding the fact that the Outstanding Amount of such Swing Line Loans made to the Canadian
Borrower, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed
Canadian Loans and Canadian L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender’s Canadian Commitment; provided, however, that after
giving effect to any Swing Line Loan made to the Canadian Borrower, (x) the Total Canadian
Outstandings shall not exceed the Canadian Loan Cap, and (y) the aggregate Outstanding Amount of
the Committed Canadian Loans of any Canadian Lender at such time, plus (without
duplication) such Lender’s Applicable Percentage of the Outstanding
Amount of all Canadian L/C Obligations at such time, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans made to the Canadian Borrower at such
time shall not exceed such Lender’s Canadian Commitment. No Borrower shall use the proceeds of any
Swing Line Loan to refinance any outstanding Swing Line Loan, and 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 applicable Borrower or such Lender to eliminate the Swing Line
Lender’s risk with respect to such Lender. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay
under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan
shall bear interest only at a rate based on the Prime Rate or the Canadian Prime Rate, as
applicable. Immediately upon the making of a Swing Line Loan to the Domestic Borrowers, each
Domestic Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan
made to the Domestic Borrowers. Immediately upon the making of a Swing Line Loan to the Canadian
Borrower, each Canadian Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender’s Applicable Percentage times the amount of such
Swing Line Loan made to the Canadian Borrower. The Swing Line Lender shall have all of the
benefits and immunities (A) provided to the Administrative Agent in Article IX with
respect to any acts taken or omissions suffered by the Swing Line Lender in connection with Swing
Line Loans made by it or proposed to be made by it as if the term “Administrative Agent” as used in
Article IX included the Swing Line Lender with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the Swing Line Lender.




          (b) Swing Line Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
irrevocable notice of the Lead Borrower or the Parent on behalf of the Domestic Borrowers or the
Parent on behalf of the Canadian Borrower or the Canadian Borrower, as applicable, to the Swing
Line Lender and the Administrative Agent or the Canadian Agent, as applicable, which may be given
by telephone. Each such notice must be received by the Swing Line Lender and the Administrative
Agent or the Canadian Agent, as applicable, not later than 1:00 p.m. on the requested borrowing
date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 or
CD$100,000, as applicable, and (ii) the requested borrowing date, which shall be a Business Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent or the Canadian Agent, as applicable, of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Lead Borrower, the Parent or the
Canadian Borrower, as applicable. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
or the Canadian Agent, as applicable (by telephone or in writing) that the Administrative Agent or
the Canadian Agent, as applicable, has also received such Swing Line Loan Notice and, if not, the
Swing Line Lender will notify the Administrative




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Agent or the Canadian Agent, as applicable (by
telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice
(by telephone or in writing) from the Administrative Agent or the Canadian Agent at the request of
the Required Lenders prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso in clause (i) or clause (ii) to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender may,
in its discretion, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Domestic Borrowers or the Canadian
Borrower, as applicable, at its office by crediting the account of the Lead Borrower or such other
account as directed by the Parent or the applicable Borrower, as applicable, on the books of the
Swing Line Lender in immediately available funds.




          (c) Refinancing of Swing Line Loans.




               (i) The Swing Line Lender, at any time in its sole and absolute discretion, may request,
on behalf of the Domestic Borrowers or the Canadian Borrower, as applicable (which hereby
irrevocably authorize the Swing Line Lender to so request on their behalf), that each Domestic
Lender or each Canadian Lender, as applicable, make a Prime Rate Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding to the Domestic
Borrowers or the Canadian Borrower, as applicable; provided that the Swing Line Lender shall settle
the Swing Line Loans with the Lenders weekly in accordance with Section 2.14(a).
Such request shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the
principal amount of Prime Rate Loans, but subject to the unutilized portion of the Aggregate
Domestic Commitments or the Aggregate Canadian Commitments, as applicable, and the conditions set
forth in Section 4.02. The Swing Line Lender shall furnish the Lead Borrower or
the Canadian Borrower, as applicable, with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent or the Canadian Agent, as applicable.
Each Domestic Lender or each Canadian Lender, as applicable, shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan Notice available to the
Administrative Agent or the Canadian Agent, as applicable, in immediately available funds for the
account of the Swing Line Lender at the Administrative Agent’s Office or the Canadian Agent’s
Office, as applicable, not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Domestic Lender or each Canadian
Lender, as applicable, that so makes funds available shall be deemed to have made a Domestic Prime
Rate Loan to the Domestic Borrowers or a Canadian Prime Rate Loan to the Canadian Borrower, as
applicable, in such amount. The Administrative Agent or the Canadian Agent, as applicable, shall
remit the funds so received to the Swing Line Lender.



               (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing
in accordance with Section 2.04(c)(i), the request for Prime Rate Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the applicable Lenders fund its risk participation in the relevant Swing Line Loan and each
such Lender’s payment to the Administrative Agent or the Canadian Agent, as applicable, for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in
respect of such participation.



               (iii) If any Lender fails to make available to the Administrative Agent or the Canadian Agent,
as applicable, for the account of the Swing Line Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender
(acting through the Administrative Agent or the Canadian Agent, as applicable), on demand, such
amount with interest thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of the Federal



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Funds Rate, with respect to the Administrative Agent or payments due to
the Canadian Agent in Dollars, and the Bank of Canada Overnight Rate with respect to
payments due to the Canadian Agent in Canadian Dollars, and a rate determined by the Swing Line
Lender in accordance with banking industry rules on interbank compensation plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or
funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the
Swing Line Lender submitted to any Lender (through the Administrative Agent or the Canadian Agent,
as applicable) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




               (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line
Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each Lender’s obligation to make
Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of any Borrower to repay Swing Line Loans, together with interest as provided
herein.



          (d) Repayment of Participations.




               (i) At any time after any Lender has purchased and funded a risk participation in a Swing
Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the
Swing Line Lender will distribute to such Lender its Applicable Percentage of such payment
(appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Lender’s risk
participation was funded) in the same funds as those received by the Swing Line Lender.



               (ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan made to a Domestic Borrower is required to be returned by the Swing Line Lender
under any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Domestic Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount is returned, at a rate
per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the
request of the Swing Line Lender. The obligations of the Domestic Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this Agreement.



               (iii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan made to the Canadian Borrower is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 10.05 (including pursuant to
any settlement entered into by the Swing Line Lender in its discretion), each Canadian Lender shall
pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Canadian Agent,
plus interest thereon from the date of such demand to the date such amount is returned, at a rate
per annum equal to the Bank of Canada Overnight Rate with respect to payments due to the
Canadian Agent in Canadian Dollars and the Federal Funds Rate with respect to payments due to the
Canadian Agent in Dollars. The Canadian Agent will make such demand upon the request of the Swing
Line Lender. The obligations of the Canadian Lenders under this clause shall survive the payment
in full of the Canadian Liabilities and the termination of this Agreement.



          (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrowers for interest on the Swing Line Loans. Until each Lender
funds its Prime Rate Loan or risk participation pursuant to this Section 2.04 to refinance
such Lender’s Applicable




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Percentage of any Swing Line Loan, interest in respect of such Applicable
Percentage shall be solely for the account of the Swing Line Lender.




          (f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender at the
office specified by the Swing Line Lender in writing to the Lead Borrower.




     2.05 Prepayments.



          (a) The Borrowers may, upon irrevocable notice from the Lead Borrower to the Administrative
Agent (with respect to Committed Loans made to Domestic Borrowers) or from the Canadian Borrower to
the Canadian Agent (with respect to Committed Loans made to the Canadian Borrower), at any time or
from time to time voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent or the Canadian
Agent, as applicable, not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of LIBO Rate Loans or BA Equivalent Loans and (B) on the date of prepayment of Prime
Rate Loans; (ii) any voluntary prepayment of LIBO Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any voluntary prepayment of
BA Equivalent Loans shall be in a principal amount of CD$500,000 or a whole multiple of CD$100,000
in excess thereof; and (iv) any voluntary prepayment of Prime Rate Loans shall be in a principal
amount of $500,000 or CD$500,000, as applicable, or a whole multiple of $100,000 or CD$100,000, as
applicable, in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid and, if LIBO Rate Loans or BA Equivalent Loans, the Interest Period(s) of
such Loans. The Administrative Agent or the Canadian Agent, as applicable, will promptly notify
each Domestic Lender or Canadian Lender, as applicable, of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Lead Borrower or the Canadian Borrower, the applicable Borrowers shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a LIBO Rate Loan or a BA Equivalent Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Committed Loans of the Lenders
in accordance with their respective Applicable Percentages.




          (b) The Borrowers may, upon irrevocable notice from the Lead Borrower (with respect to Swing
Line Loans made to the Domestic Borrowers) or the Canadian Borrower (with respect to Swing Line
Loans made to the Canadian Borrower) to the Swing Line Lender (with a copy to the Administrative
Agent or the Canadian Agent, as applicable), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Swing Line Lender and the Administrative Agent or the Canadian
Agent, as applicable, not later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000 or CD$100,000, as applicable, or, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment. If such notice is given, the Domestic Borrowers or the
Canadian Borrower, as applicable, shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein.




          (c) If for any reason the Total Domestic Outstandings at any time exceed the Domestic Loan Cap
as then in effect, the Domestic Borrowers shall immediately prepay Committed Domestic Loans, Swing
Line Loans made to the Domestic Borrowers and Domestic L/C Borrowings and/or Cash Collateralize the
Domestic L/C Obligations (other than Domestic L/C Borrowings) in an aggregate amount equal to such
excess; provided, however, that the Domestic Borrowers shall not be required to
Cash Collateralize the Domestic L/C Obligations pursuant to this Section 2.05(c) unless
after the prepayment in full of the Domestic Loans the Total Domestic Outstandings exceed the
lesser of the Aggregate Domestic Commitments or the Domestic Borrowing Base, each as then in
effect.




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          (d) If for any reason the Total Canadian Outstandings at any time exceed the Canadian Loan Cap
as then in effect, the Canadian Borrower shall immediately prepay Committed Canadian Loans, Swing
Line Loans made to the Canadian Borrower and Canadian L/C Borrowings and/or Cash Collateralize the
Canadian L/C Obligations (other than Canadian L/C Borrowings) in an aggregate amount equal to such
excess; provided, however, that the Canadian Borrower shall not be required to Cash
Collateralize the Canadian L/C Obligations pursuant to this Section 2.05(d) unless after
the prepayment in full of the Canadian Loans the Total Canadian Outstandings exceed the lesser of
the Aggregate Canadian Commitments or the Canadian Borrowing Base, each as then in effect.




          (e) The Borrowers shall prepay the Loans in accordance with the provisions of Section
6.13 hereof.




          (f) The Domestic Borrowers shall prepay the Domestic Loans in an amount equal to the Net
Proceeds received by a Domestic Loan Party on account of a Prepayment Event in the event that a
Cash Dominion Event then exists. The Canadian Borrower shall prepay the Canadian Loans in an
amount equal to the Net Proceeds received by a Canadian Loan Party on account of a Prepayment Event
in the event that a Cash Dominion Event then exists. Nothing in this Section 2.05(f)
shall be construed to constitute any Agent’s or any Lender’s consent to any Prepayment Event that
is not permitted by other provisions of this Agreement or the other Loan Documents.




          (g) Prepayments made pursuant to (i) Section 2.05(c), (ii) to the extent representing
funds on deposit in the Domestic Concentration Account, Section 2.05(e) and (iii) to the
extent the Net Proceeds received by a Domestic Loan Party from a Prepayment Event relating to a
Domestic Loan Party, Section 2.05(f), first, shall be applied ratably to the
Domestic L/C Borrowings and the Swing Line Loans made to the Domestic Borrowers, second,
shall be applied ratably to the outstanding Committed Domestic Loans, and third, the amount
remaining, if any, after the prepayment in full of all Domestic L/C Borrowings, Swing Line Loans
made to the Domestic Borrowers and Committed Domestic Loans outstanding at such time may be
retained by (or shall be returned to) the Domestic Borrowers for use in a manner not prohibited by
this Agreement.




          (h) Prepayments made pursuant to (i) Section 2.05(d), (ii) to the extent representing
funds on deposit in the Canadian Concentration Account, Section 2.05(e) and (iii) to the
extent the Net Proceeds received a Canadian Loan Party from a Prepayment Event relating to a
Canadian Loan Party, Section 2.05(f), first, shall be applied ratably to the
Canadian L/C Borrowings and the Swing Line Loans made to the Canadian Borrower, second,
shall be applied ratably to the outstanding Committed Canadian
Loans, and third the amount remaining, if any, after the prepayment in full of all
Canadian L/C Borrowings, Swing Line Loans made to the Canadian Borrower and Committed Canadian
Loans outstanding at such time may be retained by (or shall be returned to) the Canadian Borrower
for use in a manner not prohibited by this Agreement.




     2.06 Termination or Reduction of Commitments.



          (a) The Domestic Borrowers may, upon irrevocable notice from the Lead Borrower to the
Administrative Agent, terminate the Aggregate Domestic Commitments, the Domestic Letter of Credit
Sublimit or the Domestic Swing Line Sublimit or from time to time permanently reduce in part the
Aggregate Domestic Commitments, the Domestic Letter of Credit Sublimit or the Domestic Swing Line
Sublimit; provided that (i) any such notice shall be received by the Administrative Agent
not later than 11:00 a.m. three (3) Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof and (iii) the Domestic Borrowers shall not reduce (A) the
Aggregate Domestic Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Domestic Outstandings would exceed the Aggregate Domestic Commitments, (B) the
Domestic Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of
Domestic L/C Obligations (other than Domestic L/C Borrowings) not fully Cash Collateralized
hereunder would exceed the Domestic Letter of Credit Sublimit, and (C) the Domestic Swing Line
Sublimit if, after giving effect thereto, and to any concurrent




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payments hereunder, the Outstanding
Amount of Swing Line Loans made to the Domestic Borrowers hereunder would exceed the Domestic Swing
Line Sublimit.




          (b) The Canadian Borrower may, upon irrevocable notice from the Canadian Borrower to the
Canadian Agent, terminate the Aggregate Canadian Commitments, the Canadian Letter of Credit
Sublimit or the Canadian Swing Line Sublimit or from time to time permanently reduce in part the
Aggregate Canadian Commitments, the Canadian Letter of Credit Sublimit or the Canadian Swing Line
Sublimit; provided that (i) any such notice shall be received by the Canadian Agent not
later than 11:00 a.m. (Toronto time) three (3) Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of $2,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Canadian Borrower shall not reduce (A)
the Aggregate Canadian Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Canadian Outstandings would exceed the Aggregate Canadian
Commitments, (B) the Canadian Letter of Credit Sublimit if, after giving effect thereto, the
Outstanding Amount of Canadian L/C Obligations (other than Canadian L/C Borrowings) not fully Cash
Collateralized hereunder would exceed the Canadian Letter of Credit Sublimit, and (C) the Canadian
Swing Line Sublimit if, after giving effect thereto, and to any concurrent payments hereunder, the
Outstanding Amount of Swing Line Loans made to the Canadian Borrower hereunder would exceed the
Canadian Swing Line Sublimit.




          (c) If, after giving effect to any reduction of the Aggregate Domestic Commitments, the
Domestic Letter of Credit Sublimit or the Domestic Swing Line Sublimit exceeds the amount of the
Aggregate Domestic Commitments, such Domestic Letter of Credit Sublimit or Domestic Swing Line
Sublimit shall be automatically reduced by the amount of such excess.




          (d) If, after giving effect to any reduction of the Aggregate Canadian Commitments, the
Canadian Letter of Credit Sublimit or the Canadian Swing Line Sublimit exceeds the amount of the
Aggregate Canadian Commitments, such Canadian Letter of Credit Sublimit or Canadian Swing Line
Sublimit shall be automatically reduced by the amount of such excess.




          (e) The Administrative Agent or the Canadian Agent, as applicable, will promptly notify the
Domestic Lenders or the Canadian Lenders, as applicable, of any termination or reduction made
pursuant to this Section 2.06. Upon any reduction of the Aggregate Domestic Commitments,
the Domestic Commitment of each Domestic Lender shall be reduced by such Domestic Lender’s
Applicable Percentage of such reduction amount. Upon any reduction of the Aggregate Canadian
Commitments, the Canadian Commitment of each Canadian Lender shall be reduced by such Canadian
Lender’s Applicable Percentage of such reduction amount. All fees (including, without limitation,
Commitment Fees and Letter of Credit Fees) and interest in respect of the Aggregate Total
Commitments accrued until the
effective date of any termination of the Aggregate Total Commitments shall be paid on the
effective date of such termination.




     2.07 Repayment of Loans.



          (a) The Domestic Borrowers shall repay to the Administrative Agent, for the account of the
Domestic Lenders, on the Termination Date the aggregate principal amount of Committed Domestic
Loans outstanding on such date. To the extent not previously paid, the Domestic Borrowers shall
repay the outstanding balance of the Swing Line Loans made to the Domestic Borrowers on the
Termination Date.




          (b) The Canadian Borrower shall repay to the Canadian Agent, for the account of the Canadian
Lenders, on the Termination Date the aggregate principal amount of Committed Canadian Loans
outstanding on such date. To the extent not previously paid, the Canadian Borrower shall repay the
outstanding balance of the Swing Line Loans made to the Canadian Borrower on the Termination Date.




     2.08 Interest.



          (a) Subject to the provisions of Section 2.08(b) below, (i) each LIBO Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the LIBO Rate for such Interest Period plus the Applicable Margin; (ii) each
BA Equivalent Loan




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shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the BA Rate for such Interest Period plus the
Applicable Margin; (iii) each Domestic Prime Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Prime
Rate plus the Applicable Margin; (iv) each Canadian Prime Rate Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Canadian Prime Rate plus the Applicable Margin; (v) each Swing Line Loan made
to the Domestic Borrowers shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Prime Rate plus the Applicable
Margin; and (vi) each Swing Line Loan made to the Canadian Borrower shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Canadian Prime Rate plus the Applicable Margin.




          (b) (i) If any amount payable under any Loan Document is not paid when due (after giving
effect to any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




               (ii) If any other Event of Default exists, then the Administrative Agent may, and upon
the request of the Required Lenders shall, notify the Lead Borrower that all outstanding
Obligations shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate and thereafter such Loans and L/C Obligations shall bear interest at the
Default Rate to the fullest extent permitted by applicable Laws for so long as such or any other
Event of Default is continuing.



               (iii) Accrued and unpaid interest on past due amounts (including interest on past due interest
to the fullest extent permitted by applicable Laws) shall be due and payable upon demand.



          (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein. Interest hereunder
shall be due and payable in accordance with the terms hereof before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law.



     2.09 Fees. In addition to certain fees described in subsections (i) and
(j) of Section 2.03:




          (a) Commitment Fee.





          (i) The Domestic Borrowers shall pay to the Administrative Agent, for the account of
each Domestic Lender in accordance with its Applicable Percentage, a commitment fee (the
“Domestic Commitment Fee”) based upon the average daily Total Domestic Outstandings
(excluding the principal amount of Swing Line Loans made to the Domestic Borrowers) equal to
the percentages set forth in the grid below times the actual daily amount by
which the Aggregate Domestic Commitments exceed the sum of (i) the Outstanding Amount
of the Domestic Loans and (ii) the Outstanding Amount of the Domestic L/C Obligations.



	 	 	 	 	 
	Average Daily Total Domestic Outstandings	 	Domestic Commitment Fee	 
	Less than 33% of Aggregate Domestic Commitments
	 	 	1.00	%
	Greater than or equal to 33% but less than 66% of
Aggregate Domestic Commitments
	 	 	0.75	%
	Greater than or equal to 66% of Aggregate Domestic
Commitments
	 	 	0.50	%






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The Domestic Commitment Fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV is
not met, and shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter, commencing with the first such date to occur after the Closing Date, and
on the last day of the Availability Period. The Domestic Commitment Fee, expressed as a
percentage, shall be calculated on the Closing Date and thereafter, the Domestic Commitment
Fee shall be calculated on each Commitment Fee Adjustment Date for the most recent calendar
quarter immediately preceding such Commitment Fee Adjustment Date.




          (ii) The Canadian Borrower shall pay to the Canadian Agent, for the account of
each Canadian Lender in accordance with its Applicable Percentage, a commitment fee (the
“Canadian Commitment Fee”) based upon the average daily Total Canadian Outstandings
(excluding the principal amount of Swing Line Loans made to the Canadian Borrower) equal to
the percentages set forth in the grid below times the actual daily amount by which the
Aggregate Canadian Commitments exceed the sum of (i) the Outstanding Amount of the Canadian
Loans and (ii) the Outstanding Amount of the Canadian L/C Obligations.



	 	 	 	 	 
	Average Daily Total Canadian Outstandings	 	Canadian Commitment Fee	 
	Less than 33% of Aggregate Canadian Commitments
	 	 	1.00	%
	Greater than or equal to 33% but less than 66% of
Aggregate Canadian Commitments
	 	 	0.75	%
	Greater than or equal to 66% of Aggregate Canadian
Commitments
	 	 	0.50	%







The Canadian Commitment Fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV is
not met, and shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter, commencing with the first such date to occur after the Closing Date, and
on the last day of the Availability Period. The Canadian Commitment Fee, expressed as a
percentage, shall be calculated on the Closing Date and thereafter, the Canadian Commitment
Fee shall be calculated on each Commitment Fee Adjustment Date for the most recent calendar
quarter immediately preceding such Commitment Fee Adjustment Date.



          (b) Other Fees. The Borrowers shall pay to the Agents, the Canadian Agent and
the Arrangers for their own respective accounts fees in the amounts and at the times specified in
the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.




     2.10 Computation of Interest and Fees.



          (a) All computations of interest for Prime Rate Loans and BA Equivalent Loans shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid than if computed on the
basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.12(a), bear




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interest for one day. Each determination by the Administrative Agent or the
Canadian Agent, as applicable, of an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.




          (b) For the purposes of this Agreement, whenever interest to be paid hereunder is to be
calculated on the basis of a year of three hundred and sixty (360) days or any other period of time
that is less than a calendar year, the yearly rate of interest which the rate determined pursuant
to such calculation is equivalent is the rate so determined multiplied by the actual number of days
in the calendar year in which the same is to be ascertained and divided by either three hundred and
sixty (360) or such other period of time, as the case may be.




          (c) For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any
interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis
of a 360-day or any other period of time that is less than a calendar year, the yearly rate of
interest to which the rate used in such calculation is equivalent is the rate so used multiplied by
the actual number of days in the calendar year in which the same is to be ascertained and divided
by three hundred and sixty (360) or the number of days in such period, as applicable. The rates of
interest under this Agreement are nominal rates, and not effective rates or yields. The principle
of deemed reinvestment of interest does not apply to any interest calculation under this Agreement.




     2.11 Evidence of Debt.



          (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by the Administrative Agent (with respect to Domestic Credit Extensions) and the
Canadian Agent (with respect to Canadian Credit Extensions) (each, the “Loan Account”) in
the ordinary course of business. In addition, each Lender may record in such Lender’s internal
records, an appropriate notation evidencing the date and amount of each Loan from such Lender, each
payment and prepayment of principal of any such Loan, and each payment of interest, fees and other
amounts due in connection with the Obligations due to such Lender. The accounts or records
maintained by the Administrative Agent, the Canadian Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers
and the interest and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the Administrative Agent or the
Canadian Agent, as applicable, in respect of such matters, the accounts and records of the
Administrative Agent or the Canadian Agent, as applicable, shall control in the absence of manifest
error. Upon the request of any Domestic Lender made through the Administrative Agent (who shall
notify the Domestic Borrowers), or any Canadian Lender through the Canadian Agent (who shall notify
the Canadian Borrower), the applicable Borrowers shall execute and deliver to such Lender (through
the Administrative Agent or the Canadian Agent, as applicable) a Note, which shall evidence such
Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto. Any failure to so attach or endorse, or any error in doing so,
shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Obligations or the Canadian Liabilities, as applicable. Upon
receipt of an affidavit and indemnity of a Lender as to the loss, theft, destruction or mutilation
of such Lender’s Note and upon cancellation of such Note, the applicable Borrowers will issue, in
lieu thereof, a replacement Note in favor of such Lender, in the same principal amount thereof and
otherwise of like tenor (subject to adjustment in the case of any assignments of such Lender’s
Commitments).




          (b) In addition to the accounts and records referred to in Section 2.11(a), each
Lender and the Administrative Agent or, as applicable, the Canadian Agent, shall maintain in
accordance with its usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict
between the accounts and records maintained by the Administrative Agent or the Canadian Agent and
the accounts






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and records of any Lender in respect of such matters, the accounts and records of the
Administrative Agent or the Canadian Agent, as applicable, shall control in the absence of manifest
error.




     2.12 Payments Generally; Administrative Agent’s Clawback.



          (a) General. All payments to be made by the Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrowers hereunder shall be made, as applicable, to the
Administrative Agent, for the account of the respective Domestic Lenders to which such payment is
owed, at the Administrative Agent’s Office in Dollars and to the Canadian Agent, for the account of
the respective Canadian Lenders to which such payment is owed, at the Canadian Agent’s Office, in
each case, in immediately available funds not later than 2:00 p.m. on the date specified herein.
The Administrative Agent or the Canadian Agent, as applicable, will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office in accordance with the
provisions of Section 2.14. All payments received by the Administrative Agent or the
Canadian Agent after 2:00 p.m. shall, at the option of the Administrative Agent or the Canadian
Agent, as applicable, be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment (other than with respect to payment of a
LIBO Loan or a BA Equivalent Loan) to be made by the Borrowers shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.




          (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent or the Canadian Agent, as applicable, shall have received notice from a Lender
prior to the proposed date of any Committed Borrowing of LIBO Rate Loans or BA Equivalent Loans, as
applicable (or in the case of any Committed Borrowing of Prime Rate Loans, prior to 1:00 p.m. on
the date of such Committed Borrowing) that such Lender will not make available to the
Administrative Agent or the Canadian Agent, as applicable, such Lender’s share of such Committed
Borrowing, the Administrative Agent or the Canadian Agent, as applicable, may assume that such
Lender has made such share available on such date in accordance with Section 2.02 (or in
the case of a Committed Borrowing of Prime Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.02) and may, in
reliance upon such assumption, make available to the applicable Borrowers a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing
available to the Administrative Agent or the Canadian Agent, as applicable, then the applicable
Lender and the Domestic Borrowers severally agree with respect to Committed Domestic Loans, and the
Canadian Borrower severally agrees with respect to Committed Canadian Loans, to pay to the
Administrative Agent or the Canadian Agent, as applicable, forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the
date such amount is made available to such Borrowers to but excluding the date of payment to the
Administrative Agent or the Canadian Agent, as applicable, at (A) in the case of a payment to be
made by a Domestic Lender, 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, (B) in the case of a payment to be made by a Canadian Lender, the
greater of the Bank of Canada Overnight Rate with respect to payments due to the Canadian
Agent in Canadian Dollars and the Federal Funds Rate with respect to payments due to the Canadian
Agent in Dollars, and a rate determined by the Canadian Agent in accordance with banking industry
rules on interbank compensation plus any administrative processing or similar fees customarily
charged by the Canadian Agent in connection with the foregoing, (C) in the case of a payment to be
made by the Domestic Borrowers, the interest rate applicable to Domestic Prime Rate Loans and (D)
in the case of a payment to be made by the Canadian Borrower, the interest rate applicable to
Canadian Prime Rate Loans. If the applicable Borrowers and such Lender shall pay such interest to
the Administrative Agent





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or the Canadian Agent, as applicable, for the same or an overlapping period, the
Administrative Agent or the Canadian Agent, as applicable, shall promptly remit to such Borrowers
the amount of such interest paid by such Borrowers for such period. If such Lender pays its share
of the applicable Committed Borrowing to the Administrative Agent or the Canadian Agent, as
applicable, then the amount so paid shall constitute such Lender’s Committed Loan included in such
Committed Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the
Borrowers may have against a Lender that shall have failed to make such payment to the
Administrative Agent or the Canadian Agent, as applicable.




               (ii) Payments by Borrowers; Presumptions by Administrative Agent and Canadian
Agent. Unless the Administrative Agent or the Canadian Agent, as applicable, shall have
received notice from the Lead Borrower or the Canadian Borrower, as applicable, prior to the time
at which any payment is due to the Administrative Agent or the Canadian Agent, as applicable, for
the account of the Lenders or the L/C Issuer hereunder that the Borrowers will not make such
payment, the Administrative Agent or the Canadian Agent, as applicable, may assume that the
Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the
L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent or the
Canadian Agent, as applicable, forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to, as applicable,
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation, or the
Canadian Agent, the greater of the Bank of Canada Overnight Rate with respect to payments
due to the Canadian Agent in Canadian Dollars and the Federal Funds Rate with respect to payments
due to the Canadian Agent in Dollars, and a rate determined by the Canadian Agent in accordance
with banking rules on interbank compensation.



     A notice of the Administrative Agent or the Canadian Agent, as applicable, to any Lender or the
Lead Borrower with respect to any amount owing under this Section 2.12(b) shall be
conclusive, absent manifest error.



          (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent or the Canadian Agent, as applicable, funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article II, and such funds are
not made available to the Borrowers by the Administrative Agent or the Canadian Agent, as
applicable, because the conditions to the applicable Credit Extension set forth in Article
IV are not satisfied or waived in accordance with the terms hereof (subject to the provisions
of the last paragraph of Section 4.02 hereof), the Administrative Agent or the Canadian
Agent, as applicable, shall promptly return such funds (in like funds as received from such Lender)
to such Lender, without interest.




          (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of any
Lender to make any Committed Loan, to fund any such participation or to make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Committed Loan, to purchase its participation or to make its
payment under Section 10.04(c).




          (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
principal of or interest on any of the Committed Loans made by it, or the participations in L/C
Obligations or in Swing









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Line Loans held by it resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of such Committed Loans or participations and accrued interest
thereon greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (a) if a Domestic Lender, notify the Administrative Agent
of such fact, and if a Canadian Lender, notify the Canadian Agent of such fact, and (b) purchase
(for cash at face value) participations in the Committed Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other applicable Lenders, or make such other



adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably, provided that:




          (a) if any such participations or subparticipations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest; and




          (b) the provisions of this Section shall not be construed to apply to (x) any payment made by
any Loan Party pursuant to and in accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any
assignee or participant, other than to the Borrowers or any Subsidiary thereof (as to which the
provisions of this Section shall apply).




     Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



     2.14 Settlement Amongst Lenders.




     (a) The amount of each Lender’s Applicable Percentage of outstanding Loans (including
outstanding Swing Line Loans) shall be computed weekly (or more frequently in the
Administrative Agent’s discretion) and shall be adjusted upward or downward based on all
Loans (including Swing Line Loans) and repayments of Loans (including Swing Line Loans)
received by the Administrative Agent (with respect to Domestic Loans) or the Canadian Agent
(with respect to Canadian Loans) 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 or the Canadian Agent, as applicable.




     (b) The Administrative Agent shall deliver to each of the Domestic Lenders and the
Canadian Agent shall deliver to the Canadian Lenders, promptly after a Settlement Date a
summary statement of the amount of outstanding Committed Loans and Swing Line Loans for the
period and the amount of repayments received for the period. As reflected on the summary
statement, (i) the Administrative Agent or the Canadian Agent, as applicable, shall transfer
to each Lender its Applicable Percentage of repayments, and (ii) each Lender shall transfer
to the Administrative Agent or the Canadian Agent, as applicable (as provided below) or the
Administrative Agent or the Canadian Agent, as applicable, shall transfer to each Lender,
such amounts as are necessary to insure that, after giving effect to all such transfers, the
amount of Committed Loans made by each Lender shall be equal to such Lender’s Applicable
Percentage of all Committed Loans outstanding as of such Settlement Date. If the summary
statement requires transfers to be made to the Administrative Agent or the Canadian Agent,
as applicable, by the Lenders and is received prior to 1:00 p.m. on a Business Day, such
transfers shall be made in immediately available funds no later than 3:00 p.m. that day;
and, if received after 1:00 p.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 or the Canadian Agent, as
applicable. If and to the extent any Domestic Lender shall not



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have so made its transfer to the Administrative Agent, such Domestic 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. If and to the extent any Canadian Lender shall not have so made its transfer to
the Canadian Agent, such Canadian Lender agrees to pay to the Canadian 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 Canadian Agent equal to the greater of the greater of the
Bank of Canada Overnight Rate with respect to payments due to the Canadian Agent in
Canadian Dollars and the Federal Funds Rate with respect to payments due to the Canadian
Agent in Dollars, and a rate determined by the Canadian Agent in accordance with banking
industry rules on interbank compensation plus any administrative processing or similar fees
customarily charged by the Canadian Agent in connection with the foregoing.



     2.15 Increase in Commitments.



          (a) Request for Increase. Provided no Default then exists or would arise therefrom,
upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Lead
Borrower may request an increase in the Aggregate Canadian Commitments not exceeding $10,000,000
and/or Aggregate Domestic Commitments by an amount not exceeding $50,000,000; provided that the
aggregate total amount of all Commitment Increases shall not exceed $50,000,000 (each such
increase, a “Commitment Increase”); provided that (i) any such request for a
Commitment Increase shall be in a minimum amount of $25,000,000 (or not less than $10,000,000 in
the case of the Canadian Commitments), and (ii) the Lead Borrower may make a maximum of two (2)
such requests for a Commitment Increase. At the time of sending such request for a Commitment
Increase, the Lead Borrower (in consultation with the Administrative Agent) shall specify the time
period within which each applicable Lender is requested to respond (which shall in no event be less
than ten (10) Business Days from the date of delivery of such notice to the Lenders).




          (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its applicable Commitment and, if so,
whether by an amount equal to, greater than, or less than its Applicable Percentage of such
requested Commitment Increase (each Lender agreeing to increase its Commitment, an “Existing
Increasing Lender”). Any Lender not responding within such time period shall be deemed to have
declined to increase its Commitment.




          (c) Notification by Administrative Agent; Additional Commitment Lenders. The
Administrative Agent shall notify the Lead Borrower and each applicable Lender of the Lenders’
responses to each request made hereunder for a Commitment Increase. To achieve the full amount of
a requested Commitment Increase, to the extent that the existing applicable Lenders decline to
increase their Commitments, or decline to increase their Commitments to the amount requested by the
Lead Borrower, the Administrative Agent, in consultation with the Lead Borrower, will use its
reasonable efforts to arrange for other Eligible Assignees to become a Domestic Lender or Canadian
Lender, as applicable, hereunder and to issue commitments in an amount equal to the amount of the
increase in the Aggregate Total Commitments requested by the Lead Borrower and not accepted by the
existing applicable Lenders (and the Lead Borrower may also invite additional Eligible Assignees to
become Lenders) (each such Eligible Assignee issuing a commitment and becoming a Lender, an
“Additional Commitment Lender”), provided, however, that without the
consent of the Administrative Agent, at no time shall the Commitment of any Additional Commitment
Lender be less than $10,000,000.




          (d) Effective Date and Allocations. If the Aggregate Domestic Commitments or the
Aggregate Canadian Commitments are increased in accordance with this Section 2.15, the
Administrative




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Agent, in consultation with the Lead Borrower, shall determine the effective date
(the “Increase Effective Date”) and the final allocation of such Commitment Increase. The
Administrative Agent shall promptly notify the Lead Borrower and the Lenders of the final
allocation of such Commitment Increase and the Increase Effective Date and on the Increase
Effective Date (i) the Aggregate Domestic Commitments or Aggregate Canadian Commitments, as
applicable, and the Aggregate Total Commitments under, and for all purposes of, this Agreement
shall be increased by the aggregate amount of such Commitment Increase, and (ii) Schedule
2.01 shall be deemed modified, without further action, to reflect the revised Commitments and
Applicable Percentages of the Lenders.




          (e) Conditions to Effectiveness of Increase. As a condition precedent to such
Commitment Increase, (i) the Lead Borrower shall have delivered to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (A) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such Commitment Increase, and (B) in the
case of the Borrowers, certifying that, before and after giving effect to such Commitment Increase,
(1) the representations and warranties contained in Article V and the other Loan Documents
are true and correct in all material respects on and as of the Increase Effective Date, except to
the extent that such representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier date, and except that
for purposes of this Section 2.15, the representations and warranties contained in
subsections (a), (b) and (f) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a), (b) and (c), respectively, of Section
6.01 (if applicable); (ii) the Borrowers, the Administrative Agent, and any Additional
Commitment Lender shall have executed and delivered a joinder to the Loan Documents in such form as
the Administrative Agent shall reasonably require; (iii) the applicable Borrowers shall have paid
such fees and other compensation to the Existing Increasing Lenders and the Additional Commitment
Lenders as the Lead Borrower, the Administrative Agent and such Existing Increasing Lenders and
Additional Commitment Lenders shall agree; (iv) the Borrowers shall have paid such arrangement fees
to BAS and the Administrative Agent as the Lead Borrower, the Administrative Agent and BAS may
agree; (v) if reasonably requested by the Administrative Agent, the Borrowers shall deliver to the
Administrative Agent and the Lenders an opinion or opinions, in form and substance reasonably
satisfactory to the Administrative Agent, from counsel to the Borrowers and dated the Increase
Effective Date; (vi) the Borrowers, the Existing Increasing Lenders and the Additional Commitment
Lenders shall have delivered such other instruments, documents and agreements as the Administrative
Agent may reasonably have requested; and (vii) no Default exists. The Borrowers shall prepay any
Committed Domestic Loans or Committed Canadian Loans, as applicable, outstanding on the Increase
Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the
extent necessary to keep the outstanding Committed Domestic Loans or Committed Canadian Loans, as
applicable, ratable with any revised Applicable Percentages arising from any nonratable increase in
the Commitments under this Section 2.15. Upon each increase in the Commitments pursuant
to this Section, (a) each applicable Lender immediately prior to such increase will automatically
and without further act be deemed to have assigned to each Additional Commitment Lender in respect
of such increase, and each such Additional Commitment Lender will automatically and without further
act be deemed to have assumed, a portion of such applicable Lender’s participations hereunder in
outstanding Domestic Letters of Credit or Canadian Letters of Credit, as applicable, and Swing Line
Loans made to the applicable Borrowers such that, after giving effect to each such deemed
assignment and assumption of participations, the percentage of the aggregate outstanding (i)
participations hereunder in the applicable Letters of Credit and (ii) participations hereunder in
Swing Line Loans made to the applicable Borrowers held
by each applicable Lender (including each
such Additional Commitment Lender) will equal the percentage of the aggregate applicable
Commitments of all applicable Lenders represented by the applicable Commitment of such applicable
Lender and (b) if, on the date of such increase, there are any Committed Domestic Loans or
Committed Canadian Loans, as applicable, outstanding, such Committed Domestic Loans or Committed
Canadian Loans, as applicable, shall on or prior to the effectiveness of such Commitment Increase
be






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prepaid from the proceeds of additional Committed Domestic Loans or Committed Canadian Loans, as
applicable, made hereunder (reflecting such increase in applicable Commitments), which prepayment
shall be accompanied by accrued interest on the Committed Domestic Loans or Committed Canadian
Loans, as applicable, being prepaid and any costs incurred by any applicable Lender in accordance
with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum
borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this
Agreement shall not apply to the transactions effected pursuant to this Section.




          (f) Conflicting Provisions. This Section 2.15 shall supersede any provisions
in Sections 2.13 or 10.01 to the contrary.




     2.16 CFC Payments. Any references to Borrowers (in the context of payments, proceeds,
liabilities or Obligations), Commitments, Collateral, L/C Borrowings or Loans shall mean, in the
case of and as applied to the foregoing, with respect to any
Obligations of the Domestic Borrowers, only the Domestic Borrowers (or any of its Domestic
Subsidiaries and only for their own account), the Collateral that is property of Domestic
Borrowers, or L/C Borrowings or Loans constituting Obligations of Domestic Borrowers (or any of its
Domestic Subsidiaries), so that collections received from the Canadian Loan Parties and proceeds of
the Collateral that is property of the Canadian Loan Parties (or any other Canadian Loan Party)
shall be applied solely and exclusively to the payment of the Canadian Liabilities. All provisions
contained in any Loan Document or side letter shall be interpreted consistently with this
Section 2.16 to the extent possible, and where such other provisions conflict
with the provisions of this Section 2.16, the provisions this Section
2.16 shall govern.



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY;

APPOINTMENT OF LEAD BORROWER




     3.01 Taxes.



          (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Loan Parties hereunder or under any other Loan Document shall be made free and clear of and
without deduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
a Loan Party shall be required by applicable Law to deduct or withhold, or an Agent, the Canadian
Agent or a Lender shall be required to remit, any Indemnified Taxes (including any Other Taxes)
from such payments, then (i) the sum payable shall be increased as necessary so that after making
all required deductions, withholdings or remittances (including deductions, withholdings or
remittances applicable to additional sums payable under this Section), the applicable Credit Party
receives an amount equal to the sum it would have received had no such deductions, withholdings or
remittances been made, (ii) the Loan Parties shall make such deductions or withholdings and (iii)
the Loan Parties shall timely pay the full amount deducted or withheld to the relevant Governmental
Authority in accordance with applicable Law.




          (b) Payment of Other Taxes by the Loan Parties. Without limiting or duplicating the
provisions of subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable Law.




          (c) Indemnification by the Loan Parties. The Domestic Loan Parties shall indemnify
each Credit Party, and the Canadian Loan Parties shall indemnify each Canadian Credit Party, within
ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section 3.01) paid by such Credit Party, as the case may be, and any
penalties, interest and reasonable out-of-pocket expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Lead Borrower by a Lender or the L/C Issuer (with a copy to the
Administrative Agent or the Canadian Agent, as applicable), or by the Administrative Agent on its
own behalf or on behalf of a Domestic Credit Party,




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or by the Canadian Agent on its own behalf or on behalf of a Canadian Credit Party, shall be conclusive absent manifest error.




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




          (e) Status of Lenders. Any Lender or L/C Issuer that is entitled to an exemption
from, or reduction of, withholding tax under the law of the jurisdiction in which any Loan Party is
resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to
payments hereunder or under any other Loan Document shall deliver to the Lead Borrower (with a copy
to the Administrative Agent) or the Canadian Borrower (with a copy to the Canadian Agent), as
applicable, at the time or times prescribed by applicable Law or reasonably requested by the Lead
Borrower, the Administrative Agent, the Canadian Borrower or the Canadian Agent, such properly
completed and executed documentation prescribed by applicable Law as will permit such payments to be made
without withholding or at a reduced rate of withholding. Such delivery shall be required on the
Closing Date (or, in the case of an assignee, on the date of assignment) and on or before the date
such documentation expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent documentation so delivered or as may reasonably be requested by the Lead
Borrower, the Administrative Agent, the Canadian Borrower or the Canadian Agent. In addition, any
Lender, if requested by the Lead Borrower, the Administrative Agent, the Canadian Borrower or the
Canadian Agent, shall deliver such other documentation prescribed by applicable Law or reasonably
requested by the Lead Borrower, the Administrative Agent, the Canadian Borrower or the Canadian
Agent, as will enable the Lead Borrower, the Administrative Agent, the Canadian Borrower or the
Canadian Agent, to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.




     Without limiting the generality of the foregoing, in the event that any Loan Party is resident
for tax purposes in the United States, any Lender or L/C Issuer that is entitled to an exemption
from or reduction of, withholding tax shall deliver to the Lead Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender or L/C Issuer becomes a Lender or L/C Issuer under this Agreement (and
from time to time thereafter upon the request of the Lead Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:




          (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a party,




          (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




          (iii) in the case of a Lender or L/C Issuer that is entitled to claim the benefits of
the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to
the effect that such Foreign Lender or L/C Issuer is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Domestic Borrowers
within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” related to the Domestic Borrowers, as described in section 881(c)(3)(C) of the
Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or




          (iv) any other form prescribed by applicable Law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable Law to permit the Lead
Borrower to determine the withholding or deduction required to be made.



          (f) Treatment of Certain Refunds. If any Credit Party determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Loan Party or with respect to which any Loan Party have paid additional amounts
pursuant to this




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Section 3.01, it shall pay to the applicable Loan Party an amount equal
to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by
such Loan Party under this Section 3.01 with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the applicable Credit Party and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Loan Parties, upon the request of the Administrative Agent or
the Canadian Agent, as applicable, such Lender or the L/C Issuer, agree to repay the amount paid
over to the Loan Parties (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the applicable Credit Party in the event such Credit Party is required
to repay such refund to such Governmental Authority. This subsection shall not be construed to
require any Credit Party to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Loan Parties or any other Person.




          (g) Sale or Transfer. If a Lender or Participant claims exemption from, or reduction
of, withholding tax and such Lender or Participant sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of Loan Parties to such Lender or Participant,
such Lender or Participant agrees to notify the Administrative Agent (or, in the case of a sale of
a participation interest, the Lender granting the participation) of the percentage amount in which
it is no longer the beneficial owner of Obligations of Loan Parties to such Lender. To the extent
of such percentage amount, the Administrative Agent will treat such Lender’s or such Participant’s documentation provided
pursuant to subsections (d) or (e) of this Section 3.01 as no longer valid. With respect
to such percentage amount, such Participant or Assignee may provide new documentation, pursuant to
subsections (d) or (e) of this Section 3.01, as applicable.




     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund LIBO Rate Loans or, in the case of Canadian Lenders only, BA
Equivalent Loans, as applicable, or to determine or charge interest rates based upon the LIBO Rate
or the BA Rate, as applicable, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Lead Borrower through the
Administrative Agent, any obligation of such Lender to make or continue LIBO Rate Loans or, in the
case of Canadian Lenders only, BA Equivalent Loans, as applicable, or to convert Domestic Prime
Rate Loans to LIBO Rate Loans or Canadian Prime Rate Loans to BA Rate Loans, as applicable, shall
be suspended until such Lender notifies the Administrative Agent and the Lead Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the
applicable Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all LIBO Rate Loans of such Lender to Domestic Prime Rate Loans
or Canadian Prime Rate Loans, as applicable, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such LIBO Rate Loans. Upon any
such prepayment or conversion, the applicable Borrowers shall also pay accrued interest on the
amount so prepaid or converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason
in connection with any request for a LIBO Rate Loan or a BA Equivalent Loan, or a conversion to or
continuation thereof that (a) with respect to LIBO Rate Loans only, Dollar deposits are not being
offered to banks in the London interbank market for the applicable amount and Interest Period of
such LIBO Rate Loan, (b) with respect to BA Equivalent Loans only, there is no market for Bankers
Acceptances, (c) adequate and reasonable means do not exist for determining the LIBO Rate or the BA
Rate for any requested Interest Period with respect to a proposed LIBO Rate Loan or BA Equivalent
Loan, or (d) the LIBO Rate or the BA Rate for any requested Interest Period with respect to a
proposed LIBO Rate Loan or BA Equivalent Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent (if with respect



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to LIBO Rate Loans made to a Domestic Borrower) will promptly so notify the Lead Borrower and each Domestic Lender or
the Canadian Agent (if with respect to LIBO Rate Loans or BA Equivalent Loans made to the Canadian
Borrower) will promptly so notify the Canadian Borrower and each Canadian Lender. Thereafter, the
obligation of the Lenders to make or maintain LIBO Rate Loans or of the Canadian Lenders to make or
maintain BA Equivalent Loans, as applicable, shall be suspended until the Administrative Agent or
the Canadian Agent, as applicable (but in either case upon the instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, the Lead Borrower may revoke any pending request
for a Committed Borrowing of, conversion to or continuation of LIBO Rate Loans made to a Domestic
Borrower or the Canadian Borrower may revoke any pending request for a Committed Borrowing of,
conversion to or continuation of LIBO Rate Loans or BA Equivalent Loans, as applicable, made to the
Canadian Borrower, as applicable, or, failing that, will be deemed to have converted such request
into either a request for a Committed Domestic Borrowing of Domestic Prime Rate Loans in the amount
specified therein, or a request for a Committed Canadian Borrowing of Canadian Prime Rate Loans in
the amount specified therein, as applicable.



     3.04 Increased Costs; Reserves on LIBO Rate Loans.



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





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




          (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any LIBO Rate Loan made by it, or change the basis of taxation of payments to such Lender or
the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or the L/C Issuer); or




          (iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or LIBO Rate Loans or BA Equivalent
Loans made by such Lender or any Letter of Credit or participation
therein; and the result of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any LIBO Rate Loan or BA Equivalent Loan (or of maintaining its obligation to make
any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or
to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer and delivery of the certificate contemplated by
Section 3.04(c), the applicable Borrowers will pay to such Lender or the L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as
the case may be, for such additional costs incurred or reduction suffered.




          (b) Capital Requirements. If any Lender or the L/C Issuer determines that any
Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has had, or
would have, the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital
or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time upon delivery of the certificate contemplated
by Section 3.04(c), the applicable Borrowers will pay




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to such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company, as the case may be, such additional amount or
amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
holding company, as the case may be, for any such reduction suffered.




          (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Lead Borrower shall be conclusive absent manifest error. The applicable Borrowers
shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.




          (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not
constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
provided that the applicable Borrower shall not be required to compensate a Lender or the
L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased
costs incurred or reductions suffered more than six (6) months prior to the date that such Lender
or the L/C Issuer, as the case may be, notifies the Lead Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the six (6)-month period referred to above shall be extended to
include the period of retroactive effect thereof).




     (e) Reserves on LIBO Rate Loans. The applicable Borrowers shall pay to each Lender,
as long as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each LIBO Rate Loan equal to
the actual costs of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be due and payable on
each date on which interest is payable on such Loan, provided that, the Lead Borrower shall
have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of
such additional interest from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable ten (10) days from receipt of such notice.



     3.05 Compensation for Losses. Upon demand of any Domestic Lender (with a copy to the
Administrative Agent) or any Canadian Lender (with a copy to the Canadian Agent) from time to time,
each Borrower shall promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:




     (a) any continuation, conversion, payment or prepayment of any LIBO Rate Loan or
BA Equivalent Loan made to such Borrower on a day other than the last day of the Interest
Period for such LIBO Rate Loan or BA Equivalent Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);




     (b) any failure by such Borrower, to the extent it is a Domestic Borrower (for a reason
other than the failure of such Domestic Lender to make a Domestic Loan) to prepay, borrow,
continue or convert any LIBO Rate Loan on the date or in the amount notified by the Lead
Borrower;




     (c) any failure by such Borrower, to the extent it is the Canadian Borrower (for a
reason other than the failure of such Canadian Lender to make a Canadian Loan) to prepay,
borrow, continue or convert any LIBO Rate Loan or any BA Equivalent Loan made to such
Borrower on the date or in the amount notified by the Canadian Borrower;




     (d) any assignment of a LIBO Rate Loan made to such Borrower on a day other than the
last day of the Interest Period therefor as a result of a request by the Lead Borrower (if
such



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Borrower is a Domestic Borrower) or the Canadian Borrower (if such Borrower is the
Canadian Borrower) pursuant to Section 10.13; or




     (e) any assignment of a BA Equivalent Loan made to such Borrower on a day other than
the last day of the Interest Period therefor as a result of a request by the Canadian
Borrower pursuant to Section 10.13;


including any loss of anticipated profits and any loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The applicable Borrower shall also pay any customary
and reasonable administrative fees charged by such Lender in connection with the foregoing.




     For purposes of calculating amounts payable by a Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each LIBO Rate Loan made by it at the LIBO
Rate for such Loan by a matching deposit or other borrowing in the London interbank market for a
comparable amount and for a comparable period, whether or not such LIBO Rate Loan was in fact so
funded. A certificate of any Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section and setting forth in reasonable detail the manner in
which such amount or amounts was determined shall be delivered to the Lead Borrower.



     3.06 Mitigation Obligations; Replacement of Lenders.



          (a) Designation of a Different Lending Office. If any Lender or L/C Issuer requests
compensation under Section 3.04, or the Borrowers are required to pay any additional
amount to any Lender or L/C Issuer or any Governmental Authority for the account of any Lender or
L/C Issuer pursuant to Section 3.01, or if any Lender or L/C Issuer gives a notice
pursuant to Section 3.02, then such Lender or L/C Issuer shall use reasonable efforts to
designate a different Lending Office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender or L/C Issuer, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in
the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable,
and (ii) in each case, would not subject such Lender or L/C Issuer to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender or L/C Issuer. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender or L/C Issuer in
connection with any such designation or assignment.




          (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Loan Party is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrowers may
replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the obligations of each Loan Party under this Article
III shall survive termination of the Aggregate Total Commitments and repayment of
all other Obligations hereunder.




     3.08 Designation of Lead Borrower as Borrowers’ Agent.



          (a) Each Domestic Borrower hereby irrevocably designates and appoints each of the Parent and
the Lead Borrower as such Domestic Borrower’s agent to obtain Credit Extensions, the proceeds of
which shall be available to each Domestic Borrower for such uses as are permitted under this
Agreement. As the disclosed principal for its agent, each Domestic Borrower shall be obligated to
each Credit Party on account of Credit Extensions so made as if made directly by the applicable
Credit Party to such Domestic Borrower, notwithstanding the manner by which such Credit Extensions
are recorded on the books and records of the Lead Borrower and of any other Domestic Borrower. In
addition, each




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Domestic Loan Party other than the Domestic Borrowers hereby irrevocably designates
and appoints each of the Parent and the Lead Borrower as such Loan Party’s agent to represent such
Loan Party in all respects under this Agreement and the other Loan Documents.




          (b) The Canadian Borrower hereby irrevocably designates and appoints the Parent as the
Canadian Borrower’s agent to obtain Credit Extensions, the proceeds of which shall be available to
the Canadian Borrower for such uses as are permitted under this Agreement. In addition, each
Canadian Loan Party other than the Canadian Borrower hereby irrevocably designates and appoints
each of the Parent and the Canadian Borrower as such Canadian Loan Party’s agent to represent such
Loan Party in all respects under this Agreement and the other Loan Documents.




          (c) Each Borrower recognizes that credit available to it hereunder is in excess of and on
better terms than it otherwise could obtain on and for its own account and that one of the reasons
therefor is its joining in the applicable credit facility contemplated herein with all other
Borrowers. Consequently, subject to the terms and conditions of this Agreement, each Borrower
hereby assumes, guarantees payment and performance of, and agrees to discharge all Obligations of
each of the other Borrowers; provided that, notwithstanding anything herein or in any of
the other Loan Documents to the contrary, the Canadian Loan Parties shall be liable only for the
Canadian Liabilities.




          (d) The Lead Borrower shall act as a conduit for each Borrower (including itself, as a
“Borrower”) on whose behalf the Lead Borrower has requested a Credit Extension. Neither the
Administrative Agent nor any other Credit Party shall have any obligation to see to the application
of such proceeds therefrom.




ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:




     (a) The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif”
via e-mail) (followed promptly by originals) unless otherwise specified, and each properly
executed by a Responsible Officer of the signing Loan Party (if applicable):




     (i) executed counterparts of this Agreement;




     (ii) a Note executed by each applicable Borrower in favor of each Lender
requesting a Note;




     (iii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party evidencing (A)
the authority of each Loan Party to enter into this Agreement and the other Loan
Documents to which such Loan Party is a party and (B) the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party;




     (iv) copies of each Loan Party’s certificate or articles of incorporation and
bylaws (or equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such
other customary functionally equivalent certificates, to the extent available in the
applicable jurisdiction) from such Loan Party’s jurisdiction of organization and
from each jurisdiction where such Loan Party’s ownership, lease or operation of
properties or the conduct of its business requires such qualification, except to the
extent that failure to so qualify in such jurisdiction could not reasonably be
expected to have a Material Adverse Effect;



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     (v) a favorable opinion of (x) Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to the Domestic Loan Parties, addressed to the Administrative Agent
and each Domestic Lender, as to customary matters concerning the Domestic Loan
Parties and the Loan Documents; and (y) Fraser Milner Casgrain LLP and McInnes
Cooper LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent
and each Canadian Lender, as to customary matters concerning the Canadian Loan
Parties and the Loan Documents;




     (vi) a certificate signed by a Responsible Officer of the Lead Borrower,
satisfactory in form and substance to the Agents, certifying (A) that the conditions
specified in Sections 4.02(a) and 4.02(b) have been satisfied, (B)
either that (1) no consents, licenses or approvals are required in connection with
the execution, delivery and performance by any Loan Party and the validity against
such Loan Party of the Loan Documents to which it is a party, or (2) that all such
consents, licenses and approvals have been obtained and are in full force and
effect, (C) that, as of the Closing Date after giving effect to the transactions
contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D)
that this Agreement and all Obligations satisfy the requirements of section 3.3 of
the Senior Note Indenture;




     (vii) intentionally omitted;




     (viii) except as set forth in the post-Closing Letter, evidence that all
insurance required to be maintained pursuant to the Loan Documents and all
endorsements in favor of the Administrative Agent or the Canadian Agent, as
applicable, required under the Loan Documents have been obtained and are in effect;




     (ix) a payoff letter from the agent for the lenders under the Existing Credit
Agreement reasonably satisfactory in form and substance to the Agents evidencing
that the Existing Credit Agreement has been or concurrently with the Closing Date is
being terminated, all obligations thereunder are being paid in full (except to the
extent expressly set forth therein), and all Liens securing obligations under the
Existing Credit Agreement have been, or concurrently with the Closing Date are
being, released;




     (x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and
copies of certificates evidencing any stock being pledged under the Pledge Agreement
on the Closing Date (to the extent required by the Pledge Agreement), together with
copies of undated stock powers executed in blank, each duly executed by the
applicable Loan Parties (originals of which are being delivered to the US Term Loan
Agent subject to the Intercreditor Agreement);




     (xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto,
each duly executed by the applicable Loan Parties;




     (xii) the Intercreditor Agreement;




     (xiii) (A) a written report regarding the results of a commercial finance
examination of the Loan Parties, which shall be reasonably satisfactory to the
Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and
their management reasonably requested by any Agent, in each case with results
reasonably satisfactory to the Agents;




     (xiv) results of searches or other evidence reasonably satisfactory to the
Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the
Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan
Parties, except for Permitted Encumbrances and Liens for which termination
statements and releases are being tendered concurrently with the initial extension
of credit hereunder or other arrangements reasonably satisfactory to the
Co-Collateral Agents for the delivery of such termination statements and releases,
satisfactions and discharges have been made; and



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     (xv) (A) all UCC financing statements and PPSA financing statements, required
by Law or reasonably requested by the Agents or the Canadian Agent, as applicable,
to be filed, registered or recorded to create, perfect or protect the Liens intended
to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements
required to be delivered on or prior to the Closing Date pursuant to Section
6.13 hereof.




                    (b) After giving effect to (i) the first funding under the Loans (if any) on the
Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by
the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of
Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the
Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables
being paid currently and the Loan Parties’ expenses and liabilities being paid in the
ordinary course of business and without acceleration of sales, Domestic Availability shall
be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.




                    (c) The Administrative Agent and the Canadian Agent shall have received a Borrowing
Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and
executed by a Responsible Officer of the Lead Borrower or the Parent.




                    (d) The Co-Collateral Agents shall be reasonably satisfied with the results of the
inventory appraisal conducted by Great American Group dated April, 2009.




                    (e) The Administrative Agent shall have received, (i) and the Agents shall be
reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as
at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of
income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for
the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the
period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of
the Fiscal Quarter ending October 31, 2010, which shall include an Availability model,
Americas Consolidated income statement, balance sheet, and statement of cash flow, by month,
each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the
Loan Parties’ then current practices.




                    (f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit
Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s
commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance
reasonably satisfactory to the Agents and received, or substantially simultaneously with the
initial Credit Extension under this Agreement shall receive, gross proceeds of the Term
Loans in a minimum amount of $125,000,000.




                    (g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all
parties thereto and (ii) copies of all material documents and agreements duly executed by
all parties thereto with respect to the Term Loans and such agreements described in this
clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009
relating thereto or otherwise in form and substance reasonably acceptable to the Agents.




                    (h) All necessary consents and approvals to the transactions contemplated hereby shall
have been obtained.




                    (i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers
on or before the Closing Date shall have been paid in full, and all fees required to be paid
by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.



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     (j) The Borrowers shall have paid all reasonable and documented fees, charges and
disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers
hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such
fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such
counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimates shall not
thereafter preclude a final settling of accounts between the Borrowers and any Agent or
Arranger).




     (k) The Agents shall have received all documentation and other information required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules
and regulations including, without limitation, the Patriot Act.




     (l) Since June 8, 2009, no material changes in governmental regulations or policies
affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.




     (m) intentionally omitted.




     (n) The Closing Date shall have occurred on or before July 31, 2009. The
Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and
such notice shall be conclusive and binding on the Loan Parties.


Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender (other than an Agent or the Canadian Agent) that has signed this
Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be Consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.




     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a
Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA
Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following
conditions precedent:




     (a) The representations and warranties of the Borrowers and each other Loan Party
contained in Article V or any other Loan Document, shall be true and correct in all
material respects (or, in the case of any representation and warranty qualified by
materiality, in all respects) on and as of the date of such Credit Extension, except to the
extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects as of such earlier date,
and except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a), (b) and (f) of Section 5.05 shall be
deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a),
(b) and (d), respectively, of Section 6.01.




     (b) No Default shall exist, or would result from such proposed Credit Extension or from
the application of the proceeds thereof.




     (c) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable,
the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension
in accordance with the requirements hereof.



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Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a
conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate
Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as
applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the
Canadian Borrower, as applicable, that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension. The conditions set forth in this Section 4.02 are
for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise
direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this
Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of
all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all
L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of
Credit whenever made or issued in accordance with the provisions of this Agreement, and which,
notwithstanding the failure of the Loan Parties to comply with the provisions of this Article
IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable;
provided that, the making of any such Loans or the issuance of any Letters of Credit in the
event the provisions of this Article IV are not complied with shall not be
deemed to be a modification or waiver by any Credit Party of the provisions of this Article
IV on any future occasion or a waiver of any rights of the Credit Parties as a
result of any such failure to comply.




ARTICLE V

REPRESENTATIONS AND WARRANTIES




     To induce the Credit Parties to enter into this Agreement and to make Loans and to issue Letters of
Credit hereunder, each Loan Party and each Americas Subsidiary (and, in the case of Section
5.06, 5.09, 5.11 and 5.16, for each Subsidiary of the Parent)
represents and warrants to the Administrative Agent, the L/C Issuer and the Lenders that:



     5.01 Existence, Qualification and Power. Each Loan Party and each Americas Subsidiary
(a) is a corporation, limited liability company, unlimited liability company, partnership or
limited partnership, duly organized or formed, validly existing and, where applicable, in good
standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses, permits, authorizations,
consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is
duly qualified and is licensed and, where applicable, in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the conduct of its business
requires such qualification or license; except in each case referred to in clause (a) (in the case
of any Americas Subsidiary that is not a Loan Party), (b)(i) or (c), to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect. Schedule 5.01
annexed hereto sets forth, in each case as of the Closing Date, each Loan Party’s name as it
appears in official filings in its state or province of incorporation or organization, its state or
province of incorporation or organization, organization type, organization number, if any, issued
by its state of incorporation or organization (in the case of each Domestic Loan Party), and its
federal employer identification number (if any).



     5.02 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is a party, has been duly authorized by all
necessary corporate or other organizational action, and does not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach,
termination, or contravention of, or constitute a default under, or require any payment to be made
under (i) any Material Contract or any Material Indebtedness to which such Person is a party or
affecting such Person or the properties of such Person or any of its Subsidiaries (other than any
Loan Document) or (ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or



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its property is subject; (c) result in or require the creation of any Lien upon any asset of any Loan Party (other than Liens in favor of the
Administrative Agent or the Canadian Agent, as applicable, under the Security Documents and other
than in accordance with the Intercreditor Agreement); or (d) violate any applicable Law.




     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority, and no
material approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any other Person is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document
to which such Person is a party, except for (a) the perfection or maintenance of the Liens created
under the Security Documents or (b) such as have been obtained or made and are in full force and
effect.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of each Loan Party that is party thereto, enforceable against
such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.



     5.05 Financial Statements; No Material Adverse Effect.



          (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present in all material respects the financial condition of the Parent and its Subsidiaries
as of the date thereof and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) to the extent required by GAAP show all Material Indebtedness and other
liabilities, direct or contingent, of the Parent and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.




          (b) The unaudited Consolidated balance sheet of the Parent and its Subsidiaries dated April
30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and
cash flows for the Fiscal Quarter ended on that date, in each case, (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present in all materials respects the financial condition of the
Parent and its Subsidiaries as of the date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments. Schedule 5.05 sets forth all Material Indebtedness of the Loan Parties and
their Consolidated Subsidiaries (other than any intercompany Indebtedness) outstanding as of the
Closing Date (after giving effect to all the transactions occurring on the Closing Date).




          (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.




          (d) To the knowledge of the Lead Borrower, no Internal Control Event exists or has occurred
since the date of the Audited Financial Statements that has resulted in or could reasonably be
expected to result in a misstatement in any material respect, in any financial information
delivered or to be delivered to the Administrative Agent or the Lenders, of (i) covenant compliance
calculations provided hereunder or (ii) the assets, liabilities, financial condition or results of
operations of the Parent and the Americas Subsidiaries on an Americas Consolidated basis.




          (e) Intentionally Omitted.




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          (f) The Americas Consolidated forecasted balance sheet and statements of income and cash flows
of the Parent and Americas Subsidiaries delivered pursuant to Section 4.01 and (if
applicable) Section 6.01 were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in light of the conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, the Loan Parties’ reasonable
estimate of their future financial performance (it being understood that such forecasted financial
information is subject to significant uncertainties and contingencies, many of which are beyond the
control of the Loan Parties, that no assurance is given that any particular forecasts will be
realized, that actual results may differ and that such differences may be material).




     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Loan Parties threatened in writing, at law, in equity, in arbitration or
before any Governmental Authority, against any Loan Party or any of its Subsidiaries or against any
of its properties or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby to occur on the Closing Date, or (b)
either individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.



     5.07 No Default. No Loan Party or any Americas Subsidiary is in default under or with
respect to any Material Contract or any Material Indebtedness (exclusive of the Term Loan Documents
or the Senior Note Indenture). No Default has occurred and is continuing or would result on the
Closing Date from the consummation of the transactions contemplated by this Agreement or any other
Loan Document.



     5.08 Ownership of Property; Liens.



          (a) Each of the Loan Parties and each Americas Subsidiary thereof has good record and
marketable title in fee simple to or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in title or failure to have
such title or other interest as could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Each of the Loan Parties and each Americas Subsidiary has good
title to, valid leasehold interests in, or valid licenses or other rights to use all personal
property and assets material to the ordinary conduct of its business, except where failure to have
such title, interest, license or other right could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




          (b) Schedule 5.08(b)(1) sets forth the address (including street address and state,
province or territory and postal or zip code) of all Real Estate that is owned by the Loan Parties
as of the Closing Date, together with a list of the holders of any mortgage thereon as of the
Closing Date. Schedule 5.08(b)(2) sets forth the address (including street address and
state or province or territory) of all locations leased by the Loan Parties as of the Closing Date.




          (c) The property of each Loan Party and each of the Americas Subsidiaries is subject to no
Liens, other than Permitted Encumbrances.




     5.09 Environmental Compliance.



          (a) No Loan Party or any Subsidiary (i) is in violation of any Environmental Law or has not
obtained or, to its knowledge, has not complied with any Environmental Permit required under any
Environmental Law, (ii) is subject to any Environmental Liability that remains outstanding, or
(iii) has received written notice of any claim alleging Environmental Liability by any of them,
except, in each case, as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.




          (b) Except, in each case, as would not reasonably be expected to have a Material Adverse
Effect: (i) none of the properties currently owned by any Loan Party or any Subsidiary, or to the
knowledge of any Loan Party, leased by any Loan Party or any Subsidiary, is listed or, to the
knowledge of any Loan Party, proposed for listing on the NPL or any analogous foreign, state,
provincial, territorial,




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municipal or local list; (ii) there are no underground storage tanks or
any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are
being treated, stored or disposed of except in compliance with applicable Environmental Laws on any
property currently owned by any Loan Party or any Subsidiary in violation of applicable
Environmental Law and (iii) to the knowledge of the Loan Parties, Hazardous Materials have not been
released, discharged or disposed on any property currently owned by any Loan Party or any
Subsidiary in violation of applicable Environmental Law.




          (c) Except, in each case, as would not reasonably be expected to have a Material Adverse
Effect: (i) no Loan Party or any Subsidiary is undertaking, either individually or together with
other “potentially responsible parties” (as that term is defined in CERCLA), any investigation,
assessment, or remedial or response action to remove Hazardous Materials at any location, either
voluntarily or pursuant to the order of any Governmental Authority or the requirements of any
Environmental Law.




     5.10 Insurance. The properties of the Loan Parties and their Americas Subsidiaries are
insured with financially sound and reputable insurance companies which are not Affiliates of the
Loan Parties, in such amounts, with such deductibles and covering such risks (including, without
limitation, workmen’s compensation, public liability, business interruption and property damage
insurance) as are customarily carried by companies engaged in similar businesses and owning similar
properties in localities where the Loan Parties or the applicable Americas Subsidiary operates.
Schedule 5.10 sets forth a summary of all insurance maintained by or on behalf of the Loan
Parties as of the Closing Date. As of the Closing Date, each insurance policy listed on
Schedule 5.10 is in full force and effect and all premiums in respect thereof that are due
and payable have been paid.



     5.11 Taxes. The Loan Parties and their Subsidiaries have filed all material federal,
state, provincial, local and other material tax returns and reports required to be filed, and have
paid all material federal, state, provincial, territorial, municipal, local and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings for which adequate reserves have been provided in accordance
with GAAP, as to which taxes no Lien has been filed and which contest effectively suspends the
collection of the contested obligation and the enforcement of any Lien securing such obligation.
There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made,
have a Material Adverse Effect. No Loan Party or any Subsidiary thereof is a party to any tax
sharing agreement, other than any tax sharing agreement between or among such Loan Party (or any
Subsidiary thereof) and any Affiliate of such Loan Party (or any Subsidiary thereof).



     5.12 Plans.



          (a) Except as would not reasonably be expected to result in a Material Adverse Effect: (i)
each Plan in respect of employees of any Domestic Loan Party is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or state Laws; (ii)
each Plan in respect of employees of any Domestic Loan Party that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the knowledge of the Lead Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification; (iii) the Domestic Loan Parties and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan in respect
of employees of any Domestic Loan Party; and (iv) no Lien imposed under the Code or ERISA exists or
is likely to arise on account of any Plan in respect of employees of any Domestic Loan Party.




          (b) There has been no prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan in respect of employees of any Domestic Loan Party that has resulted
or could reasonably be expected to result in a Material Adverse Effect.




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          (c) Except as would not reasonably be expected to result in a Material Adverse Effect: (i) no
ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded
Pension Liability; (iii) neither any Domestic Loan Party nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither any Domestic
Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject
to Sections 4069 or 4212(c) of ERISA.




          (d) As of the Closing Date, no Plan in respect of employees of any Canadian Loan Party or any
of their Related Parties is a pension plan or subject to any pension benefits legislation. As of
the Closing Date, no Canadian Loan Party has any Canadian Pension Plan.




     5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Loan Parties have no direct
Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, which
Schedule sets forth, in each case as of the Closing Date, the legal name, jurisdiction of
incorporation or formation and authorized Equity Interests of each such Subsidiary. All of the
outstanding Equity Interests owned by a Loan Party in such Subsidiaries have been validly issued,
are fully paid and non-assessable and are owned by a Loan Party in the amounts specified on Part
(a) of Schedule 5.13 free and clear of all Liens except for Permitted Encumbrances. As
of the Closing Date, the Loan Parties have no equity investments in any other corporation or entity
other than (i) Investments described in clause (g) and (h) of the definition of “Permitted
Investments” and (ii) those specifically disclosed in Part (b) of Schedule 5.13. All of
the outstanding Equity Interests in the Loan Parties (other than the Parent) have been validly
issued, and are fully paid and non-assessable and, as of the Closing Date, are owned in the amounts
specified on Part (c) of Schedule 5.13 free and clear of all Liens except for Permitted
Encumbrances.



     5.14 Margin Regulations; Investment Company Act.



          (a) None of the proceeds of the Credit Extensions shall be used directly or indirectly for any
purpose that would entail a violation of Regulations T, U, or X issued by the FRB.




          (b) None of the Loan Parties is, or is required to be registered as an “investment company”
under the Investment Company Act of 1940.




     5.15 Disclosure. No financial statement, certificate or other factual written information
(excluding projections, forward-looking information and information of a general economic or
general industry nature) furnished by or on behalf of any Loan Party to any Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished, and taken as a whole) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading; provided that, with
respect to projected financial information, the Loan Parties represent only that such information
was prepared in good faith based upon assumptions believed to be reasonable at the time (it being
understood that such projected financial information is subject to significant uncertainties and
contingencies, many of which are beyond the control of the Loan Parties, that no assurance is given
that any particular projections will be realized, that actual results may differ and that such
differences may be material).



     5.16 Compliance with Laws. Each of the Loan Parties and each Subsidiary is in compliance
in all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently



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conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.




     5.17 Intellectual Property; Licenses, Etc. Except, in each case, as would not reasonably
be expected to have a Material Adverse Effect, the Loan Parties and their Americas Subsidiaries
own, or possess the right to use, all of the Intellectual Property that is reasonably necessary for
the operation of their respective businesses as currently conducted, without violation of the
rights of any other Person. To the knowledge of the Lead Borrower, no slogan or other advertising
device, product, process, method, substance, part or other material now employed, by any Loan Party
infringes upon any rights held by any other Person, except, in each case, as would not reasonably
be expected to have a Material Adverse Effect. No claim or litigation against any Loan Party
alleging any such infringement is pending or, to the knowledge of the Lead Borrower, threatened in
writing, which, either individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.



     5.18 Labor Matters.



     There are no strikes, lockouts, slowdowns or other labor disputes against any Loan Party or
any Americas Subsidiary thereof pending or, to the knowledge of any Loan Party, threatened that, in
any case, could reasonably be expected to have a Material Adverse Effect. The hours worked by, and
payments made to employees of, the Loan Parties comply with the Fair Labor Standards Act and any
other applicable federal, state, provincial, territorial, municipal, local or foreign Law dealing
with such matters except to the extent that any such violation could not reasonably be expected to
have a Material Adverse Effect. No Loan Party or any of its Americas Subsidiaries has incurred any
liability or obligation under the Worker Adjustment and Retraining Act or similar federal, state,
provincial, local or foreign Law dealing with such matters that, in any case, could reasonably be
expected to have a Material Adverse Effect. All payments due from any Loan Party and its Americas
Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and
employee health and welfare insurance and other benefits, have been paid or properly accrued in
accordance with GAAP as a liability on the books of such Loan Party except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect. As of the
Closing Date, no Loan Party or any Americas Subsidiary is a party to or bound by any collective
bargaining agreement. There are no representation proceedings pending or, to any Loan Party’s
knowledge, threatened to be filed with the National Labor Relations Board or other applicable
Governmental Authority, and no labor organization or group of employees of any Loan Party or any
Subsidiary has made a pending demand for recognition that, in any case, could reasonably be
expected to have a Material Adverse Effect. There are no complaints, unfair labor practice charges,
grievances, arbitrations, unfair employment practices charges or any other claims or complaints
against any Loan Party or any Americas Subsidiary pending or, to the knowledge of any Loan Party,
threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in
connection with, or otherwise relating to the employment or termination of employment of any
employee of any Loan Party or any of its Americas Subsidiaries that, in any case, could reasonably
be expected to have a Material Adverse Effect. The consummation of the transactions contemplated by
the Loan Documents will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which any Loan Party or any of its
Americas Subsidiaries is bound.



     5.19 Security Documents.



     The Security Documents create in favor of the Administrative Agent (for the benefit of itself
and the other Credit Parties) or the Canadian Agent (for the benefit of itself and the other
Canadian Credit Parties), as applicable, a legal, valid, continuing and enforceable security
interest in the Collateral, and the Security Documents constitute, or will upon the filing of
financing statements or other requisite registrations and recordations (including, with respect to
IP Collateral, the filing and recordation of the



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Intellectual Property Security Agreement with the United States Patent and Trademark Office, United States Copyright Office, Canadian Intellectual
Property Office and any substitute or successor agency) and/or the obtaining of “control”, in each
case with respect to the relevant Collateral as required under the applicable UCC or similar
legislation of any jurisdiction, including, without limitation, the PPSA and the Civil Code of
Quebec, the creation of a perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties thereunder in such Collateral that may be perfected in the United
States or Canada by filing, recording or registering a financing statement or analogous document
(and, in the case of IP Collateral and any other Intellectual Property, the filing and recordation
of the Intellectual Property Security Agreement with the United States Patent and Trademark Office
and the United States Copyright Office or the Canadian Intellectual Property Office) or, to the
extent required by the Loan Documents (it being understood that subsequent recordings in the United
States Patent and Trademark Office, United States Copyright Office, Canadian Intellectual Property
Office or a substitute or successor agency may be necessary to perfect a Lien on Intellectual
Property acquired, register or applied for after the date hereof). Notwithstanding anything to the
contrary herein, the Loan Parties shall have no obligation to prefect Liens on any IP Collateral or other Intellectual Property in any jurisdiction
outside the United States of America or Canada.




     5.20 Solvency.



     After giving effect to the transactions contemplated by this Agreement, and before and after
giving effect to each Credit Extension, the Loan Parties, on a consolidated basis, are Solvent. No
transfer of property has been or will be made by any Loan Party and no obligation has been or will
be incurred by any Loan Party in connection with the transactions contemplated by this Agreement or
the other Loan Documents with the intent to hinder, delay, or defraud either present or future
creditors of any Loan Party.



     5.21 Deposit Accounts; Credit Card Arrangements.



          (a) Annexed hereto as Schedule 5.21(a) is a list of all DDAs maintained by the Loan
Parties as of the Closing Date, which Schedule includes, with respect to each DDA and in each case
as of the Closing Date: (i) the name of the depository; (ii) the account number(s) maintained with
such depository; and (iii) the identification of each Blocked Account Bank.




          (b) Annexed hereto as Schedule 5.21(b) is a list of all arrangements as of the Closing
Date to which any Loan Party is a party with respect to the processing and/or payment to such Loan
Party of the proceeds of any credit card charges and debit card charges for sales made by such Loan
Party.




     5.22 Brokers. Except as disclosed on Schedule 5.22 no broker or finder brought about
the obtaining, making or closing of the Loans or transactions contemplated by the Loan Documents,
and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s
or brokerage fees in connection therewith.



     5.23 Customer and Trade Relations. There exists no actual or, to the knowledge of any
Loan Party, threatened, termination or cancellation of, or any material adverse modification or
change in the business relationship of any Loan Party with any supplier material to its operations
except to the extent that any of the foregoing could not reasonably be expected to have a Material
Adverse Effect.



     5.24 Material Contracts. Schedule 5.24 sets forth a list of all Material
Contracts to which any Loan Party is a party as of the Closing Date (other than the Loan Documents
and the Term Loan Documents). The Loan Parties have delivered true, correct and complete copies of
such Material Contracts to the Administrative Agent on or before the date hereof. The Loan Parties
are not in breach or in default in any material respect of or under any Material Contract
(exclusive of the Term Loan Documents or the Senior Note Indenture) and have not received any
notice of the intention of any other party thereto to terminate any Material Contract.




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     5.25 Casualty. Neither the businesses nor the properties of any Loan Party or any of its
Americas Subsidiaries are affected by any fire, explosion, accident, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by
insurance) that, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



ARTICLE VI

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied (other than contingent indemnification Obligations for which a
claim has not then been asserted), or any Letter of Credit shall remain outstanding, the Loan
Parties shall, and shall, (except in the case of the covenants set forth in Sections  6.01,
 6.02, and  6.03), cause each Americas Subsidiary and, in the case of the covenants
set forth in Sections 6.08 and 6.16, cause each of its Subsidiaries to:



     6.01 Financial Statements. Deliver to the Administrative Agent (for distribution to each
Lender):




     (a) within ninety (90) days after the end of each Fiscal Year of the Parent, (i) a
Consolidated balance sheet of the Parent and its Subsidiaries as at the end of such Fiscal
Year, and the related Consolidated statements of income or operations, Shareholders’ Equity
and cash flows for such Fiscal Year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all prepared in accordance with GAAP, such
Consolidated statements to be audited and accompanied by a report and opinion of a
Registered Public Accounting Firm of nationally recognized standing or otherwise reasonably
acceptable to the Administrative Agent, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the
scope of such audit, and (ii) an Americas Consolidated and consolidating balance sheet of
the Parent and the Americas Subsidiaries as at the end of such Fiscal Year, and the related
Americas Consolidated and consolidating statements of income or operations of the Parent and
the Americas Subsidiaries, and Americas Consolidated cash flows for such Fiscal Year,
setting forth in each case (in the case of clause (ii), to the extent practicable) in
comparative form the figures for the previous Fiscal Year, such consolidating statements of
the Parent and its Americas Subsidiaries to be certified by a Responsible Officer of the
Lead Borrower or the Parent to the effect that such statements are fairly stated in all
material respects when considered in relation to the Americas Consolidated financial
statements of the Parent and its Americas Subsidiaries;




     (b) within forty-five (45) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Parent, (i) a Consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such Fiscal Quarter, and the related Consolidated
statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal
Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) an Americas
Consolidated and consolidating balance sheet of the Parent and the Americas Subsidiaries as
at the end of such Fiscal Quarter, and the related Americas Consolidated and consolidating
statements of income or operations and Shareholders’ Equity of the Parent and the Americas
Subsidiaries and (commencing with the first such Fiscal Quarter which ends after delivery of
the first 10-K annual report of the Parent following the Closing Date) an Americas
Consolidated cash flows for such Fiscal Quarter and (to the extent practicable) for the
portion of the Parent’s Fiscal Year then ended, setting forth in each case (to the extent
practicable) in comparative form the figures for (A) such period set forth in the
projections delivered pursuant to Section  6.01(d) hereof, (B) the



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corresponding Fiscal Quarter of the previous Fiscal Year and (C) the corresponding portion of the previous
Fiscal Year, all in reasonable detail, such Americas Consolidated statements to be certified
by a Responsible Officer of the Lead Borrower or the Parent as fairly presenting in all
material respects the financial condition, results of operations, Shareholders’ Equity and
cash flows of the Parent and the Americas Subsidiaries as of the end of such Fiscal Quarter
in accordance with GAAP, subject only to normal year-end audit adjustments and the absence
of footnotes and such consolidating statements of the Parent and its Americas Subsidiaries
to be certified by a Responsible Officer of the Lead Borrower to the effect that such
statements are fairly stated in all material respects when considered in relation to the
Americas Consolidated financial statements of the Parent and the Americas Subsidiaries;




     (c) within thirty (30) days after the end of each of the Fiscal Months of each Fiscal
Year of the Parent (commencing with the first such Fiscal Month which occurs after the first
full six (6) months following the Closing Date), an Americas Consolidated and consolidating
balance sheet of the Parent and the Americas Subsidiaries as at the end of such Fiscal
Month, and the related Americas Consolidated and consolidating statements of income or
operations, Shareholders’ Equity and Americas Consolidated cash flows for such Fiscal Month,
and (to the extent practicable) for the portion of the Parent’s Fiscal Year then ended,
setting forth in each case (to the extent practicable) in comparative form the figures for
(A) such period set forth in the projections delivered pursuant to Section  6.01(d)
hereof, (B) the corresponding Fiscal Month of the previous Fiscal Year and (C) the
corresponding portion of the previous Fiscal Year, all in reasonable detail and prepared in
accordance with GAAP, to the extent applicable, subject to normal year end audit adjustments
and in the absence of footnotes, and in any event, in a manner consistent with the Parent’s
accounting practices, such Americas Consolidated statements to be certified by a Responsible
Officer of the Lead Borrower or the Parent as fairly presenting in all material respects the
financial condition, results of operations, Shareholders’ Equity and cash flows of the
Parent and the Americas Subsidiaries as of the end of such Fiscal Month and such
consolidating statements to be certified by a Responsible Officer of the Lead Borrower or
the Parent to the effect that such statements are fairly stated in all material respects
when considered in relation to the Americas Consolidated financial statements of the Parent
the Americas Subsidiaries; and




     (d) within thirty (30) days after the end of each Fiscal Year of the Parent, forecasts
prepared by management of the Parent and Lead Borrower, in form reasonably satisfactory to
the Agents, of Americas Consolidated balance sheets, statements of income or operations and
cash flows, and Availability projections of the Parent and the Americas Subsidiaries on a
monthly basis for the immediately following Fiscal Year (including the Fiscal Year in which
the Maturity Date occurs), and promptly after they become available, any significant
revisions to such forecast with respect to such Fiscal Year.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent (for distribution
to each Lender) and, with respect to items (b), (c) and (f) below, the Co-Collateral Agents:




     (a) intentionally omitted;




     (b) concurrently with the delivery of the financial statements referred to in
Sections  6.01(a),  (b) and  (c), (i) a duly completed Compliance
Certificate signed by a Responsible Officer of the Lead Borrower or the Parent (to be
furnished even if a Covenant Compliance Event is not then in effect) and (ii) a copy of
management’s discussion and analysis with respect to such financial statements. In the
event of any change in GAAP used in the preparation of such



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financial statements, the Lead Borrower or the Parent shall also provide a statement of reconciliation conforming such
financial statements to GAAP;




     (c) until the first month following delivery of the first 10-K annual report of the
Parent following the Closing Date, on the fifteenth (15th) day of each Fiscal
Month (or, if such day is not a Business Day, on the next succeeding Business Day), and
thereafter, on the tenth (10th) day of each Fiscal Month (or, if such day is not
a Business Day, on the next succeeding Business Day) (or more frequently at the option of
the Lead Borrower), a Borrowing Base Certificate showing the Domestic Borrowing Base and the
Canadian Borrowing Base, as of the close of business as of the last day of the immediately
preceding Fiscal Month; provided that, upon the occurrence and during the
continuance of an Accelerated Borrowing Base Delivery Event, such Borrowing Base Certificate
(which shall include information relating to the Inventory
only to the extent then available) shall be delivered on Wednesday of each week (or, if
any Wednesday is not a Business Day, on the next succeeding Business Day), as of the close
of business on the immediately preceding Saturday;




     (d) promptly upon receipt, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee of the board of
directors) of any Loan Party by its Registered Public Accounting Firm in connection with the
accounts or books of the Loan Parties or any Subsidiary, or any audit of any of them,
including, without limitation, specifying any Internal Control Event;




     (e) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report which any Loan Party files with the SEC and copies of
all annual, regular, periodic and special reports and registration statements which any Loan
Party files with the SEC under Sections 13 or 15(d) of the Securities Exchange Act of 1934
or with any national or foreign securities exchange or applicable Governmental Authority,
and in any case not otherwise required to be delivered to the Administrative Agent pursuant
hereto;




     (f) the financial and collateral reports described on Schedule 6.02 hereto, no
later than the times set forth in such Schedule, provided that certain of the
reports listed on Schedule 6.02 may not be required if such delivery is not required
by all of the Agents, and, if applicable, the Canadian Agent;




     (g) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party pursuant to the terms of the Senior Note
Indenture (or any other indenture relating to Material Indebtedness) or the US Term Loan
Credit Agreement or the Euro Term Loan Credit Agreement and not otherwise required to be
furnished to the Lenders pursuant to Section  6.01 or any other clause of this
Section  6.02;




     (h) within thirty (30) days after the end of each Fiscal Year of the Loan Parties, a
report summarizing the insurance coverage (specifying type, amount and carrier) in effect
for each Loan Party and its Americas Subsidiaries and containing such additional information
as the Administrative Agent, Canadian Agent, any Co-Collateral Agent, or any Lender through
the Administrative Agent, may reasonably specify;




     (i) promptly, and in any event within five (5) Business Days after receipt thereof by
any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence
received from any Governmental Authority (including, without limitation, the SEC (or
comparable agency in any applicable non-U.S. jurisdiction)) concerning any proceeding with,
or investigation or possible investigation or other inquiry by such Governmental Authority
regarding financial or



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other operational results of any Loan Party or any Subsidiary thereof
or any other matter which could reasonably be expected to have a Material Adverse Effect;
and




     (j) promptly, such additional information regarding the business affairs, financial
condition or operations of any Loan Party or any Americas Subsidiary, or compliance with the
terms of the Loan Documents, as the Administrative Agent, Canadian Agent, any Co-Collateral
Agent, or any Lender (through the Administrative Agent or the Canadian Agent, as applicable)
may from time to time reasonably request.


Documents required to be delivered pursuant to Section  6.01(a) or
 (b) or Section 6.02(c) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Parent posts such documents, or
provides a link thereto on the Parent’s website on the Internet at the website address listed on
Schedule  10.02; or (ii) on which such documents are posted on the Parent’s
behalf on an Internet or intranet website, if any, to which each Lender and Agent has access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that: the Lead Borrower shall deliver paper copies of such documents to any Agent
or Lender that requests the Lead Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by such Agent or such Lender. No Agent shall have any
obligation to request the delivery or to maintain copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Loan Parties with any such
request for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents




     The Loan Parties hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Loan Parties or their securities)
(each, a “Public Lender”). The Loan Parties hereby agree that so long as any Loan Party is
the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a
private offering they will use commercially reasonable efforts to identify that portion of the
Borrower Materials that may be distributed to the Public Lenders and that (w) the Lead Borrower
shall use commercially reasonable efforts to provide that such Borrower Materials shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Loan
Parties shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer
and the Lenders to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the Loan Parties or
their securities for purposes of all applicable securities Laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set
forth in Section  10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Investor.”



     6.03 Notices. Promptly, and in any event within five (5) Business Days after any
Responsible Officer of any Loan Party obtains knowledge thereof, notify the Administrative Agent
(and the Co-Collateral Agents in the case of (h), (i) or (j), below) of:




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



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     (b) any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect;




     (c) the occurrence of any ERISA Event;




     (d) any material change in accounting policies or financial reporting practices by any
Loan Party;




     (e) any change in the Parent’s senior executive officers;




     (f) the discharge by any Loan Party of its present Registered Public Accounting Firm or
any withdrawal or resignation by such Registered Public Accounting Firm;




     (g) any collective bargaining agreement to which a Loan Party becomes a party;




     (h) the filing of any Lien for unpaid Taxes against any Loan Party in excess of
$500,000;




     (i) any casualty or other insured damage to any material portion of the Collateral or
the commencement of any action or proceeding for the taking of any interest in a material
portion of the Collateral under power of eminent domain or by condemnation or similar
proceeding or if any material portion of the Collateral is damaged or destroyed; and




     (j) any failure by any Loan Party to pay rent at (i) five (5%) or more of such Loan
Party’s locations, (ii) any location which is a distribution center or warehouse, or (iii)
any of such Loan Party’s locations if such failure continues for more than ten (10) days
following the day on which such rent first came due and, in any such case, such failure
would be reasonably likely to result in a Material Adverse Effect.


Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Lead Borrower or the Parent setting forth details of the occurrence
referred to therein and stating what action the Lead Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to Section  6.03(a) shall describe with
reasonable particularity the provisions of this Agreement and any other Loan Document that have
been breached.




     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable,
all its obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, (b) all lawful claims
(including, without limitation, claims of landlords, warehousemen, customs brokers, and carriers)
which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness and the other provisions of Section 7.07, to the extent
applicable, except, in each case, where (a) (i) the validity or amount thereof is being contested
in good faith by appropriate proceedings, (ii) such Loan Party has set aside on its books adequate
reserves with respect thereto in accordance with GAAP, (iii) such contest effectively suspends
collection of the contested obligation and enforcement of any Lien securing such obligation, and
(iv) no Lien has been filed with respect thereto or (b) the failure to pay or discharge the same
could not reasonably be expected to result in a Material Adverse Effect. Nothing contained herein
shall be deemed to limit the rights of the Agents with respect to establishing or modifying
Reserves in manner permitted by this Agreement.



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     6.05 Preservation of Existence, Etc.



          (a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization or formation except (i) in a
transaction permitted by Section  7.04 or  7.05 or (ii) in the case of any Americas
Subsidiary that is not a Loan Party, to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.




          (b) Take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except (i) to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect or (ii)
pursuant to a transaction permitted by Section  7.04 or  7.05.




          (c) Preserve or renew all of its Intellectual Property, except (i) to the extent such
Intellectual Property is no longer used or useful in the conduct of the business of such Loan
Party, (ii) pursuant to a transaction permitted by Section  7.04 or  7.05 or (iii)
to the extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect.




     6.06 Maintenance of Properties. Maintain, preserve and protect all of its material properties
and Equipment necessary in the operation of its business in good working order and condition,
ordinary wear and tear and casualty or condemnation events excepted, and make all necessary repairs
thereto and renewals and replacements thereof, except in each case where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.



     6.07 Maintenance of Insurance.



          (a) Maintain with financially sound and reputable insurance companies reasonably acceptable to
the Agents (which insurance companies are not Affiliates of the Loan Parties), insurance with
respect to its properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business and operating in the same or similar
locations or as is required by applicable Law, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons and as are reasonably acceptable to the
Agents.




          (b) In each case except as set forth in the post-Closing Letter: Fire and extended coverage
policies maintained with respect to any Collateral shall name the Administrative Agent or the
Canadian Agent, as applicable, as a loss payee and shall be endorsed or otherwise amended to
include (i) a non-contributing mortgage clause (regarding improvements to real property) and
lenders’ loss payable clause (regarding personal property), in form and substance satisfactory to
the Agents, which endorsements or amendments shall provide that the insurer shall pay all proceeds
otherwise payable to the Loan Parties under the policies directly to the Administrative Agent or
the Canadian Agent, as applicable, (ii) a provision to the effect that none of the Loan Parties,
Credit Parties or any other Person shall be a co-insurer and (iii) such other provisions as the
Agents and the Canadian Agent may reasonably require from time to time to protect the interests of
the Credit Parties. Commercial general liability policies shall be endorsed to name the
Administrative Agent or the Canadian Agent, as applicable, as an additional insured. Business
interruption policies shall name the Administrative Agent or the Canadian Agent, as applicable, as
a loss payee and shall be endorsed or amended to include (i) a provision that, from and after the
Closing Date, the insurer shall pay all proceeds otherwise payable to the Loan Parties under the
policies directly to the Administrative Agent or the Canadian Agent, as applicable (subject to the
rights of the US Term Loan Agent, the Euro Term Loan Agent and the Term Loan Collateral Agent and
as described in the Intercreditor Agreement), (provided that unless a Cash Dominion Event
then exists, the Administrative and/or Canadian Agent shall promptly remit the proceeds to the Lead
Borrower or as the
Lead Borrower may direct), (ii) a provision to the effect that none of the Loan Parties, the
Agents, the Canadian Agent or any other party shall be a co-insurer and (iii) such other provisions
as the Agents or, if applicable, the Canadian Agent, may reasonably require from time to time to
protect the interests of the Credit Parties. Each such policy referred to in this Section
 6.07(b) shall also provide that it shall not be canceled, modified or not renewed (i) by
reason of nonpayment of premium except upon not less than




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thirty (30) days prior written notice
thereof by the insurer to the Administrative Agent or the Canadian Agent, as applicable, (giving
such Person the right to cure defaults in the payment of premiums) or (ii) for any other reason
except upon not less than thirty (30) days prior written notice thereof by the insurer to the
Administrative Agent or the Canadian Agent, as applicable. The Lead Borrower shall deliver to the
Agents, and the Canadian Borrower shall deliver to the Canadian Agent, on or prior to the date of
the cancellation or expiration of any such policy of insurance, or modification materially reducing
the scope or amount of coverage of such policies of insurance, a copy of any applicable renewal or
replacement insurance certificate.




          (c) None of the Credit Parties, or their agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained under this Section
 6.07. Each Loan Party shall look solely to its insurance companies or any other parties other
than the Credit Parties for the recovery of such loss or damage and such insurance companies shall
have no rights of subrogation against any Credit Party or its agents or employees. If, however,
the insurance policies do not provide waiver of subrogation rights against such parties, as
required above, then the Loan Parties hereby agree, to the extent permitted by law, to waive their
right of recovery, if any, against the Credit Parties and their agents and employees. The
designation of any form, type or amount of insurance coverage by the any Credit Party under this
Section  6.07 shall in no event be deemed a representation, warranty or advice by such
Credit Party that such insurance is adequate for the purposes of the business of the Loan Parties
or the protection of their properties.




          (d) Maintain for themselves and their Americas Subsidiaries, a Directors and Officers
insurance policy, and a “Blanket Crime” policy including employee dishonesty, forgery or
alteration, theft, disappearance and destruction, robbery and safe burglary, property, and computer
fraud coverage with responsible companies in such amounts as are customarily carried by business
entities engaged in similar businesses similarly situated, and will upon request by any Agent,
furnish the Administrative Agent certificates evidencing renewal of each such policy.




     6.08 Compliance with Laws. Comply, and cause each Subsidiary to comply, with the requirements
of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a)(i) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves have been set aside and maintained by the
Loan Parties in accordance with GAAP; and (ii) such contest effectively suspends enforcement of
the contested Laws, or (b) the failure to comply therewith could not reasonably be expected to have
a Material Adverse Effect. Nothing contained herein shall be deemed to limit the rights of the
Agents or the Canadian Agent with respect to establishing or modifying Reserves in a manner
permitted by this Agreement.



     6.09 Books and Records.



     (i) Maintain proper books of record and account, in which entries full, true and correct in
all material respects and in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the Loan Parties or such
Americas Subsidiary, as the case may be; and (ii) maintain such books of record and account in
material conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Loan Parties or such Subsidiary, as the case may be.



     6.10 Inspection Rights.



          (a) Permit representatives and independent contractors of the Co-Collateral Agents (acting in
consultation with the Administrative Agent) to visit and inspect any of its properties, to examine
its corporate, financial and operating records, and insurance policies, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and (in the presence of a Responsible Officer of the Parent or the Lead Borrower)
Registered Public Accounting




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Firm, all at the expense of the Loan Parties and at such reasonable
times during normal business hours
and as often as may be reasonably desired, upon reasonable advance notice to the Lead
Borrower; provided, however, that when an Event of Default exists the Co-Collateral Agents
(acting in consultation with the Administrative Agent) (or any of their representatives or
independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time
during normal business hours and without advance notice.




          (b) Upon the request of any Co-Collateral Agent (acting in consultation with the
Administrative Agent) after reasonable prior notice, permit such Co-Collateral Agent (acting in
consultation with the Administrative Agent) or professionals (including investment bankers,
consultants, accountants, lawyers and appraisers) retained by the Administrative Agent to conduct
appraisals, commercial finance examinations and other evaluations, including, without limitation,
of (i) the Lead Borrower’s practices in the computation of the Domestic Borrowing Base and the
Canadian Borrower’s practices in the computation of the Canadian Borrowing Base and (ii) the assets
included in the Domestic Borrowing Base and the Canadian Borrowing Base, respectively, and related
financial information such as, but not limited to, sales, gross margins, payables, accruals and
reserves. Subject to the following sentence, the Loan Parties shall pay the reasonable and
documented out-of-pocket fees and expenses of any of the Administrative Agent and the Co-Collateral
Agents and such professionals with respect to such evaluations and appraisals. Without limiting
the foregoing, the Loan Parties acknowledge that (A) subject to clause (B) below, the Co-Collateral
Agents (acting in consultation with the Administrative Agent) shall undertake up to two (2)
inventory appraisals and two (2) commercial finance examinations each Fiscal Year for each of the
Domestic Borrowers and the Canadian Loan Parties at the Loan Parties’ expense, and (B) if the
Domestic Borrowers fail to maintain Domestic Availability, for three (3) consecutive Business Days,
at least equal to the greater of (x) thirty percent (30%) of the Total Loan Cap and (y)
$45,000,000, the Co-Collateral Agents (acting in consultation with the Administrative Agent) shall
undertake up to three (3) inventory appraisals and three (3) commercial finance examinations each
Fiscal Year for each of the Borrowing Base Parties at the Loan Parties’ expense. Notwithstanding
the foregoing, any Co-Collateral Agent (acting in consultation with the Administrative Agent) may
cause additional appraisals and commercial finance examinations to be undertaken (i) as it in its
Permitted Discretion deems necessary or appropriate, at its own expense or, (ii) if required by
applicable Law or if a Default shall have occurred and be continuing, at the expense of the Loan
Parties. In all events, any professional engaged to perform any evaluations, appraisals,
commercial finance examinations or other services pursuant to this clause (b) shall be retained by
the Administrative Agent and no other Person.




          (c) Notwithstanding anything to the contrary in this Section  6.10, none of the Parent
or any of its Subsidiaries will be required to disclose, permit the inspection, examination or
making of extracts, or discussion of, any documents, information or other matter that (i)
constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect
of which disclosure to the Agents, the Canadian Agent, any Lender (or any of their representatives)
is then prohibited by Law or any agreement binding on the Parent or any of its Subsidiaries or
(iii) is subject to attorney-client or similar privilege or constitutes attorney work-product.




     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions only (a) to refinance
Indebtedness of the Parent and its Subsidiaries under the Existing Credit Agreement, (b) to finance
transaction fees and expenses related hereto, (c) to finance the acquisition of working capital
assets of the Loan Parties, including the purchase of Inventory and Equipment, in each case, in the
ordinary course of business, (d) to finance Capital Expenditures of the Loan Parties, and (e) for
other general corporate purposes of the Loan Parties, in each case to the extent not prohibited
under applicable Law and the Loan Documents.



     6.12 Additional Loan Parties.



          (a) Notify the Administrative Agent promptly after any Person becomes a Domestic Subsidiary
that is a Wholly Owned Subsidiary of any Domestic Loan Party (other than any Immaterial





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Subsidiary), and promptly thereafter (and in any event within thirty (30) days or such longer
period as the Agents may agree), (a) cause any such Domestic Subsidiary that is a Wholly Owned
Subsidiary (other than any Immaterial Subsidiary) to (i) become a Domestic Borrower or Guarantor by
executing and
delivering to the Administrative Agent a Joinder Agreement, and, in the case of a Guarantor, a
Facility Guaranty (or a counterpart or supplement thereto), (ii) grant a Lien to the Administrative
Agent on such Person’s assets to the extent required by the Security Documents, and (iii) deliver
to the Administrative Agent documents of the types referred to in clauses  (iii),  (iv),  (xiv) and
 (xv) of Section  4.01(a) and, if requested by the Administrative Agent, customary opinions
of counsel to such Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in clause  (a)), and (b) if any Equity
Interests or Indebtedness of such Person are owned by any Domestic Loan Party, such Domestic Loan
Party shall pledge such Equity Interests and promissory notes evidencing such Indebtedness (if any)
(except that, if such Subsidiary is a CFC, the Equity Interests of such Subsidiary will not be
required to be pledged), in the manner and format required by the Pledge Agreement; provided
that, no Equity Interests of any Foreign Subsidiary which is not a Canadian Loan Party shall be
required to be pledged.




          (b) Notify the Canadian Agent promptly after any Person becomes a Canadian Subsidiary that is
a Wholly Owned Subsidiary of any Canadian Loan Party (other than any Immaterial Subsidiary), and
promptly thereafter (and in any event within thirty (30) days or such longer period as the Canadian
Agent may agree), (a) cause any such Canadian Subsidiary that is a Wholly Owned Subsidiary (other
than any Immaterial Subsidiary) to (i) become a Guarantor of the Canadian Liabilities by executing
and delivering to the Canadian Agent a Joinder Agreement and a Facility Guaranty (or a counterpart
or supplement thereto), (ii) grant a Lien to the Canadian Agent on such Person’s assets to secure
the Canadian Liabilities by executing and delivering to the Canadian Agent Canadian Security
Documents, to the extent required by the Security Documents, and (iii) deliver to the Canadian
Agent documents of the types referred to in clauses  (iii) and  (iv) of Section  4.01(a)
and, if requested by the Canadian Agent, customary opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause  (a)), and (b) if any Equity Interests or Indebtedness of such
Person are owned by any Canadian Loan Party, such Canadian Loan Party shall pledge such Equity
Interests and promissory notes evidencing such Indebtedness (if any) (except that, if such
Subsidiary is a CFC, the Equity Interests of such Subsidiary will not be required to be pledged),
in the manner and format required by the Pledge Agreement; provided that, no Equity
Interests of any Foreign Subsidiary which is not a Canadian Loan Party, and no Equity Interests of
any unlimited company incorporated or amalgamated and existing under the laws of the Province of
Nova Scotia, shall be required to be pledged.




          (c) In no event shall compliance with this Section  6.12 waive or be deemed a waiver
or Consent to any transaction giving rise to the need to comply with this Section  6.12 if
such transaction was not otherwise expressly permitted by this Agreement or constitute or be deemed
to constitute, with respect to any Subsidiary, an approval of such Person as a Borrowing Base Party
or permit the inclusion of any acquired assets in the computation of the Domestic Borrowing Base or
the Canadian Borrowing Base, as applicable.




     6.13 Cash Management.



          (a) On or prior to the Closing Date or such later dates specified in the Post-Closing Letter:





          (i) deliver to the Administrative Agent (with respect to the Domestic Loan Parties) and
the Canadian Agent (with respect to the Canadian Loan Parties) copies of notifications
(each, a “Credit Card Notification”) substantially in the form attached hereto as
Exhibit H which have been executed on behalf of such Loan Party and delivered to
such Loan Party’s credit card clearinghouses and processors listed on Schedule
5.21(b); and




          (ii) enter into a Blocked Account Agreement with each Blocked Account Bank maintained
by the Loan Parties as of the Closing Date with respect to each DDA specified



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by the Agents (other than payroll and other specific DDAs as may be acceptable to the Agents) established
or maintained by any Loan Party as of the Closing Date with such Blocked Account Bank
(collectively, the “Blocked Accounts”).



          (b) Subject to the terms of the Post-Closing Letter, the Loan Parties shall ACH or wire
transfer no less frequently than once each Business Day (and whether or not there are then any
outstanding Obligations) to a Blocked Account all amounts on deposit in each such DDA (net of such
minimum balance consistent with past practices, but not to exceed $200,000 in the aggregate for all
DDAs in any event) and all payments received by any Loan Party from credit card processors.




          (c) After the occurrence and during the continuance of a Cash Dominion Event (and delivery of
notice thereof from the Administrative Agent or the Canadian Agent, as applicable, to the Lead
Borrower and the applicable Blocked Account Bank), the Loan Parties and each Blocked Account Bank
shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there
are then any outstanding Obligations) to the concentration account maintained by the Administrative
Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any
Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the
“Canadian Concentration Account”) (in the case of any Canadian Loan Party) all cash
receipts and collections by the Loan Parties (other than Operating Cash, and Cash Equivalents being
held in accordance with the terms of the proviso at the end of the definition of “Permitted
Investments”), including, without limitation, the following:





          (i) all available cash receipts of the Loan Parties from the sale of Inventory and
other assets (other than Operating Cash);




          (ii) all proceeds of collections of Accounts of the Loan Parties;




          (iii) all other cash payments received by a Loan Party from any Person or from any
source or on account of any sale or other transaction or event, including, without
limitation, all Net Proceeds from any Prepayment Event;




          (iv) the then cash balance of each DDA (net of any minimum balance, not to exceed
$200,000 in the aggregate) for all DDAs combined;




          (v) the then entire ledger balance of each Blocked Account (net of any minimum balance,
not to exceed $200,000 in the aggregate) for all Blocked Accounts combined; and




          (vi) the cash proceeds of all credit card charges received by any Loan Party.



          (d) The Domestic Concentration Account shall at all times be under the sole dominion and
control of the Administrative Agent, and the Canadian Concentration Account shall at all times be
under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and
agree that (i) the Loan Parties have no right of withdrawal from the Domestic Concentration Account
or the Canadian Concentration Account, (ii) the funds on deposit in each Domestic Concentration
Account shall at all times be collateral security for the Secured Obligations (as defined in the
Security Agreement), (iii) the funds on deposit in each Canadian Concentration Account shall at all
times be collateral security for all of the Canadian Liabilities and (iv) the funds on deposit in
the Domestic Concentration Account and the Canadian Concentration Account shall be applied as
provided in Section 2.05 of this Agreement. In the event that, notwithstanding the
provisions of this Section  6.13, any Domestic Loan Party or Canadian Loan Party receives
or otherwise has dominion and control of any such proceeds or collections (other than Operating
Cash, and Cash Equivalents being held in accordance with the terms of the proviso at the end of the
definition of “Permitted Investments”) while a Cash Dominion Event Exists, such proceeds and
collections shall be held in trust by such Domestic Loan Party for the Administrative Agent and by
such Canadian Loan Party for the Canadian Agent, shall not be commingled with any of such Loan
Party’s other funds or deposited in any account of such Loan Party and shall, not later than the
Business Day after receipt thereof, be deposited into the Domestic Concentration Account or the
Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan
Party may be instructed by the Administrative Agent or the Canadian Agent, as applicable.




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          (e) Upon the request of the Administrative Agent, the Domestic Loan Parties shall cause bank
statements and/or other reports to be delivered to the Administrative Agent not less often than
monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the
proper transfer of funds as set forth above. Upon the request of the Canadian Agent, the Canadian
Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative
Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked
Account to ensure the proper transfer of funds as set forth above. So long as no Cash Dominion
Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control
over, the manner of disposition of funds in the Blocked Accounts. Any amounts held or received in
the Domestic Concentration Account at any time when no Cash Dominion Event exists or while no Loans
are outstanding (except as provided in Section 8.02) shall be promptly remitted to an
account of the Lead Borrower, or as the Lead Borrower may otherwise direct. Any amounts held or
received in the Canadian Concentration Account at any time when no Cash Dominion Event exists or
while no Loans are outstanding (except as provided in Section 8.02) shall be promptly
remitted to an account of the Canadian Borrower or as the Canadian Borrower may otherwise direct.




          (f) The Loan Parties shall not permit cash in an aggregate amount in excess of 10% of the
aggregate of the Domestic Borrowing Base and the Canadian Borrowing Base, each as then in effect
(other than (i) “store” cash, cash held in local, non-concentration deposit accounts, cash in
transit between stores and depository accounts and cash receipts from sales in the process of
inter-account transfers, in each case as a result of the ordinary course operations of the Loan
Parties, and (ii) to the extent necessary for the Loan Parties to satisfy in the ordinary course of
their business the current liabilities incurred by them in the ordinary course of their business
and without acceleration of the satisfaction of such current liabilities) to accumulate and be
maintained in the deposit accounts or Cash Equivalents of the Loan Parties; provided, however, that
the Loan Parties’ obligations under this Section 6.13(f) shall be suspended if and for so
long as there are no Loans outstanding.




     6.14 Information Regarding the Collateral.



     Furnish to the Administrative Agent at least fifteen (15) days’ (or such shorter period as the
Administrative Agent shall agree) prior written notice of any change in: (i) any Loan Party’s legal
name; (ii) the location of any Loan Party’s chief executive office or its principal place of
business; (iii) any Loan Party’s organizational type or jurisdiction of incorporation or formation;
or (iv) any Loan Party’s Federal Taxpayer Identification Number or organizational identification
number assigned to it by its jurisdiction of organization. The Loan Parties agree not to effect or
permit any change referred to in the preceding sentence unless all filings have been made under the
UCC, PPSA or otherwise that are required in order for the Administrative Agent or the Canadian
Agent, as applicable, to continue, following such change, to have a valid, legal and perfected
security interest in the Collateral for its own benefit and the benefit of the other applicable
Credit Parties (to the extent a security interest in such Collateral can be perfected by the filing
of a financing statement under the UCC or a filing under the PPSA).



     6.15 Physical Inventories.



          (a) Cause (i) not less than two (2) physical inventories of raw materials to be undertaken, at
the expense of the Loan Parties, in each twelve (12) month period, conducted by a Loan Party or
such other inventory takers as are reasonably satisfactory to the Co-Collateral Agents and
following such methodology as is consistent with the methodology used in the immediately preceding
inventory or as otherwise may be reasonably satisfactory to the Co-Collateral Agents and (ii) daily
cycle counts of finished goods located at distribution centers, in each case consistent with past
practices; provided, however, until such time as the Canadian Borrower transitions
to periodic cycle counts with respect to its Inventory, (x) any physical inventory undertaken by
the Canadian Borrower shall only include finished goods and (y) the Canadian Borrower shall not be
required to comply with clause (ii) above. In the event that at any time Domestic Availability is
less than twenty-five percent (25%) of the




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Total Loan Cap, any Agent may require that in addition
to the two (2) physical inventories of raw materials, an additional physical inventory of all
inventory be undertaken, at the expense of the Loan Parties, in the manner described above, during
such twelve (12) month period. The Co-Collateral Agents, at the expense of the Loan Parties, may
participate in and/or observe each scheduled physical count of Inventory which is undertaken on
behalf of any Loan Party. The Lead Borrower (with respect to the inventory of the Domestic Loan
Parties) and the Canadian Borrower (with respect to the inventory of the Canadian Loan Parties),
within twenty (20) days following the completion of such physical inventory, shall provide the
Administrative Agent or the Canadian Agent, as applicable, with a reconciliation of the
results of such physical inventory (as well as of any other physical inventory) and shall post
such results to the Loan Parties’ stock ledgers and general ledgers, as applicable. At the request
of the Administrative Agent, the Lead Borrower shall, within thirty (30) days after such request,
provide the Administrative Agent a summary of the average daily cycle count for the most recently
ended Fiscal Quarter.



(b) Any Agent (after consultation with the Administrative Agent), in its discretion, if any
Default or Event of Default exists, may cause additional inventories to be taken as such Agent
determines (each, at the expense of the Loan Parties).




     6.16 Environmental Laws.



          (a) Conduct, and cause each Subsidiary to conduct, its operations in compliance with all
Environmental Laws, except where the failure to do so would not reasonably be expected to have a
Material Adverse Effect; (b) obtain and renew, and cause each Subsidiary to obtain and renew, all
Environmental Permits required for its operations, except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect; and (c) implement, and cause each
Subsidiary to implement, any and all investigation, remediation, removal and response actions that
are required under applicable Environmental Laws to prevent the release of any Hazardous Materials
on, at, or from any of its Real Estate; provided, however, that neither a Loan
Party nor any of its Subsidiaries shall be required to undertake any such investigation, cleanup,
removal, remedial or other action to the extent that (i) its obligation to do so is being contested
in good faith and by proper proceedings and adequate reserves have been set aside and are being
maintained by the Loan Parties with respect to such circumstances in accordance with GAAP or (ii)
failure to undertake any investigation, clean up, removal, remedial or other action would not
reasonably be expected to have a Material Adverse Effect. Nothing contained herein shall be deemed
to limit the rights of the Agents or the Canadian Agent with respect to establishing or modifying
Reserves in a manner permitted by this Agreement.




     6.17 Further Assurances.



          (a) Execute any and all further documents, financing statements, filings, agreements and
instruments, and take all such further actions (including the filing and recording of financing
statements, amendments to financing statements or other documents under the UCC, the PPSA or any
other similar legislation), that may be required under any applicable Law, or which any Agent or
the Canadian Agent may reasonably request, to grant, preserve, protect or perfect the Liens created
or intended to be created by the Security Documents or the validity or priority of any such Lien,
all at the expense of the Loan Parties and to the extent required by, and subject to the
limitations set forth in, the Security Documents and this Agreement.




          (b) If any material personal property assets are acquired by any Loan Party after the Closing
Date (other than assets constituting Collateral under the Security Documents that become subject to
the Lien of the Security Documents upon acquisition thereof), notify the Agents thereof (in the
case of Intellectual Property, solely with respect to Intellectual Property which is the subject of
a registration or application with the PTO, Copyright Office or CIPO and within the time frames
set forth in Schedule 6.02), and the Loan Parties will cause such assets to be subjected to
a perfected Lien securing the Secured Obligations (as defined in the Security Agreement) of the
Domestic Loan Parties (in the case of a Domestic Loan Party) or the Canadian Liabilities (in the
case of a Canadian Loan Party), as applicable, and will take such actions as shall be necessary or
shall be requested by any Agent or the Canadian Agent,




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as applicable, to grant and perfect such Liens, in each case to the extent required by, and subject to the limitations set forth in, the
Security Documents and this Agreement, including actions described in paragraph (a) of this
Section  6.17, all at the expense of the Loan Parties. In no event shall compliance with
this Section  6.17(b) waive or be deemed a waiver or Consent to any transaction giving rise
to the need to comply with this Section  6.17(b) if such transaction was not otherwise
expressly permitted by this Agreement or constitute or be deemed to constitute Consent to the
inclusion of any acquired assets in the computation of the Borrowing Base.




          (c) If, after the Closing Date, any Loan Party acquires a fee interest in real property
located in the United States with a fair market value of $5.0 million or more (other than to the
extent such real property was financed through the incurrence of any Indebtedness permitted by
Section 7.03), such Loan Party shall notify the Administrative Agent and, if requested by any Agent, take such
actions and execute such documents as any Agent shall reasonably require to create a mortgage Lien
on such real property.




     6.18 Intentionally Omitted



     6.19 Material Contracts. In each case, exclusive of the Term Loan Documents or the Senior
Note Indenture or any other Material Contract relating to Material Indebtedness, perform and
observe all the terms and provisions of each Material Contract to be performed or observed by it,
maintain each such Material Contract in full force and effect (other than expirations pursuant to
the terms thereof), and enforce each such Material Contract in accordance with its terms.



     6.20 Canadian Pension Benefit Plans.



     Each Canadian Loan Party shall cause each of its Canadian Pension Plans to be duly qualified
and administered in all respects in compliance with, as applicable, the Supplemental Pension Plans
Act (Quebec) and the Pension Benefits Act (Ontario) and all other applicable laws (including
regulations, orders and directives), and the terms of the Canadian Pension Plans and any agreements
relating thereto. Each Canadian Loan Party shall ensure:




     (a) it has no unfunded, solvency, or deficiency on windup liability and no
accumulated funding deficiency (whether or not waived), or any amount of unfunded benefit
liabilities in respect of any Canadian Pension Plan, including any Canadian Pension Plan to
be established and administered by it or them;




     (b) all amounts required to be paid by it or them are paid when due;




     (c) no liability upon it or them or Lien on any of its or their asset property arises
or exists in respect of any Canadian Pension Plan;




     (d) it makes all required contributions to any Canadian Pension Plan when due; and




     (e) it does not engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Canadian Pension Plan that could reasonably be
expected to result in liability.



ARTICLE VII

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied (other than contingent indemnification Obligations for which



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a claim has not then been asserted), or any Letter of Credit shall remain outstanding, no Loan Party
shall, nor shall it permit any Americas Subsidiary to, directly or indirectly:




     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, or sign or file under the UCC, the
PPSA or any similar Law or statute of any jurisdiction a financing statement or similar document
that names any Loan Party or any Americas Subsidiary as debtor; or sign or authorize any security
agreement authorizing any Person thereunder to file such financing statement or similar document
other than, as to all of the above, Permitted Encumbrances.



     7.02 Investments. Make any Investments, except Permitted Investments.



     7.03 Indebtedness. Create, incur, assume, guarantee, suffer to exist or otherwise become
or remain liable with respect to, any Indebtedness, except Permitted Indebtedness. The accrual of
interest and the accretion or amortization of original issue discount on Indebtedness and the
payment of interest in the form of additional Indebtedness originally incurred in accordance with
this Section  7.03 will not constitute an incurrence of Indebtedness. In the
event that any item of Indebtedness meets more than one of the categories set forth in the
definition of “Permitted Indebtedness”, the Lead Borrower may classify such item of Indebtedness
and only be required to include the amount and type of such Indebtedness in one or more of such
clauses, at its election. For purposes of determining compliance with any Dollar-denominated
restriction on the incurrence of Indebtedness, the Dollar-equivalent principal amount of
Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency
exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or
first committed, in the case of revolving credit debt; provided that if such Indebtedness
is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated
in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or
defeasance would cause the applicable Dollar-denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such extension, replacement,
refunding, refinancing, renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have
been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or
defeased.



     7.04 Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or
into another Person, except that, so long as no Default or Event of Default shall have occurred and
be continuing prior to, or immediately after giving effect to, any action described below or would
result therefrom:




     (a) any Subsidiary which is not a Loan Party may merge, amalgamate or consolidate
with or into (i) a Loan Party, provided that a Loan Party shall be the continuing or
surviving Person, or (ii) any one or more other Subsidiaries which are not Loan Parties,
provided that when any Americas Subsidiary that is a Wholly-Owned Subsidiary is
merging or amalgamating with another Subsidiary, a Wholly-Owned Subsidiary shall be the
continuing or surviving Person;




     (b) any Loan Party or any Subsidiary which is a Loan Party may merge, amalgamate, or
consolidate with or into any other Subsidiary which is a Loan Party, provided that
in any merger, amalgamation or consolidation involving a Borrowing Base Party, a Borrowing
Base Party shall be the continuing or surviving Person;




     (c) in connection with a Permitted Investment, any Loan Party or any Americas
Subsidiary may merge, amalgamate with or into or consolidate with any other Person or permit



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any other Person to merge with or into or consolidate with it; provided that in any
merger, amalgamation or consolidation involving a Loan Party, a Loan Party is the surviving
Person;




     (d) (i) any Loan Party or any Americas Subsidiary may Dispose of all or substantially
all of its assets (upon voluntary liquidation or otherwise) to another Loan Party; and (ii)
any Subsidiary which is not a Loan Party may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to another Subsidiary which is not a Loan
Party; and




     (e) any Guarantor or any Subsidiary which is not a Loan Party may liquidate or dissolve
or change its legal form if the Parent determines in good faith that such action is in the
best interests of the Parent and its Subsidiaries and is not materially disadvantageous to
the Lenders.



     7.05 Dispositions. Make any Disposition, except Permitted Dispositions. To the extent any
Collateral is Disposed of as permitted by this Section  7.05 to any Person other than any
Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan
Documents.



     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, except:




     (a) each Loan Party and each Americas Subsidiary may make Restricted Payments to
any Loan Party;




     (b) the Loan Parties and each Americas Subsidiary may declare and make dividend
payments or other distributions payable solely in Equity Interests (other than Disqualified
Stock not otherwise permitted by Section  7.03);




     (c) each Americas Subsidiary that is not a Loan Party may make Restricted Payments to
any other Americas Subsidiary that is not a Loan Party;




     (d) the Parent may pay for and otherwise effect the repurchase, retirement or other
acquisition or retirement for value of Equity Interests of the Parent by any employee,
director or officer of the Parent or any of its Subsidiaries pursuant to any equity plan,
stock option plan or any other benefit plan or any agreement with any employee, director or
officer of the Parent or any of its Subsidiaries; provided that the aggregate amount
of Restricted Payments made pursuant to this clause (d) shall not exceed $1,000,000 in any
calendar year;




     (e) any Loan Party and each Americas Subsidiary may (i) pay cash in lieu of fractional
Equity Interests in connection with any dividend, split or combination thereof or any
Permitted Investment and (ii) honor any conversion request by a holder of convertible
Indebtedness and make cash payments in lieu of fractional shares in connection with any such
conversion;




     (f) any Canadian Subsidiary may make Restricted Payments to any direct or indirect
Subsidiary of the Parent so long as an amount equal to such Restricted Payments made by such
Canadian Subsidiary is transferred to a Domestic Loan Party substantially concurrently with
such Restricted Payment; and




     (g) if the Payment Conditions are satisfied, the Loan Parties and each Americas
Subsidiary may make Restricted Payments in addition to those set forth in clauses (a)
through (f) above.



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     7.07 Prepayments of Indebtedness. Prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof in any manner any Permitted Indebtedness (other than the
Obligations or Indebtedness between Loan Parties), or make any payment in violation of any
subordination terms of any Subordinated Indebtedness, except (a) as long as no Event of Default
then exists or would arise therefrom, regularly scheduled or mandatory repayments, repurchases,
redemptions, defeasances or other satisfaction of Permitted Indebtedness (other than Subordinated
Indebtedness), (b) as long as no Event of Default has occurred and is continuing, voluntary
prepayments, redemptions, repurchases, defeasances or other satisfaction of Permitted Indebtedness
(but excluding any payment in violation of the subordination terms of any Subordinated
Indebtedness) (i) in an amount less than $6,000,000 in the aggregate during the Availability Period
as long as the Availability Condition is satisfied, or (ii) constituting intercompany Indebtedness
owing by a Loan Party to any Subsidiary that is not a Loan Party so long as an amount equal to such
amount prepaid, redeemed, purchased or otherwise satisfied is transferred to a Loan Party
substantially concurrently with such prepayment, redemption, purchase or other satisfaction, (c) as
long as no Event of Default then exists, repayments and prepayments of Subordinated Indebtedness in
accordance with the subordination terms thereof, (d) voluntary prepayments, repurchases,
redemptions, defeasances or other satisfaction of Permitted Indebtedness (but excluding on account
of any Subordinated Indebtedness) as long as the Payment Conditions are satisfied, and (e) any
Permitted Amendment/Refinancings of such Indebtedness.



     7.08 Change in Nature of Business



     Engage in any line of business substantially different from the lines of business conducted by
such Loan Parties and their Subsidiaries on the date hereof or any business substantially related
or incidental thereto.



     7.09 Transactions with Affiliates. Enter into, renew, extend or be a party to any
transaction of any kind with any Affiliate of any Loan Party, whether or not in the ordinary course
of business, other than on fair and reasonable terms substantially as favorable to the Loan Parties
or such Americas Subsidiary as would be obtainable by the Loan Parties or such Americas Subsidiary
at the time in a comparable arm’s length transaction with a Person other than an Affiliate,
provided that the foregoing restriction shall not apply to (a) a transaction between or
among the Loan Parties not prohibited hereunder; (b) transactions not otherwise prohibited
hereunder between or among the Parent or any Subsidiary or any entity that becomes a Subsidiary as
a result of such transaction; (c) equity issuances, repurchases, retirements or other acquisitions
or retirements of Equity Interests by the Parent permitted under Section  7.06; (d) the
transactions occurring on the Closing Date and the payment of fees and expenses related thereto;
(e) the issuance of Equity Interests to any officer, director, employee or consultant of the Parent
or any of its Subsidiaries; (f) transactions, arrangements, reimbursements and indemnities
permitted between or among such parties under this Agreement; (g) the payment of reasonable fees
and out-of-pocket costs to directors, and compensation and employee benefit arrangements paid to,
and indemnities provided for the benefit of, directors, officers or employees of the Parent or any
of its Subsidiaries; (h) any issuances of securities or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment agreements, stock options and
stock ownership plans of the Parent or any of its Subsidiaries; (i) any transfers by or among any
Affiliates to pay tax liabilities, or (j) transactions pursuant to and in connection with the Term
Loan Documents (including the issuance of warrants in connection therewith and any Permitted
Amendment/Refinancing thereof).



     7.10 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation
(other than (x) this Agreement or any other Loan Document or (y) the Term Loan Credit Agreements or
any document relating thereto or (z) the Senior Note Indenture or any Permitted
Amendment/Refinancing of any of the foregoing) that limits the ability (i) any Americas Subsidiary
that is not a Loan Party to



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make Restricted Payments to any Loan Party or (ii) of the Loan Parties
to create, incur, assume or suffer to exist Liens on property of such Person in favor of the
Administrative Agent or the Canadian Agent, as applicable, under the Loan Documents;
provided, however, that none of the foregoing shall prohibit (A) any negative
pledge incurred or provided in favor of any holder of Indebtedness permitted under clauses (c) or
(f) of the definition of Permitted Indebtedness solely to the extent any such negative pledge
relates to the property financed by or the subject of such Indebtedness; (B) customary anti-assignment provisions
in contracts restricting the assignment thereof or in contracts for the Disposition of any assets
or any Person, provided that the restrictions in any such contract shall apply only to the assets
or Person that is to be Disposed of; (C) provisions in leases of real property that prohibit
mortgages or pledges of the lessee’s interest under such lease or restricting subletting or
assignment of such lease; (D) customary provisions in joint venture agreements and other similar
agreements applicable to joint ventures to the extent such joint ventures are not prohibited
hereunder; (E) customary restrictions arising under licenses and other contracts entered into in
the ordinary course of business; (F) Contractual Obligations which (x) exist on the date hereof and
(to the extent not otherwise permitted by this Section  7.10) are listed on Schedule
 7.10 hereto and (y) to the extent Contractual Obligations permitted by clause (x) are set
forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any
permitted renewal, extension or refinancing of such Indebtedness so long as such renewal, extension
or refinancing does not expand the scope of such Contractual Obligation; or (G) Contractual
Obligations which are binding on a Subsidiary at the time such Subsidiary first becomes a
Subsidiary, so long as such Contractual Obligations were not entered into in contemplation of such
Person becoming a Subsidiary.




     7.11 Use of Proceeds. Use the proceeds of any Credit Extension in a manner inconsistent
with Section 6.11 or in any manner which violates Regulations T, U or X of the FRB.



     7.12 Amendment of Material Documents.



     Amend, modify or waive any of a Loan Party’s rights under (a) its Organization Documents in a
manner materially adverse to the Credit Parties, or (b) any Material Contract (other than any Loan
Document) or Material Indebtedness (other than on account of any refinancing or Permitted
Amendment/Refinancing otherwise permitted hereunder), in each case to the extent that such
amendment, modification or waiver would be reasonably likely to have a Material Adverse Effect.



     7.13 Fiscal Year.



     Change the Fiscal Year of any Loan Party without the prior consent of the Administrative
Agent, except as required by GAAP.



     7.14 Deposit Accounts; Credit Card Processors.



     In the case of any Loan Party, open new Blocked Accounts or engage any new credit card
processors unless the Loan Parties shall have delivered to the Administrative Agent appropriate
Blocked Account Agreements or Credit Card Notifications, as applicable, consistent with the
provisions of Section  6.13 or otherwise reasonably satisfactory to the Agents and, if
applicable, the Canadian Agent.



     7.15 Financial Covenants.




     (a) Consolidated Fixed Charge Coverage Ratio. During the continuance of a Covenant
Compliance Event, permit the Consolidated Fixed Charge Coverage Ratio, calculated as of the last
day of each Measurement Period during such continuation, to be less than 1.1:1.0.




     (b) Availability. Permit Domestic Availability at any time to be less than or equal
to seven and one half percent (7.5%) of the Total Loan Cap.



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ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:




     (a) Non-Payment. Any Borrower or any other Loan Party fails to pay when
and as required to be paid herein, (i) any amount of principal of any Loan or any L/C
Obligation, or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii)
any interest on any Loan or on any L/C Obligation, or any fee due hereunder, which failure
continues for two (2) Business Days, or (iii) any other amount payable hereunder or under
any other Loan Document which failure continues for two (2) Business Days; or




     (b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section  6.01, 6.02 (exclusive of
Section 6.02(f)),  6.03,  6.05,  6.07,  6.10,
 6.11,  6.12,  6.13,  6.14 or Article VII; or any
Loan Party fails to deliver any one or more of the financial and collateral reports
described on Schedule 6.02 hereto, no later
than the times set forth in such Schedule, and such failure continues for three (3)
Business Days after notice thereof by the Administrative Agent to the Lead Borrower, or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection  (a) or  (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days
after notice thereof by the Administrative Agent to the Lead Borrower; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any Borrower or
any other Loan Party herein or in any other Loan Document, shall be incorrect or misleading
in any material respect (or in the case of any representation or warranty qualified by
materiality, in any respect) when made or deemed made; or




     (e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to
make any payment when due, after giving effect to any applicable grace period (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of
any Material Indebtedness, or (B) fails to observe or perform any other agreement or
condition relating to any such Material Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or holders of such
Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or
to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer
to repurchase, prepay, defease or redeem such Indebtedness to be made, in each case, prior
to its stated maturity; provided that any such failure is unremedied and is not waived by
the holders of such Indebtedness; provided further that this clause (i)(B) shall not
apply to (x) secured Indebtedness of a Loan Party or a Subsidiary that becomes due upon the
sale or transfer by such Loan Party or Subsidiary of the property or assets securing such
Indebtedness; or (y) scheduled payments, defeasances or redemptions of Indebtedness on the
dates set forth in the instruments and agreements governing such Indebtedness; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which a Loan Party or
any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so



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defined) under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Loan Party or such Subsidiary as a result thereof is greater
than $15,000,000; provided that such failure is unremedied and is not waived by the
applicable counterparty to such Swap Contract; or





     (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding or makes any filing under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, interim receiver, trustee, monitor, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or a proceeding shall be commenced or a petition filed, without the
application or consent of such Person, seeking or requesting the appointment of any
receiver, interim receiver, trustee, monitor, custodian, conservator, liquidator,
rehabilitator or similar officer and such receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed and the appointment continues
undischarged, undismissed or unstayed for 45 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of its property
is instituted without the consent of such Person and continues undismissed or unstayed for
45 calendar days, or an order for relief is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary
thereof becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due in the ordinary course of business, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or any material
part of the property of any such
Person and is not released, vacated or fully bonded within thirty (30) days after its
issuance or levy; or




     (h) Judgments. There is entered against any Loan Party or any Subsidiary
thereof (i) one or more final judgments for the payment of money in an aggregate amount (as
to all such final judgments) exceeding $5,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company,
has been notified of the potential claim and does not dispute coverage), or (ii) any one or
more non-monetary judgments that have, or could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect and, in either case such judgment is not,
within 30 days after the entry thereof, satisfied, vacated, discharged or execution thereof
stayed or bonded pending appeal, or such final judgment is not satisfied, vacated or
discharged prior to the expiration of any such stay; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability
of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $2,000,000 or which could reasonably be expected to
result in a Material Adverse Effect, or (ii) a Loan Party or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $2,000,000 or which could reasonably be expected to
result in a Material Adverse Effect; or




     (j) Canadian Pension Plan. Any event or condition shall occur or exist with
respect to a Canadian Pension Plan that could reasonably be expected to subject any Canadian
Loan Party to any tax, penalty or other liabilities under the Supplemental Pension Plans Act
(Quebec) and the Pension Benefits Act (Ontario) or any other applicable Laws, or if a
Canadian Loan Party is in



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default with respect to required payments to a Canadian Pension
Plan or any Lien arises (save for contribution amounts not yet due) in connection with any
Canadian Pension Plan, and which could reasonably be expected to result in a Material
Adverse Effect.




     (k) Invalidity of Loan Documents. (i) Any provision of any material Loan
Document, at any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations,
ceases to be in full force and effect; or any Loan Party contests in any manner the validity
or enforceability of any provision of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any provision of any Loan Document, or
purports to revoke, terminate or rescind any provision of any Loan Document or seeks to
avoid, limit or otherwise adversely affect any Lien purported to be created under any
Security Document; or (ii) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party or any Subsidiary not to be, a
valid and (to the extent required by the Security Documents and this Agreement) perfected
Lien on any Collateral (other than an immaterial portion of the Collateral), with the
priority required by the applicable Security Document; or




     (l) Change of Control. There occurs any Change of Control; or




     (m) Cessation of Business. Except as otherwise expressly permitted hereunder,
any Loan Party shall take any action to suspend the operation of the business of the Loan
Parties, taken as a whole, in the ordinary course or liquidate all or a material portion of
the assets of the Loan Parties, taken as a whole;




     (n) Loss of Collateral. There occurs any uninsured loss to any material
portion of the Collateral; or




     (o) Intentionally Omitted.




     (p) Indictment. The indictment against any Loan Party or any Subsidiary
thereof, under any federal, state, provincial, territorial, municipal, foreign or other
criminal statute, rule, regulation, order, or other requirement having the force of law for
a felony and such indictment
remains unquashed or undismissed for a period of ninety (90) days or more, unless the
Administrative Agent, in its reasonable discretion, determines that the indictment is not
material; or




     (q) Guaranty. The termination, revocation or attempted termination or
revocation by any Loan Party of any Facility Guaranty except as expressly permitted
hereunder or under any other Loan Document; or




     (r) Subordination. (i) The subordination provisions of the documents
evidencing or governing any Subordinated Indebtedness (the “Subordination
Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be
legally valid, binding and enforceable against any holder of the applicable Subordinated
Indebtedness; or (ii) any Borrower or any other Loan Party shall, directly or indirectly,
disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of
the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of
the Credit Parties, or (C) that all payments of principal of or premium and interest on the
applicable Subordinated Indebtedness, or realized from the liquidation of any property of
any Loan Party, shall be subject to any of the Subordination Provisions.



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     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent and, if applicable, the Canadian Agent may, or, at the request of the Required
Lenders shall, take any or all of the following actions:




     (a) declare the Commitments of each Lender to make Loans and any obligation of the
L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Commitments and
obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Loan Parties;




     (c) require that the Domestic Borrowers Cash Collateralize the Domestic L/C Obligations
(other than L/C Borrowings), and require that the Canadian Loan Parties Cash Collateralize
the Canadian L/C Obligations (other than L/C Borrowings); and




     (d) whether or not the maturity of the Obligations shall have been accelerated pursuant
hereto, proceed to protect, enforce and exercise all rights and remedies of the Credit
Parties under this Agreement, any of the other Loan Documents or applicable Law, including,
but not limited to, by suit in equity, action at law or other appropriate proceeding,
whether for the specific performance of any covenant or agreement contained in this
Agreement and the other Loan Documents or any instrument pursuant to which the Obligations
are evidenced, and, if such amount shall have become due, by declaration or otherwise,
proceed to enforce the payment thereof or any other legal or equitable right of the Credit
Parties;


provided, however, that upon the entry of an order for relief with respect to
any Loan Party or any Subsidiary thereof under any Debtor Relief Law, the obligation of each Lender
to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Loan Parties to Cash Collateralize the L/C Obligations (other than L/C Borrowings) as aforesaid
shall automatically become effective, in each case without further act of the Agents, the Canadian
Agent, the L/C Issuer, or any Lender.




     No remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or any other provision of Law.



     8.03 Application of Funds.



          (a) After the exercise of remedies provided for in Section  8.02 (or after the Loans
have automatically become immediately due and payable and the L/C Obligations have automatically
been required to be Cash Collateralized as set forth in the proviso to Section  8.02), any
amounts received from any Domestic Loan Party, from the liquidation of any Collateral of any
Domestic Loan Party, or on
account of the Obligations (excluding the Canadian Liabilities), shall be applied by the
Administrative Agent against the Obligations in the following order:





     First, to payment of that portion of the Obligations (excluding the Other
Liabilities and the Canadian Liabilities) constituting fees, indemnities, Credit Party
Expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and the Co-Collateral Agents and amounts payable under Article
 III) payable to the Administrative Agent and the Co-Collateral Agents, each
in its capacity as such;



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     Second, to payment of that portion of the Obligations (excluding the Other
Liabilities) constituting indemnities, Credit Party Expenses, and other amounts (other than
principal, interest and fees) payable to the Domestic Lenders and the L/C Issuer (on account
of Domestic Letters of Credit) (including fees, charges and disbursements of counsel to the
respective Domestic Lenders and the L/C Issuer (on account of Domestic Letters of Credit)
and amounts payable under Article  III), ratably among them in proportion
to the amounts described in this clause Second payable to them;




     Third, to the extent not previously reimbursed by the Domestic Lenders, to payment
to the Domestic Lenders of that portion of the Obligations constituting principal and
accrued and unpaid interest on any Permitted Domestic Overadvances, ratably among the
Domestic Lenders in proportion to the amounts described in this clause Third payable
to them;




     Fourth, to the extent that Swing Line Loans made to the Domestic Borrowers have not
been refinanced by a Committed Domestic Loan, payment to the Swing Line Lender of that
portion of the Obligations constituting accrued and unpaid interest on the Swing Line Loans
made to the Domestic Borrowers;




     Fifth, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Domestic Loans, Domestic L/C Borrowings and other Obligations (other than
the Canadian Liabilities), and fees (including Letter of Credit Fees, other than any fees
due on account of any Canadian Letter of Credit), ratably among the Domestic Lenders and the
L/C Issuer in proportion to the respective amounts described in this clause Fifth
payable to them;




     Sixth, to the extent that Swing Line Loans made to the Domestic Borrowers have not
been refinanced by a Committed Domestic Loan, to payment to the Swing Line Lender of that
portion of the Obligations constituting unpaid principal of the Swing Line Loans made to the
Domestic Borrowers;




     Seventh, to payment of that portion of the Obligations constituting unpaid principal
of the Domestic Loans and Domestic L/C Borrowings, ratably among the Domestic Lenders and
the L/C Issuer in proportion to the respective amounts described in this clause
Seventh held by them;




     Eighth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of Domestic L/C Obligations comprised of the aggregate undrawn
amount of Domestic Letters of Credit;




     Ninth, subject to Section  8.03(c), to the Canadian Agent to be
held by the Canadian Agent, for the ratable benefit of the Canadian Lenders as cash
collateral to payment of that portion of the Canadian Liabilities (excluding the Other
Canadian Liabilities) constituting fees, indemnities, Credit Party Expenses and other
amounts (including fees, charges and disbursements of counsel to the Canadian Agent and
amounts payable under Article  III) payable to the Canadian Agent, in its
capacity as such;




     Tenth, subject to Section  8.03(c), to the Canadian Agent to be
held by the Canadian Agent, for the ratable benefit of the Canadian Lenders and the L/C
Issuer as cash collateral to payment of that portion of the Canadian Liabilities (excluding
the Other Canadian Liabilities) constituting indemnities, Credit Party Expenses, and other
amounts (other than principal, interest and fees) payable to the Canadian Lenders and the
L/C Issuer (on account of Canadian Letters of Credit) (including fees, charges and
disbursements of counsel to the respective Domestic Lenders and the L/C Issuer (on account
of Canadian Letters of Credit) and amounts payable under Article



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III), ratably among them in proportion to the amounts described in this clause Tenth
payable to them;




     Eleventh, to the extent not previously reimbursed by the Canadian Lenders and
subject to Section  8.03(c), to the Canadian Agent to be held by the
Canadian Agent, for the ratable benefit of the Canadian Lenders as cash collateral to
payment to the Canadian Lenders of that portion of the Canadian Liabilities constituting
principal and accrued and unpaid interest on any Permitted Canadian Overadvances, ratably
among the Canadian Lenders in proportion to the amounts described in this clause
Eleventh payable to them;




     Twelfth, to the extent that Swing Line Loans made to the Canadian Borrower have not
been refinanced by a Committed Canadian Loan and subject to Section
 8.03(c), to the Canadian Agent to be held by the Canadian Agent, for the
ratable benefit of the Canadian Lenders and the Swing Line Lender as cash
collateral to payment to the Swing Line Lender of that portion of the Canadian Liabilities
constituting accrued and unpaid interest on the Swing Line Loans made to the Canadian
Borrower;




     Thirteenth, subject to Section  8.03(c), to the Canadian Agent to
be held by the Canadian Agent, for the ratable benefit of the Canadian Lenders and the L/C
Issuer as cash collateral to payment of that portion of the Canadian Liabilities
constituting accrued and unpaid interest on the Canadian Loans, Canadian L/C Borrowings and
other Canadian Liabilities, and fees (including Letter of Credit Fees not paid pursuant to
clause Fifth above), ratably among the Canadian Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Thirteenth payable to
them;




     Fourteenth, to the extent that Swing Line Loans made to the Canadian Borrower have
not been refinanced by a Committed Canadian Loan and subject to Section
 8.03(c), to the Canadian Agent to be held by the Canadian Agent, for the
ratable benefit of the Canadian Lenders and the Swing Line Lender as cash collateral to
payment to the Swing Line Lender of that portion of the Canadian Liabilities constituting
unpaid principal of the Swing Line Loans made to the Canadian Borrower;




     Fifteenth, subject to Section  8.03(c), to the Canadian Agent to
be held by the Canadian Agent, for the ratable benefit of the Canadian Lenders and the L/C
Issuer as cash collateral to payment of that portion of the Canadian Liabilities
constituting unpaid principal of the Canadian Loans and Canadian L/C Borrowings, ratably
among the Canadian Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Fifteenth held by them;




     Sixteenth, subject to Section  8.03(c), to the Canadian Agent to
be held by the Canadian Agent, for the ratable benefit of the Canadian Lenders and the L/C
Issuer, to Cash Collateralize that portion of Canadian L/C Obligations comprised of the
aggregate undrawn amount of Canadian Letters of Credit;




     Seventeenth, to payment of all other Obligations (including without limitation the
cash collateralization of unliquidated indemnification obligations for which a claim has
been made as provided in Section  10.04, but excluding any Other Domestic
Liabilities and Other Canadian Liabilities), ratably among the Credit Parties in proportion
to the respective amounts described in this clause Seventeenth held by them;



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     Eighteenth, to payment of that portion of the Obligations arising from Cash
Management Services to the extent secured under the Security Documents, ratably among the
Credit Parties in proportion to the respective amounts described in this clause
Eighteenth held by them;




     Nineteenth, to payment of all other Obligations arising from Bank Products to the
extent secured under the Security Documents, ratably among the Credit Parties in proportion
to the respective amounts described in this clause Nineteenth held by them; and




     Last, the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Domestic Loan Parties or as otherwise required by Law.




Subject to Section  2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Domestic Letters of Credit pursuant to clause Eighth
above shall be applied to satisfy drawings under such Domestic Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all Domestic Letters of
Credit have either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.



          (b) After the exercise of remedies provided for in Section  8.02 (or after the
Loans have automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the proviso to Section
 8.02), any amounts received from any Canadian Loan Party, from the liquidation of any
Collateral of any Canadian Loan Party, or on account of the Canadian Liabilities, shall be applied
by the Canadian Agent against the Canadian Liabilities in the following order:





     First, to payment of that portion of the Canadian Liabilities (excluding the
Other Canadian Liabilities) constituting fees, indemnities, Credit Party Expenses and other
amounts (including fees, charges and disbursements of counsel to the Canadian Agent and
amounts payable under Article  III) payable to the Canadian Agent, in its
capacity as such;




     Second, to payment of that portion of the Canadian Liabilities (excluding the Other
Canadian Liabilities) constituting indemnities, Credit Party Expenses, and other amounts
(other than principal, interest and fees) payable to the Canadian Lenders and the L/C Issuer
(on account of Canadian Letters of Credit) (including fees, charges and disbursements of
counsel to the respective Domestic Lenders and the L/C Issuer (on account of Canadian
Letters of Credit) and amounts payable under Article  III), ratably among
them in proportion to the amounts described in this clause Second payable to them;




     Third, to the extent not previously reimbursed by the Canadian Lenders, to the
Canadian Agent to be held by the Canadian Agent, for the ratable benefit of the Canadian
Lenders as cash collateral to payment to the Canadian Lenders of that portion of the
Canadian Liabilities constituting principal and accrued and unpaid interest on any Permitted
Canadian Overadvances, ratably among the Canadian Lenders in proportion to the amounts
described in this clause Third payable to them;




     Fourth, to the extent that Swing Line Loans made to the Canadian Borrower have not
been refinanced by a Committed Canadian Loan, to the Canadian Agent to be held by the
Canadian Agent, for the ratable benefit of the Canadian Lenders as cash collateral to
payment to the Swing Line Lender of that portion of the Canadian Liabilities constituting
accrued and unpaid interest on the Swing Line Loans made to the Canadian Borrower;




     Fifth, to payment of that portion of the Canadian Liabilities constituting accrued
and unpaid interest on the Canadian Loans, Canadian L/C Borrowings and other Canadian
Liabilities,



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and fees (including Letter of Credit Fees due on account of Canadian Letters of
Credit), ratably among the Canadian Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fifth payable to them;




     Sixth, to the extent that Swing Line Loans made to the Canadian Borrower have not
been refinanced by a Committed Canadian Loan, to payment to the Swing Line Lender of that
portion of the Canadian Liabilities constituting unpaid principal of the Swing Line Loans
made to the Canadian Borrower;




     Seventh, to payment of that portion of the Canadian Liabilities constituting unpaid
principal of the Canadian Loans and Canadian L/C Borrowings, ratably among the Canadian
Lenders and the L/C Issuer in proportion to the respective amounts described in this clause
Seventh held by them;




     Eighth, to the Canadian Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of Canadian L/C Obligations comprised of the aggregate undrawn
amount of Canadian Letters of Credit;




     Ninth, to payment of all other Canadian Liabilities (including without limitation
the cash collateralization of unliquidated indemnification obligations as provided in
Section  10.04, but excluding any Other Canadian Liabilities), ratably
among the Credit Parties in proportion to the respective amounts described in this clause
Ninth held by them;




     Tenth, to payment of that portion of the Canadian Liabilities arising from Cash
Management Services to the extent secured under the Security Documents, ratably among the
Credit Parties in proportion to the respective amounts described in this clause
Tenth held by them;




     Eleventh, to payment of all other Canadian Liabilities arising from Bank Products to
the extent secured under the Security Documents, ratably among the Credit Parties in
proportion to the respective amounts described in this clause Eleventh held by them;
and




     Last, the balance, if any, after all of the Canadian Liabilities have been
indefeasibly paid in full, to the Canadian Loan Parties or as otherwise required by Law.


Subject to Section  2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Canadian Letters of Credit pursuant to clause Eighth above shall be
applied to satisfy drawings under such Canadian Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Canadian Letters of Credit have either been fully
drawn or expired, such remaining amount shall be applied to the other Canadian Liabilities, if any,
in the order set forth above.




          (c) Any amounts received by the Canadian Agent pursuant to clauses Ninth through
Sixteenth of Section  8.03(a) shall be held as cash collateral for the applicable
Canadian Liabilities until the earlier of (i) the substantial Liquidation of the Collateral granted
by the Canadian Loan Parties to secure the Canadian Liabilities, or (ii) such date that the
Canadian Agent and the Administrative Agent shall otherwise determine.




     8.04 Waivers By Loan Parties. Except as otherwise provided for in this Agreement or by
applicable Law, each Loan Party waives (a) presentment, demand and protest and notice of
presentment, dishonor, notice of intent to accelerate, notice of acceleration, protest, default,
nonpayment, maturity, release, compromise, settlement, and hereby ratifies and confirms whatever
the Administrative Agent may do in this regard, (b) all rights to notice and a hearing prior to the
Administrative Agent’s taking



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possession or control of, or to the Administrative Agent’s replevy,
attachment or levy upon, the Collateral or any bond or security that might be required by any court
prior to allowing the Administrative Agent to exercise any of its remedies, and (c) the benefit of
all valuation, appraisal, marshaling and exemption Laws.




ARTICLE IX

AGENTS AND LENDERS




     9.01 Appointment and Authority.



          (a) Each of the Domestic Lenders and the L/C Issuer (with respect to Domestic Letters of
Credit) hereby irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article IX are for the benefit of the Agents, the Domestic
Lenders and the L/C Issuer, and no Loan Party or any Subsidiary thereof shall have rights as a
third party beneficiary of any of such provisions (other than the provisions of Section
9.06).




          (b) Each of the Canadian Lenders and the L/C Issuer (with respect to Canadian Letters of
Credit) hereby irrevocably appoints Bank of America-Canada Branch to act on its behalf as the
Canadian Agent hereunder and under the other Loan Documents and authorizes the Canadian Agent to
take such actions on its behalf and to exercise such powers as are delegated to the Canadian Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article IX are for the benefit of the Canadian Agent, the
Canadian Lenders and the L/C Issuer, and no Loan Party or any Subsidiary thereof shall have rights
as a third party beneficiary of any of such provisions (other than the provisions of Section
9.06).




          (c) Without limiting the generality of the foregoing Section 9.01(b), for the purposes of
creating a solidarité active in accordance with article 1541 of the Civil Code of Québec between
each Credit Party that is owed any Canadian Liabilities, taken individually, on the one hand, and
the Canadian Agent, on the other hand, each Canadian Loan Party and each such Credit Party
acknowledge and agree with the Canadian Agent that such Credit Party and the Canadian Agent are
hereby conferred the legal status of solidary creditors of the Canadian Loan Parties in respect of
all Canadian Liabilities, present and future, owed by any Canadian Loan Party to each such Credit
Party and the Canadian Agent (collectively, for the purposes of this paragraph, the “solidary
claim”). Accordingly, but subject (for the avoidance of doubt) to article 1542 of the Civil Code
of Québec, the Canadian Loan Parties are irrevocably bound towards the Canadian Agent and each such
Credit Party in respect of the entire solidary claim of the Canadian Agent and such Credit Party.
As a result of the foregoing, the Canadian Loan Parties confirm and agree that subject to Section
9.01(b), above, the rights of the Canadian Agent and each of the Credit Parties who are owed
Canadian Liabilities from time to time a party to this Agreement or any of the other Loan Documents
by way of assignment or otherwise are solidary and, as regards the Canadian Liabilities owing from
time to time to each such Credit Party, each of the Canadian Agent and such Credit Party is
entitled, when permitted pursuant to Section 8.01, to: (i) demand payment of all outstanding
amounts from time to time in respect of the Canadian Liabilities; (ii) exact the whole performance
of such Canadian Liabilities from the Canadian Loan Parties; (iii) benefit from the Canadian
Agent’s Liens in the Collateral in respect of such Canadian Liabilities; (iv) give a full
acquittance of such Canadian Liabilities (each Credit Party that is owed Canadian Liabilities
hereby agreeing to be bound by any such acquittance); and (v) exercise all rights and recourses
under the Loan Documents with respect to those Canadian Liabilities. The Canadian Liabilities of
the Canadian Loan Parties will be secured by the Canadian Agent’s Liens in the Collateral and the
Canadian Agent and the Credit Parties who are owed Canadian Liabilities will have a solidary
interest therein.





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          (d) Each of the Lenders (in its capacities as a Lender), the Swing Line Lender and the
L/C Issuer hereby irrevocably appoints Bank of America as Administrative Agent and authorizes the
Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Domestic
Loan Parties to secure any of the Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent”
and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant
to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Security Documents, or for exercising any rights and remedies
thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all
provisions of this Article IX and Article X (including Section 10.04(c)),
as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the
Loan Documents, as if set forth in full herein with respect thereto.




     9.02 Rights as a Lender. The Persons serving as the Agents hereunder shall have the same
rights and powers in their capacity as a Lender as any other Lender and may exercise the same as
though they were not the Administrative Agent, the Canadian Agent or the Co-Collateral Agents and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent, the Canadian Agent or
the Co-Collateral Agents hereunder in its individual capacity. Such Person and its Lender
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Loan Parties or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent, the
Canadian Agent or the Co-Collateral Agents hereunder and without any duty to account therefor to
the Lenders.



     9.03 Exculpatory Provisions. The Agents and the Canadian Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Agents and the Canadian Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent, the Canadian Agent or the
Co-Collateral Agents, as applicable, is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that no Agent nor the
Canadian Agent shall be required to take any action that, in its respective opinion or the
opinion of its counsel, may expose such Agent or the Canadian Agent to liability or that is
contrary to any Loan Document or applicable Law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Loan Parties or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent, the Canadian Agent, the
Co-Collateral Agents or any of its Lender Affiliates in any capacity.


No Agent nor the Canadian Agent shall be liable to any Credit Party for any action taken or not
taken by it (i) with the Consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith shall
be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or
(ii) in the absence of its own gross





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negligence or willful misconduct as determined by a final and
non-appealable judgment of a court of competent jurisdiction.




     The Agents and the Canadian Agent shall not be deemed to have knowledge of any Default unless
and until notice describing such Default is given to such Agent or the Canadian Agent by the Loan
Parties, a Lender or the L/C Issuer. In the event that the Agents or the Canadian Agent obtains
such actual knowledge or receives such a notice, the Agents or the Canadian Agent, as applicable,
shall give prompt notice thereof to each of the other Lenders. Upon the occurrence of an Event of
Default, the Agents or the Canadian Agent, as applicable, shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required Lenders. Unless
and until the Agents or the Canadian Agent, as applicable, shall have received such direction, the
Agents and the Canadian Agent, as applicable, may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to any such Default or Event of Default as they
shall deem advisable in the best interest of the Credit Parties. In no event shall the Agents or
the Canadian Agent be required to comply with any such directions to the extent that any Agent or
the Canadian Agent believes that its compliance with such directions would be unlawful.



     The Agents and the Canadian Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or the creation, perfection or priority of any Lien purported to be created
by the Security Documents, (v) the value or the sufficiency of any Collateral, or (vi) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Agents or the Canadian Agent.



     9.04 Reliance by Agents.



     Each Agent and the Canadian Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including, but not limited to, any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. Each Agent and the Canadian Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent and the Canadian Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent or the Canadian Agent, as applicable,
shall have received written notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. Each Agent and the Canadian Agent
may consult with legal counsel (who may be counsel for any Loan Party), independent accountants and
other experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



     9.05 Delegation of Duties. Each Agent and the Canadian Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by such Agent or the Canadian Agent. Each Agent, the Canadian Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any



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such sub-agent and to the Related Parties of the Agents or the Canadian Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as such Agent or the Canadian Agent.




     9.06 Resignation of Agents. Any Agent or the Canadian Agent may at any time give written
notice of its resignation to the Lenders, the L/C Issuer and the Lead Borrower. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Lead Borrower, to appoint a successor, which, in the case of any Agent, shall be a bank with an
office in the United States, or a Lender Affiliate of any such bank with an office in the United
States and shall, unless an Event of Default has occurred and is continuing at the time of such
appointment, be reasonably acceptable to the Lead Borrower (whose consent shall not be unreasonably
withheld or delayed), and in the case of the Canadian Agent, shall be a financial institution that
is listed on Schedule I, II or III of the Bank Act (Canada) or is not a foreign bank for purposes
of the Bank Act (Canada), and if such financial institution is not resident in Canada and is not
deemed to be resident in Canada for purposes of the Income Tax Act (Canada), then such financial
institution deals at arm’s length with each Canadian Loan Party for purposes of the Income Tax Act
(Canada) and shall, unless an Event of Default has occurred and is continuing at the time of such
appointment, be reasonably acceptable to the Canadian Borrower (whose consent shall not be
unreasonably withheld or delayed). If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent
or Canadian Agent, as applicable, gives notice of its resignation, then the retiring Agent or
Canadian Agent, as applicable, may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent, Canadian Agent or Co-Collateral Agent, as applicable, meeting the
qualifications set forth above; provided that if the Administrative Agent, the Canadian
Agent or the Co-Collateral Agent shall notify the Lead Borrower and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Agent or Canadian Agent, as applicable, shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any Collateral held by such Person on behalf of the Lenders or the L/C Issuer
under any of the Loan Documents, the retiring Administrative Agent or Canadian Agent, as
applicable, shall continue to hold such collateral security until such time as a successor
Administrative Agent or Canadian Agent, as applicable, is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent or
Canadian Agent, as applicable, shall instead be made by or to each Lender and the L/C Issuer
directly, until such time as the Required Lenders appoint a successor Administrative Agent or
Canadian Agent, as applicable, as provided for above in this Section 9.06. Upon the
acceptance of a successor’s appointment as Administrative Agent, Canadian Agent or Co-Collateral
Agent, as applicable, hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Agent or Canadian Agent, as
applicable, and the retiring Agent or Canadian Agent, as applicable, shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section 9.06). The fees payable by the
Borrowers to a successor Administrative Agent or Canadian Agent, as applicable, shall be the same
as those payable to its predecessor unless otherwise agreed between the Lead Borrower and such
successor. After the retiring Agent’s or Canadian Agent’s resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 10.04 shall continue in
effect for the benefit of such retiring Agent or Canadian Agent, as applicable, its sub-agents and
their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the retiring Agent
was acting as Administrative Agent, or Canadian Agent, or Co-Collateral Agent hereunder.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section
9.06 shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer and Swing Line Lender, (b)



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the retiring L/C Issuer and Swing Line Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.




     Any resignation by Bank of America-Canada Branch as Canadian Agent pursuant to this
Section 9.06 shall also constitute its resignation as L/C Issuer and Swing Line Lender.
Upon the acceptance of a successor’s appointment as Canadian Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall
be discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.



     9.07 Non-Reliance on Agents, Canadian Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Agents, the Canadian Agent or
any other Lender or any of their Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance
upon the Agents or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder. Except as provided in
Section 9.12, the Agents and the Canadian Agent shall not have any duty or responsibility
to provide any Credit Party with any other credit or other information concerning the affairs,
financial condition or business of any Loan Party that may come into the possession of the Agents
or the Canadian Agent, as applicable.



     9.08 No Other Duties, Etc. Notwithstanding anything to the contrary in this Agreement or any
of the other Loan Documents, no Person who is or becomes an Arranger, a Bookrunner or a Syndication
Agent shall have any powers, rights, duties, responsibilities or liabilities with respect to this
Agreement and the other Loan Documents.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made any demand on
the Loan Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer, the Administrative Agent and the other
Credit Parties (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuer, the Administrative Agent, such Credit Parties
and their respective agents and counsel and all other amounts due the Lenders, the L/C
Issuer the Administrative Agent and such Credit Parties under Sections 2.03(i),
2.03(j), 2.09 and 10.04) allowed in such judicial proceeding; and



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     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, interim receiver, assignee, trustee, monitor, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Lender and
the L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent
shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to
the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment, compromise or composition or proposal affecting the Obligations or the
rights of any Lender or the L/C Issuer or to authorize the Administrative Agent to vote in respect
of the claim of any Lender or the L/C Issuer in any such proceeding.



     9.10 Collateral and Guaranty Matters. The Credit Parties irrevocably authorize the Agents and
the Canadian Agent, at their option and in their discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
or the Canadian Agent under any Loan Document (i) upon termination of the Aggregate Total
Commitments and payment in full of all Obligations (other than contingent indemnification
obligations for which no claim has been asserted) and the expiration or termination of all
Letters of Credit, (ii) solely with respect to any Lien on any property of the Canadian Loan
Parties, upon termination of the Aggregate Canadian Commitments and payment in full of all
Canadian Liabilities (other than contingent indemnification obligations for which no claim
has been asserted) and the expiration or termination of all Canadian Letters of Credit,
(iii) that is Disposed of or to be Disposed of as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document, or (iv) if approved,
authorized or ratified in writing by the Required Lenders in accordance with Section
10.01;




     (b) to subordinate any Lien on any property granted to or held by the Administrative
Agent or the Canadian Agent under any Loan Document to the holder of any Lien on such
property that is permitted by clause (h) of the definition of Permitted Encumbrances; and




     (c) to release any Guarantor from its obligations under any Facility Guaranty and each
other applicable Loan Document if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.


Upon request by any Agent or the Canadian Agent at any time, the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan
Documents) will confirm in writing such Agent’s or Canadian Agent’s authority to release or
subordinate its interest in particular types or items of property, or to release any Guarantor from
its obligations under the Facility Guaranty and each other applicable Loan Document pursuant to
this Section 9.10. In each case as specified in this Section 9.10, the Agents or
Canadian Agent (as applicable) will, at the Loan Parties’ expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to evidence the
release of such item of Collateral from the assignment and Lien granted under the Security
Documents or to subordinate its interest in such item, or to release such Guarantor from its
obligations under the Facility Guaranty, in each case in accordance with the terms of the Loan
Documents and this Section 9.10.




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     9.11 Notice of Transfer.



     The Agents and the Canadian Agent may deem and treat a Lender party to this Agreement as the
owner of such Lender’s portion of the Loans and Commitments for all purposes, unless and until, and
except to the extent, an Assignment and Assumption shall have become effective as set forth in
Section 10.06.



     9.12 Reports and Financial Statements.



     By signing this Agreement, each Lender:




     (a) agrees to furnish the Administrative Agent or the Canadian Agent, as applicable,
after the occurrence and during the continuance of a Cash Dominion Event (and thereafter at
such frequency as the Administrative Agent or the Canadian Agent may reasonably request)
with a summary of all Other Domestic Liabilities or Other Canadian Liabilities due or to
become due to such Lender. In connection with any distributions to be made hereunder, the
Administrative Agent and the Canadian Agent shall be entitled to assume that no amounts are
due to any Lender on account of Other Liabilities unless the Administrative Agent or the
Canadian Agent, as applicable, has received written notice thereof from such Lender;




     (b) is deemed to have requested that the Administrative Agent or the Canadian Agent, as
applicable, furnish such Lender, promptly after they become available, copies of all
financial statements, notices or other written communications required to be delivered by
any Loan Party hereunder and all commercial finance examinations and appraisals of the
Collateral received by the Agents or the Canadian Agent (collectively, the
“Reports”) and the Administrative Agent and the Canadian Agent each hereby agrees to
honor each such request;




     (c) expressly agrees and acknowledges that neither the Administrative Agent nor the
Canadian Agent makes any representation or warranty as to the accuracy of the Reports, and
shall not be liable for any information contained in any Report;




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




     (e) agrees to keep all Reports confidential in accordance with the provisions of
Section 10.07 hereof; and




     (f) without limiting the generality of any other indemnification provision contained in
this Agreement, agrees: (i) to hold the Agents, the Canadian Agent and any such other
Lender preparing a Report harmless from any action the indemnifying Lender may take or
conclusion the indemnifying Lender may reach or draw from any Report in connection with any
Credit Extensions that the indemnifying Lender has made or may make to the Borrowers, or the
indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or
Loans; and (ii) to pay and protect, and indemnify, defend, and hold the Agents, the Canadian
Agent and any such other Lender preparing a Report harmless from and against, the claims,
actions, proceedings, damages, costs, expenses, and other amounts (including attorney costs)
incurred by the Agents, the Canadian Agent and any such other Lender preparing a Report as
the



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direct or indirect result of any third parties who might obtain all or part of any
Report through the indemnifying Lender.




     9.13 Agency for Perfection.



     Each Agent and Lender hereby appoints each other Agent and Lender as agent for the purpose of
perfecting Liens for the benefit of the Agents, the Canadian Agent and the Lenders, in assets
which, in accordance with Article 9 of the UCC, the PPSA or any other applicable Law of the United
States or Canada can be perfected only by possession. Should any Lender (other than the Agents and
the Canadian Agent) obtain possession of any such Collateral, such Lender shall notify the Agents
and the Canadian Agent, as applicable, thereof, and, promptly upon the Administrative Agent’s or
the Canadian Agent’s request therefor, shall deliver such Collateral to the Administrative Agent or
the Canadian Agent, as applicable, or otherwise deal with such Collateral in accordance with the
Administrative Agent’s or the Canadian Agent’s instructions.



     9.14 Indemnification of Agents and Canadian Agent. The Lenders shall indemnify the Agents and
the Canadian Agent (to the extent not reimbursed by the Loan Parties and without limiting the
obligations of Loan Parties hereunder), ratably according to their Applicable Percentages, from and
against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against any Agent or the Canadian Agent in any way relating to or arising
out of this Agreement or any other Loan Document or any action taken or omitted to be taken by any
Agent or the Canadian Agent in connection therewith; provided, that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent’s or the Canadian
Agent’s gross negligence or willful misconduct as determined by a final and nonappealable judgment
of a court of competent jurisdiction.



     9.15 Relation among Lenders. The Lenders are not partners or co-venturers, and no Lender
shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of
the Agents and the Canadian Agent) authorized to act for, any other Lender.



     9.16 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 or
the Canadian Agent, as applicable, its Applicable Percentage of any Loans, expenses or setoff or
purchase its Applicable Percentage of a participation interest in the Swing Line Loans or L/C
Borrowings and such failure is not cured within one (1) Business Day of receipt from the
Administrative Agent of written notice thereof, then, in addition to the rights and remedies that
may be available to the other Credit Parties, the Loan Parties 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 Loan Documents shall be suspended during the pendency of such failure or refusal, and (ii) a
Defaulting Lender shall be deemed to have assigned any and all payments due to it from the Loan
Parties, 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 Applicable Percentages 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 (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



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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. 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 Applicable Percentage of any Obligations, any participation obligation, or expenses as to
which it is delinquent, together with interest thereon at the rate set forth in Section
2.08(b) hereof from the date when originally due until the date upon which any such amounts
are actually paid.




          (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 Domestic Commitments of those Domestic Lenders electing to exercise such right,
and the respective Canadian Commitments of those Canadian Lenders electing to exercise such right),
of the Defaulting Lender’s Domestic Commitment or Canadian Commitment, as applicable, to fund
future Loans. Upon any such purchase of the Applicable Percentage of any Defaulting Lender, the
Defaulting Lender’s share in future Credit Extensions and its rights under the Loan Documents 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 Assumption.




          (c) Each Defaulting Lender shall indemnify the Administrative Agent or the Canadian Agent, as
applicable, 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 the Canadian Agent, as applicable, or by any non-Defaulting Lender, on account of a
Defaulting Lender’s failure to timely fund its Applicable Percentage of a Loan or to otherwise
perform its obligations under the Loan Documents.




     9.17 Actions In Concert. Anything in this Agreement to the contrary notwithstanding, each
Lender hereby agrees with each other Lender that no Lender shall take any action to protect or
enforce its rights arising out of this Agreement or any other Loan Document (including exercising
any rights of setoff) without first obtaining the prior written consent of the Agents and the
Required Lenders, it being the intent of Lenders that any such action to protect or enforce rights
under this Agreement and the other Loan Documents shall be taken in concert and at the direction or
with the consent of the Agents or the Required Lenders.



     9.18 Collateral Issues. Notwithstanding any other provisions of this Agreement or any of the
other Loan Documents to the contrary, each Co-Collateral Agent shall have rights at least as
expansive as the rights afforded to the Administrative Agent or the Canadian Agent relating to (i)
(x) the definitions herein of the terms “Domestic Availability” and “Canadian Availability” and any
component definition of either of the foregoing, and (y) the definitions herein of the terms
“Domestic Borrowing Base” and “Canadian Borrowing Base” and any component thereof (including,
without limitation, Reserves, advance rates, eligibility criteria, reporting requirements and
appraisals, examinations and collateral audits) and (ii) the validity, extent, perfection or
priority of the Liens granted to the Administrative Agent or the Canadian Agent in regards to the
Collateral (collectively, the “Collateral Issues”), and any provision in this Agreement or
any other Loan Document relating to a Collateral Issue which would otherwise only need the consent
of or to be satisfactory or acceptable to the Administrative Agent or the Canadian Agent shall be
deemed to require the consent of or be satisfactory or acceptable (as the case may be) to the
Co-Collateral Agents. In addition, in the event that all of the Agents and, as applicable, the
Canadian Agent, cannot agree on issues relating to the Domestic Borrowing Base, the Canadian
Borrowing Base, Domestic Availability, Canadian Availability, Domestic Borrowing Base eligibility
standards, Canadian Borrowing Base eligibility standards, Reserves, advance rates, borrowing base
reporting, appraisals or examinations or any other action or determination relating to a Collateral
Issue, the determination shall be made by the Agent and, if applicable, the Canadian Agent, either
asserting the more conservative credit judgment (that is, that would result in the least amount of
credit being available to the Borrowers hereunder) or declining to permit the requested action.



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ARTICLE X

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no Consent to any departure by any Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders (or the Administrative Agent, with the Consent of
the Required Lenders), and the Lead Borrower or the applicable Loan Party, as the case may be, and
each such waiver or Consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:




     (a) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written Consent of such Lender;




     (b) postpone any date fixed by this Agreement or any other Loan Document for any
payment or mandatory prepayment of principal, interest or fees due to the applicable Lenders
(or any of them) hereunder without the written Consent of each Lender entitled to such
payment;




     (c) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or any fees payable hereunder, without the written Consent of each Lender
entitled to such amount; provided, however, that only the Consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive
any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default
Rate;




     (d) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written Consent of each
Lender;




     (e) change any provision of this Section or change the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written Consent of each Lender;




     (f) except as expressly permitted hereunder or under any other Loan Document, release,
or limit the liability of, any Loan Party without the written Consent of each Lender;




     (g) except for Permitted Dispositions, release all or substantially all of the
Collateral from the Liens of the Security Documents without the written Consent of each
Lender;




     (h) except as provided in Section 2.15, increase the Aggregate Domestic
Commitments or the Aggregate Canadian Commitments without the written Consent of each
Lender;




     (i) change the definition of the term “Domestic Borrowing Base”, “Canadian Borrowing
Base” or any component definition of either term, if as a result thereof the amount of
credit available to the Borrowers hereunder would be increased without the written Consent
of each Lender, provided that, subject to Section 9.18 hereof, the foregoing shall
not limit the discretion of any Agent to change, establish or eliminate any Reserves with
respect to the Domestic Borrowing Base, or of any Agent or the Canadian Agent to change,
establish or eliminate any Reserves with respect to the Canadian Borrowing Base even if such
change or elimination results in an increase in the amount of credit available to the
Borrowers hereunder;



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     (j) modify the definition of “Permitted Domestic Overadvance” or the definition of
“Permitted Canadian Overadvance” so as to increase the amount thereof or, except as provided
in such definitions, the time period for a Permitted Domestic Overadvance or a Permitted
Canadian Overadvance without the written Consent of each Lender; and




     (k) except as expressly permitted herein or in any other Loan Document, subordinate any
of the Obligations hereunder or the Liens granted hereunder or under the other Loan
Documents, to any other Indebtedness or Lien, as the case may be without the written Consent
of each Lender;


and, provided further, that (i) no amendment, waiver or Consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or Consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or Consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iv) no amendment, waiver or Consent shall, unless in writing and signed by the Canadian
Agent in addition to the Lenders required above, affect the rights or duties of the Canadian Agent
under this Agreement or any other Loan Document; (v) no amendment, waiver or Consent shall, unless
in writing and signed by the Co-Collateral Agents in addition to the Lenders required above, affect
the rights or duties of any Co-Collateral Agent under this Agreement or any other Loan Document;
and (vi) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or Consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.




     If any Lender does not Consent (a “Non-Consenting Lender”) to a proposed amendment,
waiver, consent or release with respect to any Loan Document that requires the Consent of each or
each affected Lender and that has been approved by the Required Lenders, the Lead Borrower may
replace such Non-Consenting Lender in accordance with Section 10.13; provided that
such amendment, waiver, consent or release can be effected as a result of the assignment
contemplated by such Section (together with all other such assignments required by the Lead
Borrower to be made pursuant to this paragraph).



     10.02 Notices; Effectiveness; Electronic Communications.



          (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:





          (i) if to the Loan Parties, the Agents, the Canadian Agent, the L/C Issuer or the Swing
Line Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




          (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to




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have been given at the opening of business on the next Business Day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b)
below, shall be effective as provided in such subsection (b).




          (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent or the Canadian Agent, as applicable, provided that the foregoing shall not apply to
notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C
Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The Administrative Agent or the Lead
Borrower or the Canadian Agent and the Canadian Borrower may, in their 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.




          (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agents, the Canadian
Agent or any of their Related Parties (collectively, the “Agent Parties”) have any
liability to any Loan Party, any Lender, the L/C Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out
of the Loan Parties’ or the Agent Parties’ transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to any Loan Party, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).




     (d) Change of Address, Etc. Each of the Loan Parties, the Agents, the Canadian Agent,
the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Lead Borrower, the Agents, the Canadian Agent, the L/C Issuer and the
Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.



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          (e) Reliance by Agents, L/C Issuer and Lenders. The Agents, the Canadian Agent, the
L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Loan
Parties even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties
shall indemnify the Agents, the Canadian Agent, the L/C Issuer, each Lender and the Related Parties
of each of them from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the Loan Parties. All telephonic
notices to and other telephonic communications with the Agents and the Canadian Agent, may be
recorded by the Agents or the Canadian Agent, and each of the parties hereto hereby consents to
such recording.




     10.03 No Waiver; Cumulative Remedies. No failure by any Credit Party to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or under any other Loan Document preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges provided herein and in the other Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether any Credit Party may have had notice or
knowledge of such Default at the time.



     10.04 Expenses; Indemnity; Damage Waiver.



          (a) Costs and Expenses. The Borrowers shall pay all Credit Party Expenses (provided
that the Canadian Borrower shall be obligated to pay only those Credit Party Expenses which
constitute Credit Party Expenses incurred by the Canadian Agent or the Canadian Lenders in
connection with the Canadian Loans and Canadian Letters of Credit).




          (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the Agents
and the Canadian Agent (and any of their sub-agents), each other Credit Party, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, causes of action,
damages, liabilities, settlement payments, costs and related expenses (including the fees, charges
and disbursements of any counsel for any Indemnitee, but excluding Taxes which shall be governed by
Section 3.01), incurred by any Indemnitee or asserted against any Indemnitee by any third
party or by any Borrower or any other Loan Party arising out of, in connection with, or as a result
of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Agents and the Canadian Agent (and any of their
sub-agents) and their Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by any Loan Party or any of its Subsidiaries, or any
Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, (iv) any
claims of, or amounts paid by any Credit Party to, a Blocked Account Bank or other Person which has
entered into a control agreement with any Credit Party hereunder, or (v) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any Borrower or any
other Loan Party or any of the Loan Parties’ directors, shareholders or creditors, and regardless
of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in
whole or in part, out of the comparative,




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contributory or sole negligence of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by a
Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if such Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction; provided that with respect to the Canadian Loan Parties, “Indemnitees”
shall only refer to the Canadian Credit Parties and each Related Party of the Canadian Credit
Parties.




          (c) Reimbursement by Lenders. Without limiting their obligations under Section
9.14 hereof, to the extent that the Loan Parties for any reason fail to indefeasibly pay any
amount required under subsection (a) or (b) of this Section to be paid by it, each Lender
severally agrees to pay to the Agents and the Canadian Agent (and any of their sub-agents), the L/C
Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined
as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the Agents
and the Canadian Agent (and any of their sub-agents) or the L/C Issuer in its capacity as such, or
against any Related Party of any of the foregoing acting for the Agents and the Canadian Agent (and
any of their sub-agents) or L/C Issuer in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).




          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, the Loan Parties shall not assert, and hereby waive, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
shall be liable for any damages arising from the use by unintended recipients of any information or
other materials distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than
for direct or actual damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.




          (e) Payments. All amounts due under this Section shall be payable on demand therefor.




          (f) Survival. The agreements in this Section shall survive the resignation of any
Agent, the Canadian Agent and the L/C Issuer, the assignment of any Commitment or Loan by any
Lender, the replacement of any Lender, the termination of the Aggregate Total Commitments and the
repayment, satisfaction or discharge of all the other Obligations and the termination of this
Agreement.




     10.05 Reinstatement; Payments Set Aside. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against any Loan Party for
liquidation or reorganization or otherwise under any Debtor Relief Law, should any Loan Party
become insolvent or make an assignment for the benefit of any creditor or creditors or should a
receiver, interim receiver, trustee, monitor, custodian, conservator, liquidator, rehabilitator or
similar officer be appointed for all or any significant part of any Loan Party’s assets, and shall
continue to be effective or to be reinstated, as the case may be, if at any time payment and
performance of the Obligations, or any part thereof, is, pursuant to applicable Law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations,
whether as a “voidable preference”, “fraudulent conveyance”, or otherwise, all as though such
payment or performance had not been made. To the extent that any payment by or on behalf of the
Loan Parties is made to any Credit Party, or any Credit Party exercises its right of setoff, and
such payment or the proceeds of such setoff or any part thereof is subsequently



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invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Credit Party in its discretion) to be repaid to a receiver, interim
receiver, trustee, monitor, custodian, conservator, liquidator, rehabilitator or similar officer,
or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise,
then (a) to the extent of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such payment had not been
made or such setoff had not occurred, (b) each Domestic Lender and the L/C Issuer (with respect to
Domestic Letters of Credit) severally agrees to pay to the Agents upon demand its Applicable
Percentage (without duplication) of any amount so recovered from or repaid by the Agents, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect, and (c) each Canadian Lender and the
L/C Issuer (with respect to Canadian Letters of Credit) severally agrees to pay to the Canadian
Agent upon demand its Applicable Percentage (without duplication) of any amount so recovered from
or repaid by the Canadian Agent, plus interest thereon from the date of such demand to the date
such payment is made at a rate per annum equal to the Canadian Prime Rate from to time in effect.
The obligations of the Lenders and the L/C Issuer under clause (b) and clause (c) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.




     10.06 Successors and Assigns.



          (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder or under any other Loan Document without the prior written Consent
of the
Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of Section 10.06(b), (ii) by way of participation in accordance with
the provisions of subsection Section 10.06(d), or (iii) by way of pledge or assignment of
a security interest subject to the restrictions of Section 10.06(f) (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Credit Parties) any legal or equitable right, remedy or
claim under or by reason of this Agreement.




          (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this Section
10.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:





          (i) Minimum Amounts




               (A) in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender or a Lender Affiliate of a Lender or an Approved Fund with respect to a Lender, no
minimum amount need be assigned; and




               (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than $10,000,000 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the Lead Borrower
otherwise consents (each



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such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has been met;




          (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of
Swing Line Loans;




          (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:




               (A) the consent of the Lead Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is continuing at
the time of such assignment or (2) such assignment is to a Lender, a Lender Affiliate of a
Lender or an Approved Fund; and




               (B) the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of any Commitment if such
assignment is to a Person that is not a Lender, a Lender Affiliate of such Lender or an
Approved Fund with respect to such Lender; and




               (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of the assignee
to participate in exposure under one or more Letters of Credit (whether
or not then outstanding) if such assignment is to a Person that is not a Lender, a
Lender Affiliate of such Lender or an Approved Fund with respect to such Lender; and




               (D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment in respect of the assignment of any
Commitment if such assignment is to a Person that is not a Lender, a Lender Affiliate of
such Lender or an Approved Fund with respect to such Lender provided that the provisions of
this clause (iii) shall not apply to any assignment to Rhône Capital L.P. or its Affiliates
pursuant to the purchase right in Section 5.4 of the Intercreditor Agreement. The parties
agree that Rhône Capital L.P. (“Rhône”) is a vested third party beneficiary of this Section
10.06 solely to the extent of its purchase right in the Intercreditor Agreement, and the
parties agree that this Section 10.06 shall not be amended in a manner that would prohibit
such purchase right without the prior written consent of Rhône.




          (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




          (v) Restrictions on Canadian Lenders. No Person may be a Canadian Lender
unless it (or any of its Lender Affiliates) also has a Domestic Commitment in an amount at
least equal to its Canadian Commitment, unless consented to by the Administrative Agent.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01,





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3.04, 3.05, and
10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the applicable Borrowers (at their expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 10.06(d).




          (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Loan Parties, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, absent manifest error, and the Loan Parties, the
Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the Lead
Borrower, the Canadian Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice. This Section 10.06(c) shall be construed so that the Obligations
are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2)
and 881(c)(2) of the Code and any regulations promulgated thereunder (and any other relevant or
successor provisions of the Code or such regulations).




          (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Loan Parties or the Administrative Agent, sell participations to any Person (other than a
natural person or the Loan Parties or any of the Loan Parties’ Affiliates or Subsidiaries) (each, a
“Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Domestic Commitment, Canadian Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Loan Parties, the Agents, the Lenders and the L/C Issuer shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any Participant shall agree in writing to comply with all confidentiality obligations
set forth in Section 10.07 as if such Participant was a Lender hereunder.




     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to Section
10.01 that affects such Participant. Subject to subsection (e) of this Section, the Loan
Parties agree that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 10.06(b), provided that such
Participant’s participation is recorded in the Register as set forth in Section 10.06(c) as
though it were a Lender. To the extent permitted by Law, each Participant also shall be entitled
to the benefits of Section 10.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender and such Participant’s
participation is recorded in the Register as set forth in Section 10.06(c) as though it
were a Lender..



          (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant. A
Participant shall not be entitled to the benefits of Section 3.01 unless the Lead Borrower
is notified of the participation sold to such Participant and such Participant complies, for the
benefit of the Loan Parties, with Section 3.01(e), as though it were a Lender.





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


          (h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’
notice to the Lead Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice
to the Lead Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Lead Borrower shall be entitled to appoint from among the Lenders
a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by the Lead Borrower to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C
Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit issued by Bank of America or its Lender Affiliates
outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Prime Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Prime Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America or Bank of America, N.A.
(acting through its Canada branch), as applicable, to effectively assume the obligations of Bank of
America or Bank of America, N.A. (acting through its Canada branch), as applicable, with respect to
such Letters of Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Credit Parties agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its Lender Affiliates and to its and its Lender Affiliates’ respective partners,
directors, officers, employees, agents, funding sources, attorneys, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its



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advisors) to any swap or derivative transaction relating to any Loan Party and its
obligations, (g) with the consent of the Lead Borrower or (h) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section or (y) becomes
available to any Credit Party or any of their respective Lender Affiliates on a non-confidential
basis from a source other than the Loan Parties (only if such Credit Party has no knowledge that
such source itself is not in breach of a confidentiality obligation).




     For purposes of this Section, “Information” means all information received from the Loan
Parties or any Subsidiary thereof relating to the Loan Parties or any Subsidiary thereof or their
respective businesses, other than any such information that is available to any Credit Party on a
non-confidential basis prior to disclosure by the Loan Parties or any Subsidiary thereof
(provided that if such information is furnished by a source known to such Credit Party to
be subject to a confidentiality obligation, such source, to the knowledge of such Credit Party, is
not in violation of such obligation by such disclosure). Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     Each of the Credit Parties acknowledges that (a) the Information may include material
non-public information concerning the Loan Parties or a Subsidiary, as the case may be, (b) it has
developed compliance procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable Law, including
Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Lender Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent
or the Required Lenders, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Lender Affiliate to or for the credit or the account of the
Borrowers or any other Loan Party against any and all of the Obligations existing under this
Agreement or any other Loan Document then due and owing to such Lender or the L/C Issuer,
regardless of the adequacy of the Collateral, and irrespective of whether or not such Lender or the
L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrowers or such Loan Party are owed to a branch or office of such Lender
or the L/C Issuer different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective Lender Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Lender Affiliates may have. Each Lender and
the L/C Issuer agrees to notify the Lead Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application. Notwithstanding the foregoing, any amounts of the
Canadian Loan Parties so offset shall be applied solely to the Canadian Liabilities.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent, the Canadian Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the applicable Borrowers. In determining whether the
interest contracted for, charged, or received by the Administrative Agent, the Canadian Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any



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payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.




     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous letters of intent,
commitment letters, agreements and understandings, oral or written, relating to the subject matter
hereof; provided that the Fee Letter shall survive the execution and delivery of this Agreement and
shall continue to be a binding obligation of each of the parties thereto. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic image
scan transmission (e.g., “pdf” or “tif” via e-mail) shall be as effective as delivery of a manually
executed counterpart of this Agreement.



     10.11 Survival. All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such representations and
warranties have been or will be relied upon by the Credit Parties, regardless of any investigation
made by any Credit Party or on their behalf and notwithstanding that any Credit Party may have had
notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder (other than contingent
indemnity obligations for which claims have not been asserted) shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding. Further, the provisions of Article III,
Article IX and Section 10.04 all survive and remain in full force and effect after
the expiration or termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof and repayment of all of the Obligations (including, without
limitation, those arising under Article III, Article IX and Section 10.04)
hereunder. In connection with the termination of this Agreement and the release and termination of
the security interests in the Collateral, the Agents or the Canadian Agent may require such
indemnities and collateral security as they shall reasonably deem necessary or appropriate to
protect the Credit Parties against (x) loss on account of credits previously applied to the
Obligations that may subsequently be reversed or revoked, and (y) any obligations that may
thereafter arise with respect to the Other Liabilities.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Lender delivers a notice described in Section 3.02, the Loan Parties
are required to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender or
a Non-Consenting Lender, then the Lead Borrower may, at the Borrowers’ (in the case of the Canadian
Borrower, only in respect of any Canadian Lender) 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



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consents required by, Section 10.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:





     (a) the applicable Borrowers shall have paid to the Administrative Agent the assignment
fee specified in Section 10.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees in respect
thereof and all other amounts payable to it hereunder and under the other Loan Documents in
respect thereof (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in
the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01,
such assignment will result in a reduction in such compensation or payments thereafter; and




     (d) such assignment does not conflict with applicable Laws.



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 Borrowers to
require such assignment and delegation cease to apply.




     10.14 Governing Law; Jurisdiction; Etc.


          (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.


          (b) SUBMISSION TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE LOAN PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE LOAN PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


          (c) WAIVER OF VENUE. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS



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AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE LOAN PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



          (d) SERVICE OF PROCESS. EACH LOAN PARTY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN
THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


          (e) ACTIONS COMMENCED BY LOAN PARTIES. EACH LOAN PARTY AGREES THAT ANY ACTION
COMMENCED BY ANY LOAN PARTY ASSERTING ANY CLAIM OR COUNTERCLAIM ARISING UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT SOLELY IN A COURT OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY OR ANY FEDERAL COURT SITTING THEREIN AS THE ADMINISTRATIVE AGENT
MAY ELECT IN ITS SOLE DISCRETION AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH
RESPECT TO ANY SUCH ACTION.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Loan Parties 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
Loan Document) are an arm’s-length commercial transaction between the Loan Parties, on the one
hand, and the Credit Parties, on the other hand, and each of the Loan Parties is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver
or other modification hereof or thereof); (ii) in connection with the process leading to such
transaction, each Credit Party is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Loan Parties or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) none of the Credit Parties has
assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Loan Parties
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 Loan
Document (irrespective of whether any of the Credit Parties has advised or is currently advising
any Loan Party or any of its Affiliates on other matters) and none of the Credit Parties has any
obligation to any Loan Party or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv)
the Credit Parties and their respective Lender Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Loan Parties and their respective
Lender Affiliates, and none of the Credit Parties has any obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary



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relationship; and (v) the Credit Parties 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 Loan Document) and
each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to
the extent it has deemed appropriate. Each of the Loan Parties hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against each of the Credit Parties
with respect to any breach or alleged breach of agency or fiduciary duty.




     10.17 USA PATRIOT Act Notice; Proceeds of Crime Act . Each Lender that is subject to the
Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Loan Parties that pursuant to the requirements of the Patriot Act and all applicable
“know your customer” rules, regulations and procedures applicable to such Lender in Canada), it is
required to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance
with the Act. Each Loan Party is in compliance, in all material respects, with the Patriot Act and
the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “Proceeds of
Crime Act”). No part of the proceeds of the Loans will be used by the Loan Parties, directly
or indirectly, for any purpose which would contravene or breach the Proceeds of Crime Act or for
any payments to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.



     10.18 Foreign Asset Control Regulations. Neither of the advance of the Loans, the issuance of
the Letters of Credit, 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 Loan Parties or their Affiliates (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.



     10.19
Reserved



     10.20 Time of the Essence. 



     Time is of the essence of the Loan Documents.




     10.21 Foreign Subsidiaries.



     Notwithstanding any provision of any Loan Document to the contrary, (including any provision
that would otherwise apply notwithstanding other provisions or that is the beneficiary of other
overriding language), (i) no more than 65% of the total combined voting power of all classes of
stock entitled to vote in or of any CFC shall be pledged or similarly hypothecated to guarantee or
support any Obligation of the Domestic Borrowers, (ii) no CFC shall guarantee or support any
Obligation of the Domestic Borrowers and (iii) no security or similar interest shall be granted in
the assets of any CFC, which security or similar interest guarantees or supports any Obligation of
the Domestic Borrowers. The parties agree that any pledge, guaranty or similar interest made or
granted in contravention of this Section 10.21 shall be void



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ab initio. For purposes of this Section 10.21, a CFC shall include a Subsidiary
substantially all of the assets of which consist of Equity Interests in one or more CFCs.




     10.22 Press Releases.


          (a) Each Credit Party executing this Agreement agrees that neither it nor its Lender
Affiliates will in the future issue any press releases or other public disclosure using the name of
any Lender or Agent or the Canadian Agent or such Person’s Lender Affiliates or referring to this
Agreement or the other Loan Documents without at least two (2) Business Days’ prior notice to such
Lender or Agent or Canadian Agent and without the prior written consent of such Lender or Agent or
Canadian Agent unless (and only to the extent that) such Credit Party or Lender Affiliate is
required to do so under applicable Law and then, in any event, such Credit Party or Lender
Affiliate will consult with such Lender or Agent or Canadian Agent before issuing such press
release or other public disclosure.


          (b) Each Credit Party agrees that neither it nor its Lender Affiliates will in the future
issue any press releases or other public disclosure using the name of the Parent or its
Subsidiaries without at least two (2) Business Days’ prior notice to the Administrative Agent and
without the prior written consent of the Administrative Agent unless (and only to the extent that)
such Credit Party or Lender Affiliate is required to do so under applicable Law and then, in any
event, such Credit Party or Lender Affiliate will consult with the Lead Borrower before issuing
such press release or other public disclosure. Subject to the foregoing, each Loan Party consents
to the publication by Administrative Agent or any Lender of advertising material relating to the
financing transactions contemplated by this Agreement using any Loan Party’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 Lead Borrower for review and comment prior
to the publication thereof and reasonably cooperate with Lead Borrower in connection with any
modifications requested by Lead Borrower. Administrative Agent reserves the right to provide to
industry trade organizations information necessary and customary for inclusion in league table
measurements.



     10.23 Additional Waivers.


          (a) Except as provided herein or in any other Loan Document or pursuant to any amendment or
waiver executed pursuant to Section 10.01, the Obligations (including, for avoidance of
doubt, the Canadian Liabilities) are the joint and several obligation of each Loan Party; provided
that the Canadian Borrower and the other Canadian Loan Parties shall be liable only for the
Canadian Liabilities. To the fullest extent permitted by applicable Law, the obligations of each
Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or
demand or to enforce or exercise any right or remedy against any other Loan Party under the
provisions of this Agreement, any other Loan Document or otherwise, (ii) any release of any other
Loan Party from any of the terms or provisions of, this Agreement or any other Loan Document, or
(iii) the failure to perfect any security interest in, or the release of, any of the Collateral or
other security held by or on behalf of the Administrative Agent, the Canadian Agent, the
Co-Collateral Agents or any other Credit Party.


          (b) Except as provided herein or in any other Loan Document or pursuant to any amendment or
waiver executed pursuant to Section 10.01, the Obligations of each Loan Party shall not be
subject to any reduction, limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations after the termination of the Commitments),
including any claim of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the
Obligations or otherwise. Without limiting the generality of the foregoing, the Obligations of each
Loan Party shall not be discharged or impaired or otherwise affected by the failure of any Agent or
any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement,
any other Loan Document or any other agreement, by any waiver or modification of any provision of
any thereof, any default, failure or delay, willful or otherwise, in the



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performance of any of the Obligations, or by any other act or omission that may or might in
any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a
discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in
full in cash of all of the Obligations after the termination of the Commitments).



          (c) To the fullest extent permitted by applicable Law, each Loan Party waives any defense
based on or arising out of any defense of any other Loan Party or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause of the liability of
any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations
and the termination of the Commitments. The Administrative Agent, the Canadian Agent and the other
Credit Parties may, at their election, foreclose on any security held by one or more of them by one
or more judicial or non-judicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with
any other Loan Party, or exercise any other right or remedy available to them against any other
Loan Party, without affecting or impairing in any way the liability of any Loan Party hereunder
except to the extent that all the Obligations have been indefeasibly paid in full in cash and the
Commitments have been terminated. Each Loan Party waives any defense arising out of any such
election even though such election operates, pursuant to applicable Law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of such Loan Party against any
other Loan Party, as the case may be, or any security.


          (d) Each Domestic Borrower is obligated to repay the Obligations as joint and several obligors
under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan
Party against any other Loan Party arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior
in right of payment to the prior indefeasible payment in full in cash of all the Obligations and
the termination of the Commitments. Any indebtedness of any Loan Party now or hereafter held by
any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment
in full of the Obligations but may be paid in the ordinary course of business. If any amount shall
erroneously be paid to any Loan Party on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such
amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to
the Administrative Agent or the Canadian Agent, as applicable, to be credited against the payment
of the applicable Obligations, whether matured or unmatured, in accordance with the terms of this
Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Domestic
Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations
constituting Loans made to another Borrower hereunder or other Obligations incurred directly and
primarily by any other Borrower (an “Accommodation Payment”), then the Domestic Borrower
making such Accommodation Payment shall be entitled to contribution and indemnification from, and
be reimbursed by, each of the other Domestic Borrowers (or the Canadian Borrower, if applicable) in
an amount, (x) for each of such other Domestic Borrower, equal to a fraction of such Accommodation
Payment, the numerator of which fraction is such other Domestic Borrower’s Allocable Amount and the
denominator of which is the sum of the Allocable Amounts of all of the Domestic Borrowers, or (y)
for the Canadian Borrower, in an amount equal to such Accommodation Payment. As of any date of
determination, the “Allocable Amount” of each Domestic Borrower shall be equal to the
maximum amount of liability for Accommodation Payments which could be asserted against such
Domestic Borrower hereunder without (a) rendering such Domestic Borrower “insolvent” within the
meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer
Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b)
leaving such Domestic Borrower with unreasonably small capital or assets, within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving
such Domestic Borrower unable to pay its debts as they become due within the meaning of Section 548
of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.



     Without limiting the generality of the foregoing, or of any other waiver or other provision
set forth in this Agreement, each Loan Party hereby absolutely, knowingly, unconditionally, and
expressly



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waives any and all claim, defense or benefit arising directly or indirectly under any one or
more of Sections 2787 to 2855 inclusive of the California Civil Code or any similar law of
California.




     10.24 Judgment Currency(a) . If, for the purposes of obtaining judgment in any court in any
jurisdiction with respect to this Agreement or any other Loan Document, it becomes necessary to
convert into a particular currency (the “Judgment Currency”) any amount due under this
Agreement or under any other Loan Document in any currency other than the Judgment Currency (the
“Currency Due”), then conversion shall be made at the rate of exchange prevailing on the
Business Day before the day on which judgment is given. For this purpose “rate of exchange” means
the rate at which the applicable Agent or the Canadian Agent, as applicable, is able, on the
relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its
normal practice. In the event that there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given and the date of receipt by such
Agent or the Canadian Agent, as applicable, of the amount due such Agent or the applicable Loan
Party will, on the date of receipt by such Agent or the Canadian Agent, as applicable, pay such
additional amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may
be necessary to ensure that the amount received by such Agent or the Canadian Agent, as applicable,
on such date, as applicable, is the amount in the Judgment Currency which when converted at the
rate of exchange prevailing on the date of receipt by the Canadian Agent, as applicable, is the
amount then due under this Agreement or such other Loan Document in the Currency Due. If the
amount of the Currency Due which the applicable Agent or the Canadian Agent is so able to purchase
is less than the amount of the Currency Due originally due to it, the applicable Loan Party shall
indemnify and save the Agents, the Canadian Agent, the L/C Issuer and the Lenders harmless from and
against all loss or damage arising as a result of such deficiency. This indemnity shall constitute
an obligation separate and independent from the other obligations contained in this Agreement and
the other Loan Documents, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by any Agent or the Canadian Agent, as applicable,
from time to time and shall continue in full force and effect notwithstanding any judgment or order
for a liquidated sum in respect of an amount due under this Agreement or any other Loan Document or
under any judgment or order.



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



     10.26 Attachments. The exhibits and schedules attached to this Agreement are incorporated
herein and shall be considered a part of this Agreement for the purposes stated herein, except that
in the event of any conflict between any of the provisions of such exhibits (other than the
Intercreditor Agreement) and the provisions of this Agreement, the provisions of this Agreement
shall prevail.



     10.27 Conflict of Terms. Except as otherwise provided in this Agreement or any of the other
Loan Documents by specific reference to the applicable provisions of this Agreement, if any
provision contained in this Agreement conflicts with any provision in any of the other Loan
Documents (other than the Intercreditor Agreement), the provision contained in this Agreement shall
govern and control.



[SIGNATURE PAGES FOLLOW]




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



	 	 	 	 	 
	 	QUIKSILVER AMERICAS, INC., a 

California corporation, as the Lead Borrower

 	 
	 	By:  	/s/  Bradley Sell
 	 
	 	 	Name:  	Bradley Sell 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	DC SHOES, INC., a California corporation,

as a Domestic Borrower

 	 
	 	By:  	/s/  Bradley Sell
 	 
	 	 	Name:  	Bradley Sell 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	HAWK DESIGNS, INC., a California 

corporation, as a Domestic Borrower

 	 
	 	By:  	/s/  Charles S. Exon
 	 
	 	 	Name:  	Charles S. Exon 	 
	 	 	Title:  	President & Secretary 	 
	 
	 	MERVIN MANUFACTURING, INC., a 

California corporation, as a Domestic Borrower

 	 
	 	By:  	/s/  Charles S. Exon
 	 
	 	 	Name:  	Charles S. Exon 	 
	 	 	Title:  	President & Secretary 	 
	 
	 	QS WHOLESALE, INC., a California 

corporation, as a Domestic Borrower

 	 
	 	By:  	/s/  Charles S. Exon
 	 
	 	 	Name:  	Charles S. Exon 	 
	 	 	Title:  	President & Secretary 	 



-1-









 






	 	 	 	 	 



	 	 	 	 	 
	 	QS RETAIL, INC., a California corporation,

as a Domestic Borrower

 	 
	 	By:  	/s/  Charles S. Exon
 	 
	 	 	Name:  	Charles S. Exon 	 
	 	 	Title:  	President & Secretary 	 
	 
	 	QUIKSILVER, INC., Delaware corporation,

as a Guarantor

 	 
	 	By:  	/s/  Joseph Scirocco
 	 
	 	 	Name:  	Joseph Scirocco 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	QUIKSILVER CANADA CORP., a Nova Scotia

unlimited liability company, as the
Canadian 
Borrower

 	 
	 	By:  	/s/  Charles S. Exon
 	 
	 	 	Name:  	Charles S. Exon 	 
	 	 	Title:  	President & Secretary 	 
	 
	 	QS RETAIL CANADA CORP., a Nova Scotia

unlimited liability company, as a Guarantor

 	 
	 	By:  	/s/  Charles S. Exon
 	 
	 	 	Name:  	Charles S. Exon 	 
	 	 	Title:  	President 	 
	 
	 	BANK OF AMERICA, N.A., as 

Administrative Agent and as a Co-Collateral 

Agent

 	 
	 	By:  	/s/  Roger Malouf
 	 
	 	 	Name:  	Roger Malouf 	 
	 	 	Title:  	Vice President 	 
	 
	 	BANK OF AMERICA, N.A. (acting through 

its Canada branch), as Canadian Agent

 	 
	 	By:  	/s/  Medina Sales de Andrade
 	 
	 	 	Name:  	Medina Sales de Andrade 	 
	 	 	Title:  	Vice President 	 



-2-









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Domestic 

Lender, L/C Issuer and Swing Line Lender

 	 
	 	By:  	/s/  Roger Malouf
 	 
	 	 	Name:  	Roger Malouf 	 
	 	 	Title:  	Vice President 	 
	 
	 	BANK OF AMERICA, N.A. (acting through 

its Canada branch), as a Canadian Lender, L/C

Issuer and Swing Line Lender

 	 
	 	By:  	/s/  Medina Sales de Andrade
 	 
	 	 	Name:  	Medina Sales de Andrade 	 
	 	 	Title:  	Vice President 	 
	 
	 	GENERAL ELECTRIC CAPITAL 

CORPORATION, as Co-Collateral Agent

 	 
	 	By:  	/s/  Mark J. Forti
 	 
	 	 	Name:  	Mark J. Forti 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 
	 	GENERAL ELECTRIC CAPITAL 

CORPORATION, as a Domestic Lender

 	 
	 	By:  	/s/ Mark J. Forti
 	 
	 	 	Name:  	Mark J. Forti 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 
	 	GENERAL ELECTRIC CAPITAL 

CORPORATION, as a Canadian Lender

 	 
	 	By:  	/s/ Mark J. Forti
 	 
	 	 	Name:  	Mark J. Forti 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 




-3-











 





Schedule 1.01

to Credit Agreement




BORROWERS





	1.	 	Quiksilver Americas, Inc.
	2.	 	DC Shoes, Inc.
	3.	 	Hawk Designs, Inc.
	4.	 	Mervin Manufacturing, Inc.
	5.	 	QS Wholesale, Inc.
	6.	 	QS Retail, Inc.




 









 











Schedule 1.02

to Credit Agreement




GUARANTOR OF OBLIGATIONS





	1.	 	Quiksilver, Inc.





GUARANTOR OF CANADIAN OBLIGATIONS





	1.	 	QS Retail Canada Corp.




 









 











Schedule 2.01

to Credit Agreement




DOMESTIC COMMITMENTS AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	Domestic Lender	 	Commitment	 	 	Applicable Percentage
	Bank of America, N.A.
	 	$	92,500,000	 	 	 	50	%
	 
	 	 	 	 	 	 	 	 
	General Electric Capital
Corporation
	 	$	92,500,000	 	 	 	50	%
	 
	 	 	 	 	 	 	 	 
	Total:
	 	$	185,000,000	 	 	 	100	%






CANADIAN COMMITMENTS AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	Canadian Lender	 	Commitment	 	 	Applicable Percentage
	Bank of America, N.A. (acting
through its Canada branch)
	 	$	7,500,000	 	 	 	50	%
	 
	 	 	 	 	 	 	 	 
	General Electric Capital Corporation
	 	$	7,500,000	 	 	 	50	%
	 
	 	 	 	 	 	 	 	 
	Total:
	 	$	15,000,000	 	 	 	100	%






 









 






Schedule 4.01(a)(x)

to Credit Agreement




CLOSING DATE SECURITY DOCUMENTS



1. Security Agreement (Domestic Loan Parties)



2. General Security Agreement (Quiksilver Canada Corp.)



3. General Security Agreement (QS Retail Canada Corp.)



4. Intellectual Property Security Agreement (Domestic Loan Parties)



5. Deed of Hypothec to be filed in Quebec for Quiksilver Canada Corp.



6. Deed of Hypothec to be filed in Quebec for QS Retail Canada Corp.



7. Pledge Agreement from Quiksilver, Inc., Quiksilver Americas, Inc., and DC Shoes Inc. with
respect to the Pledged Securities













 









 








Schedule 4.01(a)(xi)

to Credit Agreement




OTHER CLOSING DATE LOAN DOCUMENTS



1. Guaranty of Obligations from Guarantors which are Domestic Loan Parties



2. Guaranty of Canadian Liabilities from Guarantors which are Canadian Loan Parties



3. Perfection Certificate for all Canadian Loan Parties



4. Committed Loan Notice (Domestic)



5. Committed Loan Notice (Canadian)



6. Post Closing Agreement












 









 








Schedule 5.01

to Credit Agreement




LOAN PARTIES’ ORGANIZATIONAL INFORMATION




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Organizational ID	 	 
	 	 	Jurisdiction of	 	 	 	Number / Registry	 	FEIN / Corporate
	Name	 	Organization	 	Type of Organization	 	Number	 	Tax Number
	Quiksilver, Inc.
	 	Delaware	 	Corporation	 	2105452	 	33-0199426
	Quiksilver Americas, Inc.
	 	California	 	Corporation	 	C2670927	 	14-1914126
	DC Shoes, Inc.
	 	California	 	Corporation	 	C1844922	 	33-0610965
	Hawk Designs, Inc.
	 	California	 	Corporation	 	C2119497	 	33-0831121
	Mervin Manufacturing, Inc.
	 	California	 	Corporation	 	C1685430	 	33-0461211
	QS Wholesale, Inc.
	 	California	 	Corporation	 	C2670928	 	80-0118795
	QS Retail, Inc.
	 	California	 	Corporation	 	C2000264	 	33-0740505
	Quiksilver Canada Corp.
	 	Nova Scotia	 	Unlimited Liability	 	3096129	 	86029 6037 RC0001
	 
	 	 	 	Company	 	 	 	 
	QS Retail Canada Corp.
	 	Nova Scotia	 	Unlimited Liability	 	3192873	 	834615569--RC0001
	 
	 	 	 	Company	 	 	 	 






 









 






Schedule 5.05

to Credit Agreement




MATERIAL INDEBTEDNESS AND OTHER LIABILITIES



1. Indenture, dated as of July 22, 2005 (the “Indenture”), among Quiksilver, Inc., the
Subsidiary Guarantors party thereto and Wilmington Trust Company, as trustee.



2. Credit Agreement, dated as of July 31, 2009, among Quiksilver, Inc., Quiksilver Americas, Inc.,
the lenders party thereto and Rhône Group L.L.C., as administrative agent.



3. Credit Agreement, dated as of July 31, 2009, among Quiksilver, Inc., Mountain & Wave S.à r.l.,
the lenders party thereto and Rhône Group L.L.C., as administrative agent.



4. Indebtedness outstanding under the Societe General Agreement, and associated guaranty
obligations of Parent.



5. Indebtedness outstanding under the Pilot SAS Facility, and associated guaranty obligations of
Parent.



6. AR Financing Facility Contract, dated September 19, 2008, among Na Pali S.A.S. and GE
Factofrance SNC (as amended, restated, amended and restated, supplemented, or otherwise modified
from time to time).



7. Indebtedness of Na Pali S.A.S. in an approximate outstanding principal amount of €14,532,000
owing to Caissse Regionale de Credit Agricole Mutuel Pyrenees Gascogne in connection with a certain
term loan facility.



8. Indebtedness of Na Pali S.A.S. in an approximate outstanding principal amount of €18,159,000
owing to Societe Generale SA in connection with a certain term loan facility.



9. Indebtedness Na Pali S.A.S., Cariboo S.à r.l., Zebraska S.à r.l., and Emerald Coast S.A.S. in an
approximate outstanding principal amount of €84,853,000 owing to BNP Paribas SA, Banqu Populaire du
Sud-Ouest, Credit Agricole, HSBC, Societe Generale SA and certain other lenders under certain
uncommitted overdraft facilities.



10. Indebtedness Na Pali S.A.S. and Emerald Coast S.A.S. in an approximate outstanding amount of
€23,100,000 owing to BNP Paribas SA, Banqu Populaire du Sud-Ouest, Credit Agricole, Societe
Generale SA and certain other lenders under certain uncommitted letters of credit facilities.



11. Facilities Agreement, dated as of July 31, 2009, by and among, inter alia, Pilot SAS, a Société
par Actions Simplifiée, Na Pali, a Société par Actions Simplifiée, as borrowers, the Parent and
Credit Lyonnais SA, BNP Paribas SA and Societe Generale SA, as mandated lead arrangers, and
associated guaranty obligations of Parent.



12. Deferred purchase price obligations of approximately $43,300,000 incurred in connection with
the Ski Rossignol S.A.







 









 







13. Indebtedness of Quiksilver Japan K.K. in an approximate outstanding principal amount of
¥1,600,000,000 owing to Tokyo Mitsubishi UFJ in connection with a certain short-term loan facility,
and associated guaranty obligations of Parent of approximately $5,000,000.



14. Indebtedness of Quiksilver Japan K.K. in an approximate outstanding principal amount of
¥200,000,000 owing to Tokyo Mitsubishi UFJ in connection with a certain overdraft facility, and
associated guaranty obligations of Parent.



15. Indebtedness of Quiksilver Japan K.K. in an approximate outstanding principal amount of
¥1,000,000,000 owing to Resona in connection with a certain short-term loan facility, and
associated guaranty obligations of Parent.



16. Indebtedness of UG Manufacturing Co. Pty in an approximate potential principal amount of
AUD$22,000,000 owing to Westpac Banking Corporation in connection with a certain commercial bill
line, trade finance, letters of credit, overdraft and short-term loan facilities.














 









 








Schedule 5.08(b)(1)

to Credit Agreement




OWNED REAL ESTATE




	 	 	 	 	 
	Loan Party	 	Property Address	 	Lien / Mortgage Holders
	QS Retail, Inc.

	 	59-176 Kamehameha Highway Sunset Beach, HI 96712
	 	N/A






 









 






Schedule 5.08(b)(2)

to Credit Agreement




LEASED REAL ESTATE




	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	Quiksilver, Inc.
	 	c/o Quiksilver, Inc.	 	Chief Executive Office
	Quiksilver Americas, Inc.
	 	15202 Graham Street 
	 	 
	 
	 	Huntington Beach, CA 92649	 	 
	 
	 	 	 	 
	DC Shoes, Inc.
	 	DC Shoes, Inc.
	 	Chief Executive Office
	 
	 	1255 & 1333 Keystone Way 
	 	 
	 
	 	Vista, CA 92081	 	 
	 
	 	 	 	 
	Mervin Manufacturing, Inc.
	 	155 Business Park Loop	 	Chief Executive Office
	 
	 	Sequim, WA 98382	 	 
	 
	 	 	 	 
	DC Shoes, Inc.
	 	1496 West Red Hawk Trail	 	Marketing Facility / Office
	 
	 	Park City, UT 84098	 	 
	 
	 	 	 	 
	Quiksilver, Inc.
	 	c/o Quiksilver, Inc.	 	Books and Records
	 
	 	15362 Graham Street	 	 
	 
	 	Huntington Beach, CA 92649	 	 
	 
	 	 	 	 
	Quiksilver, Inc.
	 	5600 Argosy Circle	 	Books and Records
	 
	 	Suite 100 - 300	 	 
	 
	 	Huntington Beach, CA 92649	 	 
	 
	 	 	 	 
	Quiksilver Canada Corp.
	 	c/o Quiksilver Canada	 	Books and Records
	 
	 	140-890 Harbourside Drive	 	 
	 
	 	North Vancouver, BC V7P 3T7	 	 
	 
	 	Canada	 	 
	 
	 	 	 	 
	Quiksilver Canada Corp.
	 	Quiksilver Toronto	 	Regional Office
	 
	 	67 Mowat Ave., Suite 249	 	 
	 
	 	Toronto, Ontario	 	 
	 
	 	M6K3E3	 	 
	 
	 	Canada	 	 
	 
	 	 	 	 
	Quiksilver Canada Corp.
	 	Econo Moving & Storage	 	Storage Facility
	 
	 	991 West 1st St	 	 
	 
	 	North Vancouver, BC V7P 1A4	 	 
	 
	 	Canada	 	 
	 
	 	 	 	 
	QS Wholesale, Inc.
	 	c/o Quiksilver Wholesale	 	Inventory
	 
	 	11310 Cantu Galleano Ranch Rd.	 	 
	 
	 	Mira Loma, CA 91752	 	 
	 
	 	 	 	 
	Quiksilver, Inc.
	 	530 Seventh Avenue	 	Inventory
	 
	 	Unit 1201	 	 
	 
	 	New York, NY 10018	 	 
	 
	 	 	 	 
	Mervin Manufacturing, Inc.
	 	169 Business Park Loop	 	Inventory
	
	 	Sequim, WA 98382	 	 
	 
	 	 	 	 
	Mervin Manufacturing, Inc.
	 	71 Ruths Place, Unit 2 & 3	 	Inventory
	 
	 	Sequim, WA 98382	 	 
	 
	Quiksilver Canada Corp.
	 	174 Spadina Avenue	 	Regional Office
	 
	 	Suite 600	 	 
	 
	 	Toronto, Ontario, Canada	 	 
	 
	 	 	 	 
	Quiksilver Canada Corp.
	 	15 Notre-Dame St. East, 2nd floor 	 	Regional Office
	 
	 	Montreal, Canada	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#22 QUIKSILVER - MAUI	 	Retail Store
	 
	 	851 Front Street	 	 
	 
	 	Lahaina, HI 96761	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#23 QS YOUTH - PARK CITY	 	Retail Store
	 
	 	577 Main Street Suite B	 	 
	 
	 	Park City, UT 84060	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#24 DC - SOHO	 	Retail Store
	 
	 	109-111 Spring Street	 	 
	 
	 	New York, NY 10012	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#26 QUIKSILVER - MIAMI	 	Retail Store
	 
	 	750 Collins Ave.	 	 
	 
	 	Miami Beach, FL 33139	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#27 QUIKSILVER- UNIVERSAL CITYWALK	 	Retail Store
	 
	 	1000 Universal Studios Blvd.	 	 
	 
	 	Space V114	 	 
	 
	 	Universal City, CA 91608	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#28 QUIKSILVER - SEATTLE	 	Retail Store
	 
	 	409 Pike Street	 	 
	 
	 	Seattle, WA 98101	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#29 ROXY - SOUTH COAST PLAZA	 	Retail Store
	 
	 	3333 Bristol Street	 	 
	 
	 	Space 2031	 	 
	 
	 	Costa Mesa, CA 92626	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#30 ROXY - GARDEN STATE PLAZA	 	Retail Store
	 
	 	1 Garden State Plaza	 	 
	 
	 	Space 2210	 	 
	 
	 	Routes 4 & 17	 	 
	 
	 	Paramus, NJ 07652	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#30 QUIKSILVER - GARDEN STATE PLAZA	 	Retail Store
	 
	 	1 Garden State Plaza	 	 
	 
	 	Space 2210	 	 
	 
	 	Routes 4 & 17	 	 
	 
	 	Paramus, NJ 07652	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#32 QUIKSILVER - WAIKIKI (IMP)	 	Retail Store
	 
	 	2330 Kalakaua Ave.	 	 
	 
	 	Honolulu, HI 96815	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#35 QUIKSILVER - ARDEN FAIR	 	Retail Store
	 
	 	1689 Arden Way	 	 
	 
	 	Space 2182	 	 
	 
	 	Sacramento, CA 95815	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#38 QUIKSILVER - THE GATEWAY	 	Retail Store
	 
	 	136 S. Rio Grande	 	 
	 
	 	Salt Lake City, UT 84101	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#39 QUIKSILVER - THE GATEWAY	 	Retail Store
	 
	 	136 S. Rio Grande	 	 
	 
	 	Salt Lake City, UT 84101	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#40 QUIKSILVER -  CHANDLER FASHION SQUARE	 	Retail Store
	 
	 	3111 W. Chandler Blvd.	 	 
	 
	 	Space 2192	 	 
	 
	 	Chandler, AZ 85226	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#41 QUIKSILVER - MALL OF AMERICA	 	Retail Store
	 
	 	60 E. Broadway	 	 
	 
	 	Space N-144	 	 
	 
	 	Bloomington, MN 55425	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#42 QUIKSILVER - THE GROVE	 	Retail Store
	 
	 	189 The Grove Drive	 	 
	 
	 	Space G-80	 	 
	 
	 	Los Angeles, CA 90036	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#43 QS YOUTH - THE GROVE	 	Retail Store
	 
	 	189 The Grove Drive	 	 
	 
	 	Space O-20	 	 
	 
	 	Los Angeles, CA 90036	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#44 QUIKSILVER - STONERIDGE MALL	 	Retail Store
	 
	 	2221 Stoneridge Mall Rd.	 	 
	 
	 	Pleasanton, CA 94588	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#48 QUIKSILVER - THE MALL AT MILLENIA	 	Retail Store
	 
	 	4200 Conroy Road	 	 
	 
	 	Suite 213	 	 
	 
	 	Orlando, FL 32839	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#49 QUIKSILVER - THE AVENUES MALL	 	Retail Store
	 
	 	10300 South Side Blvd. #249	 	 
	 
	 	Jacksonville, FL 32256	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#50 QUIKSILVER - TIMES SQUARE	 	Retail Store
	 
	 	3 Times Square	 	 
	 
	 	New York, NY 10036	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#51 QUIKSILVER - VALLEY FAIR	 	Retail Store
	 
	 	2855 Stevens Creek Blvd., #2505	 	 
	 
	 	Santa Clara, CA  95050	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#52 QUIKSILVER - CHARLESTON	 	Retail Store
	 
	 	299 King Street	 	 
	 
	 	Charleston, SC 29401	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#53 QUIKSILVER - WHALERS VILLAGE MAUI	 	Retail Store
	 
	 	2435 Kaanapali Parkway, #K1	 	 
	 
	 	Maui, HI 96761	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#53 ROXY - WHALERS VILLAGE MAUI	 	Retail Store
	 
	 	2435 Kaanapali Parkway, #K1	 	 
	 
	 	Maui, HI 96761	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#54 QUIKSILVER - LAS VEGAS	 	Retail Store
	 
	 	3200 Las Vegas Blvd. South #1250	 	 
	 
	 	Las Vegas, NV 89109	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#55 QUIKSILVER - LINCOLN ROAD	 	Retail Store
	 
	 	1023 Lincoln Road	 	 
	 
	 	Miami Beach, FL  33139	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#56 QUIKSILVER - GASLAMP	 	Retail Store
	 
	 	402 5th Ave	 	 
	 
	 	San Diego, CA 92101	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	# 57 QUIKSILVER - DOWNTOWN DISNEY	 	Retail Store
	 
	 	1570 South Disneyland Drive # 103	 	 
	 
	 	Anaheim, CA 92802	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	# 58 QUIKSILVER - HOLLYWOOD, FL	 	Retail Store
	 
	 	5780 Seminole Way	 	 
	 
	 	Hollywood, FL 33314	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	# 59 QUIKSILVER - SANTA MONICA	 	Retail Store
	 
	 	1422 3rd Street Promenade	 	 
	 
	 	Santa Monica, CA 90401	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#60 QUIKSILVER - TAMPA	 	Retail Store
	 
	 	2223 N. Westshore # 182	 	 
	 
	 	Tampa, FL 33607	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#62 QUIKSILVER - BROADWAY	 	Retail Store
	 
	 	519 Broadway	 	 
	 
	 	New York, NY 10012	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#64 QUIKSILVER - ASPEN	 	Retail Store
	 
	 	428 East Hyman	 	 
	 
	 	Aspen, CO 81611	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#65 QS YOUNG MENS - SOUTH COAST PLAZA	 	Retail Store
	 
	 	3333 Bristol Street Space #2007	 	 
	 
	 	Costa Mesa, CA 92626	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#67 QUIKSILVER  - POWELL	 	Retail Store
	 
	 	207 Powell Street	 	 
	 
	 	San Francisco, CA 94102	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#68 QUIKSILVER  - ATLANTIC CITY	 	Retail Store
	 
	 	1 Atlantic Ocean Space BW218	 	 
	 
	 	Atlantic City, NJ 08401	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#69 QUIKSILVER  - MIRACLE MILE SHOPS	 	Retail Store
	 
	 	3663 Las Vegas Blvd South Space H-123	 	 
	 
	 	Las Vegas, NV 89109	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#70 QUIKSILVER  - WAIKIKI BEACH WALK	 	Retail Store
	 
	 	270 Lewers St. suite 101	 	 
	 
	 	Honolulu, HI 96815	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#72 QUIKSILVER  - PALM DESERT	 	Retail Store
	 
	 	73-595 El Paseo Suite 1216	 	 
	 
	 	Palm Desert, CA 92260	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#73 QUIKSILVER  - CITY PLACE	 	Retail Store
	 
	 	550 S Rosemary Ave. Suite 164	 	 
	 
	 	West Palm Beach, FL 33401	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#74 QUIKSILVER  - TYLER MALL	 	Retail Store
	 
	 	2279 Galleria @ Tyler Space EU11	 	 
	 
	 	Riverside, CA 92503	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#75 ROXY - SCOTTSDALE	 	Retail Store
	 
	 	7014-590 E. Camelback Rd	 	 
	 
	 	Scottsdale, AZ 85251	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#76 DC - PARK CITY	 	Retail Store
	 
	 	577 Main St. Suite C	 	 
	 
	 	Park City UT 84060	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#77 QUIKSILVER - BRANDON MALL	 	Retail Store
	 
	 	459 Brandon Town Ctr. Space 925	 	 
	 
	 	Brandon, FL 33511	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#78 QUIKSILVER - ST. CATHERINE	 	Retail Store
	 
	 	1192 Rue Ste-Catherine Ouest	 	 
	 
	 	Montreal, Quebec H3Z-2P9 Canada	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#80 QUIKSILVER - VINTAGE FAIR	 	Retail Store
	 
	 	3401 Dale Road #T09	 	 
	 
	 	Modesto, CA 95356	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#81 QUIKSILVER - BOULDER	 	Retail Store
	 
	 	1122 Pearl St.	 	 
	 
	 	Boulder, CO 80302	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#82 ROXY/QUIKSILVER - LA JOLLA	 	Retail Store
	 
	 	1111 Prospect St.	 	 
	 
	 	La Jolla, CA 92037	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#83 QUIKSILVER - TEMPE MARKET PLACE	 	Retail Store
	 
	 	2000 E. Rio Salado Pkwy  Suite 1124	 	 
	 
	 	Tempe, AZ 85281	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#84 QUIKSILVER - QUEEN'S MARKET PLACE	 	Retail Store
	 
	 	201 Waikoloa Beach Dr. Suite F14-16	 	 
	 
	 	Waikoloa, HI 96738	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#85 ROXY/QUIKSILVER - FLORIDA MALL	 	Retail Store
	 
	 	8001 S. Orange Blossom Trail Space 306B	 	 
	 
	 	Orlando, FL 32809	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#86 QUIKSILVER - TORONTO	 	Retail Store
	 
	 	339 Queen St. West	 	 
	 
	 	Toronto, Ontario M5V2A4 Canada	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#87 ROXY/QUIKSILVER - TROY	 	Retail Store
	 
	 	2800 W. Big Beaver Space W 314 & W 312	 	 
	 
	 	Troy, Michigan 48084	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#88 QUIKSILVER - VANCOUVER	 	Retail Store
	 
	 	820 Granville St.	 	 
	 
	 	Vancouver, British Columbia V6Z1K3 Canada	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#89 QUIKSILVER - FRESNO FASHION FAIRE	 	Retail Store
	 
	 	645 E. Shaw Ave.  #101 Space E - 08	 	 
	 
	 	Fresno, CA 93710	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#90 ROXY - WAILEA	 	Retail Store
	 
	 	3750 Wailea Alanui  Space B - 3	 	 
	 
	 	Wailea, HI 96753	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#91 QUIKSILVER - PASADENA	 	Retail Store
	 
	 	380 E. Colorado Blvd Suite 149	 	 
	 
	 	Pasadena, CA  91101	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#92 QUIKSILVER - PARK CITY	 	Retail Store
	 
	 	570 Main St	 	 
	 
	 	Park City, UT 84060	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#93 ROXY/QUIKSILVER - TOWN SQUARE	 	Retail Store
	 
	 	6611 Las Vegas Blvd. South Bldg. G A-157	 	 
	 
	 	Las Vegas, NV 89119	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#94 QUIKSILVER - ANNAPOLIS	 	Retail Store
	 
	 	2002 Annapolis Mall	 	 
	 
	 	Annapolis, MD 21401	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#95 DC- MELROSE	 	Retail Store
	 
	 	8025 Melrose Ave	 	 
	 
	 	Los Angeles, CA 90046	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#96 QUIKSILVER - WAILEA	 	Retail Store
	 
	 	3750 Wailea Alanui Space B- 45	 	 
	 
	 	Wailea, Hawaii 96753	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#97 QUIKSILVER - WESTGATE	 	Retail Store
	 
	 	6770 Sunrise Blvd  Suite G-101	 	 
	 
	 	Glendale, AZ 85305	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#98 QUIKSILVER - KAI KANE	 	Retail Store
	 
	 	5-5088 Kuhio Highway	 	 
	 
	 	Hanalei, Hawaii 96714	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#99 QUIKSILVER - OAKRIDGE CENTER	 	Retail Store
	 
	 	650 West 41st Ave Ste 272A	 	 
	 
	 	Vancouver, British Columbia V5Z 2M9 Canada	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#100 QUIKSILVER - BANFF	 	Retail Store
	 
	 	114 Banff Ave	 	 
	 
	 	Banff, Alberta, Canada T1L 1A1	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#101 QUIKSILVER - LAVAL	 	Retail Store
	 
	 	3003 Blvd le Carrefour, #T030B	 	 
	 
	 	Chomedey, Quebec, Canada H7T 1C7	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#102 QUIKSILVER - SCOTTSDALE	 	Retail Store
	 
	 	7014 E Camelback Rd Ste 2117	 	 
	 
	 	Scottsdale, AZ 85251	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#103 DC - IRVINE SPECTRUM	 	Retail Store
	 
	 	71 Fortune Dr. Suite 824	 	 
	 
	 	Irvine, CA 92618	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#104 QUIKSILVER - FIFTH AVENUE	 	Retail Store
	 
	 	587 Fifth Ave.	 	 
	 
	 	New York, NY 10017	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#105 QUIKSILVER YOUTH - THE OAKS MALL	 	Retail Store
	 
	 	196 West Hillcrest Drive  Suite #95	 	 
	 
	 	Thousand Oaks, CA 91360	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#106 QUIKSILVER - AVENTURA MALL	 	Retail Store
	 
	 	19501 Biscayne Blvd.  #1265	 	 
	 
	 	Aventura, FL 33180	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#107 QUIKSILVER - POLO PARK	 	Retail Store
	 
	 	1485 Portage Ave Space 0240 A	 	 
	 
	 	Winnipeg, Manitoba R3G 0W4	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#109 DC - MIRACLE MILE	 	Retail Store
	 
	 	3663 Las Vegas Blvd. South #D4	 	 
	 
	 	Las Vegas, NV 89109	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#801 QUIKSILVER FACTORY STORE - SAWGRASS	 	Factory Store
	 
	 	12801 West Sunrise Blvd., #811	 	 
	 
	 	Sunrise, FL  33323	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#802 QUIKSILVER FACTORY STORE - ARUNDEL	 	Factory Store
	 
	 	7000 Arundel Mills Circle, #423	 	 
	 
	 	Hanover, MD  21076	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#803 QUIKSILVER FACTORY STORE - CORONA	 	Factory Store
	 
	 	530 Hidden Valley Parkway #101	 	 
	 
	 	Corona, CA  92879	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#805 QUIKSILVER FACTORY STORE - PROVO	 	Factory Store
	 
	 	2255 North University Parkway, #22	 	 
	 
	 	Provo, UT  84604	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#806 QUIKSILVER FACTORY STORE - CENTRALIA	 	Factory Store
	 
	 	1324 Lum Road	 	 
	 
	 	Centrailia, WA  98531	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#807 QUIKSILVER FACTORY STORE - PHOENIX	 	Factory Store
	 
	 	4250 West Anthem Way, #715	 	 
	 
	 	Phoenix, AZ  85086	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#808 QUIKSILVER FACTORY STORE - LINCOLN CITY 	 	Factory Store
	 
	 	1500 SE Devils Lake Road, #114	 	 
	 
	 	Lincoln City, OR  97367	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#810 QUIKSILVER FACTORY STORE - BARSTOW	 	Factory Store
	 
	 	2796 Tanger Way Suite204	 	 
	 
	 	Barstow, CA  92311	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#811 QUIKSILVER FACTORY STORE - SAN MARCOS	 	Factory Store
	 
	 	4015 Interstate 35 South Suite 880	 	 
	 
	 	San Marcos, TX  78666	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#815 QUIKSILVER FACTORY STORE - CABAZON	 	Factory Store
	 
	 	48650 Seminole Drive, #236	 	 
	 
	 	Cabazon, CA  92230	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#817 QUIKSILVER FACTORY STORE - DAWSONVILLE	 	Factory Store
	 
	 	800 Highway 400 South, #850	 	 
	 
	 	Dawsonville, GA  30534	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#818 QUIKSILVER FACTORY STORE - QUEENSTOWN	 	Factory Store
	 
	 	407 Outlet Center Drive	 	 
	 
	 	Queenstown, MD  21658	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#821 QUIKSILVER FACTORY STORE - WRENTHAM	 	Factory Store
	 
	 	1 Premium Outlets Blvd., #475	 	 
	 
	 	Wrentham, MA 02093	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#822 QUIKSILVER FACTORY STORE - PRIMM	 	Factory Store
	 
	 	32100 Las Vegas Blvd., #306	 	 
	 
	 	Primm, NV  89019	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#823 QUIKSILVER FACTORY STORE - COMMERCE	 	Factory Store
	 
	 	100 Citadel Drive, #434	 	 
	 
	 	Commerce, CA  90040	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#825 QUIKSILVER FACTORY STORE - ELLENTON	 	Factory Store
	 
	 	5131 Factory Shops Blvd.	 	 
	 
	 	Ellenton, FL  34222	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#826 QUIKSILVER FACTORY STORE - CENTRAL VALLEY	 	Factory Store
	 
	 	 	 	 
	 
	 	954 Grapevine Court	 	 
	 
	 	Central Valley, NY  10917	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#828 QUIKSILVER FACTORY STORE - ELIZABETH	 	Factory Store
	 
	 	651 Kapkowski Road, #2222	 	 
	 
	 	Elizabeth, NJ 07201	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#829 QUIKSILVER FACTORY STORE - CLINTON	 	Factory Store
	 
	 	20 Killingworth Turnpike, #160	 	 
	 
	 	Clinton, CT 06413	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#830 QUIKSILVER FACTORY STORE - MIAMI	 	Factory Store
	 
	 	11401 NW 12 Street, #289	 	 
	 
	 	Miami, FL  33172	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#831 QUIKSILVER FACTORY STORE - LAS VEGAS	 	Factory Store
	 
	 	605 South Grand Central Parkway, #1247	 	 
	 
	 	Las Vegas, NV  89106	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#833 QUIKSILVER FACTORY STORE - GILROY	 	Factory Store
	 
	 	681 Leavesley Road, Space C110	 	 
	 
	 	Gilroy, CA 95020	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#834 QUIKSILVER FACTORY STORE - LAKEWOOD	 	Factory Store
	 
	 	14500 West Colfax Avenue Space #447	 	 
	 
	 	Lakewood, CO 80401	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#835 QUIKSILVER FACTORY STORE - TULALIP	 	Factory Store
	 
	 	10600 Quil Ceda Blvd. Suite #359	 	 
	 
	 	Tulalip, WA 98271	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#836 QUIKSILVER FACTORY STORE - ONTARIO	 	Factory Store
	 
	 	1 East Mills Circle Suite 123	 	 
	 
	 	Ontario, CA 91764	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#837 QUIKSILVER FACTORY STORE - BELZ	 	Factory Store
	 
	 	7400 Las Vegas Blvd S Space #B32	 	 
	 
	 	Las Vegas, NV 89123	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#838 DC FACTORY STORE - PISMO	 	Factory Store
	 
	 	333 Five cities Drive Suite 126	 	 
	 
	 	Pismo Beach, CA 93449	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#839 QUIKSILVER FACTORY STORE - WOODBURN	 	Factory Store
	 
	 	1001 Arney Rd Suite 422	 	 
	 
	 	Woodburn, OR 97071	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#840 DC FACTORY STORE - TULALIP	 	Factory Store
	 
	 	10600 Quil Ceda Blvd #316	 	 
	 
	 	Tulalip, WA 98271	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#841 QUIKSILVER FACTORY STORE - LAUGHLIN	 	Factory Store
	 
	 	1955 S. Casino Dr. Space 202	 	 
	 
	 	Laughlin, NV 89029	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#842 QUIKSILVER FACTORY STORE - ROUND ROCK	 	Factory Store
	 
	 	4401 North & I-35 #824	 	 
	 
	 	Round Rock, TX 78664	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#843 DC FACTORY STORE- CAMARILLO	 	Factory Store
	 
	 	610 E. Ventura Blvd Suite 1317	 	 
	 
	 	Camarillo, CA 93010	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#844 DC FACTORY STORE - VEGAS	 	Factory Store
	 
	 	705 Grand Central Pkwy Suite 1043	 	 
	 
	 	Las Vegas, NV 89106	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#845 DC FACTORY STORE - PRIMM	 	Factory Store
	 
	 	32100 Las Vegas Blvd South Suite 416	 	 
	 
	 	Primm, NV 89019	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#846 DC FACTORY STORE - TULARE	 	Factory Store
	 
	 	1549 Rethford Suite C-75	 	 
	 
	 	Tulare, CA 93274	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#847 DC FACTORY STORE - COMMERCE	 	Factory Store
	 
	 	100 Citadel Drive South Suite 432	 	 
	 
	 	Commerce City, CA 90040	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#848 QUIKSILVER FACTORY STORE - FOLSOM	 	Factory Store
	 
	 	13000 Folsom Blvd. Ste 302/303	 	 
	 
	 	Folsom, CA 95630	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#848 DC FACTORY STORE - FOLSOM	 	Factory Store
	 
	 	13000 Folsom Blvd. Ste 302, 303	 	 
	 
	 	Folsom, CA 95630	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#849 QUIKSILVER  FACTORY STORE - NEW	 	Factory Store
	 
	 	WESTMINSTER	 	 
	 
	 	805 Boyd Street Unit D120	 	 
	 
	 	Queensborough Shopping Centre	 	 
	 
	 	New Westminster, BC V3M5X2	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#850 DC  FACTORY STORE - EL PASO	 	Factory Store
	 
	 	7051 South Desert Blvd Suite D 425	 	 
	 
	 	Canutillo, TX 79835	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#851 DC FACTORY STORE - SAN MARCOS	 	Factory Store
	 
	 	4015 I-35, Suite 1020	 	 
	 
	 	San Marcos, TX 78666	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#852 DC FACTORY STORE - GILROY	 	Factory Store
	 
	 	681 Leavesley Rd Ste 270	 	 
	 
	 	Gilroy, CA 95020	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#853 QUIKSILVER FACTORY STORE - EL PASO	 	Factory Store
	 
	 	Sun Valley Factory Shoppes	 	 
	 
	 	7051 South Desert Blvd. STE A 137	 	 
	 
	 	Canutillo, TX 79835	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#854 BOARDRIDERS - OAKVIEW	 	Factory Store
	 
	 	3001 South 144th St. Space F-04	 	 
	 
	 	Omaha, NE 68144	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#855 BOARDRIDERS - HAMILTON PLACE	 	Factory Store
	 
	 	2100 Hamilton Place Space 125B	 	 
	 
	 	Chattanooga, TN 37421	 	 






 









 






	 	 	 	 	 
	Loan Party / Lessee	 	Address	 	Type of Property
	QS Retail, Inc.
	 	#856 BOARDRIDERS - THE AVENUES MALL	 	Factory Store
	 
	 	2615 Medical Center Pkwy Ste 1355	 	 
	 
	 	Murfreesboro, TN 37129	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#857 QUIKSILVER FACTORY STORE - RIO GRANDE	 	Factory Store
	 
	 	5001 E. Expressway 83 Suite 319	 	 
	 
	 	Mercedes, TX 78570	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#858 QUIKSILVER FACTORY STORE - POTOMAC MILLS	 	Factory Store
	 
	 	 	 	 
	 
	 	2700 Potomac Mills Cir. Suite 242	 	 
	 
	 	Prince Williams County, VA 22192	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#859 DC FACTORY STORE - LAUGHLIN	 	Factory Store
	 
	 	1955 South Casino Dr  Suite 248	 	 
	 
	 	Laughlin, NV 89029	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#860 QUIKSILVER FACTORY STORE - HOUSTON	 	Factory Store
	 
	 	29300 Hempstead Road Suite 610	 	 
	 
	 	Cypress, TX 77433	 	 
	 
	 	 	 	 
	QS Retail, Inc.
	 	#861 DC FACTORY STORE - DOLPHIN MALL	 	Factory Store
	 
	 	11401 N. W. 12th Street #289	 	 
	 
	 	Miami, Florida 33172	 	 
	 
	 	 	 	 
	QS Retail Canada Corp.
	 	#862 DC FACTORY STORE - NEW WESTMINSTER	 	Factory Store
	 
	 	805 Boyd St. #F180	 	 
	 
	 	New Westminster, BC V3M5X2	 	 
	 
	 	 	 	 
	Quiksilver Canada Corp.
	 	6455 Macleod Trail	 	Retail Store
	 
	 	South Calgary, Alberta, Canada	 	 
	 
	 	 	 	 
	DC Shoes, Inc.
	 	2620 Progress Street	 	Other
	 
	 	Vista, California 92010	 	 







 












 







Schedule 5.10

to Credit Agreement




INSURANCE




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Limit
	Insurance	 	Broker	 	Insurer	 	Coverage Definition	 	Deductible
	Global
	 	 	 	 	 	 	 	 
	 
	Foreign Liability

	 	Willis
	 	Chubb
	 	Global Difference in Conditions/ Difference in Limits general, auto, product, operations liability
	 	Limit: $1M 

Ded: $0
	 
	 	 	 	 	 	 	 	 
	Umbrella Liability

	 	Willis
	 	Chubb, Liberty Mutual
	 	Third party general, auto, product, operations liability
	 	Limit: $40M 

Ded: $0
	 
	 	 	 	 	 	 	 	 
	Athlete AD&D

	 	Willis
	 	ACE
	 	Athlete accidental death and dismemberment
	 	Limit: $250K/$150K 

Ded: $0
	 
	 	 	 	 	 	 	 	 
	D&O / Fiduciary

	 	Willis
	 	Chubb primary, various excess carriers
	 	Directors and officers management and fiduciary liability
	 	Limit: $50M 

Ded: $1M ($0 for Side-A)
	 
	 	 	 	 	 	 	 	 
	U.S. and Canada
	 	 	 	 	 	 	 	 
	 
	Property

	 	Willis
	 	FM Global
	 	First party building, tenant improvement, business interruption
	 	Limit: $200M 

Ded: $10K
	 
	 	 	 	 	 	 	 	 
	General Liability

	 	Willis
	 	Chubb
	 	Third party general and product liability
	 	Limit: $1M 

Ded: $25K, $100K/$350K
	 
	 	 	 	 	 	 	 	 
	Auto

	 	Willis
	 	Chubb
	 	Third party auto bodily and property damage liability, and first party auto damage
	 	Limit: $1M 

Ded: $1K
	 
	 	 	 	 	 	 	 	 
	Computer and Information Security Liability

	 	Willis
	 	Lloyd’s of London
	 	Third party loss or compromise of sensitive customer data
	 	Limit: $5M 

Ded: $100K
	 
	 	 	 	 	 	 	 	 
	Marine Cargo

	 	Expeditors
	 	 	 	First party product marine cargo loss
	 	Limit: $2M 

Ded: $1K
	 
	 	 	 	 	 	 	 	 
	Work Comp

	 	Willis
	 	ACE
	 	Statutory employee work injury
	 	Limit: Statutory 


Ded: $500K






 









 






Schedule 5.13

to Credit Agreement




SUBSIDIARIES; EQUITY INTERESTS



(a) Loan Party Subsidiaries:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Authorized	 	Issued	 	 
	 	 	 	 	 	 	Equity	 	Equity	 	Ownership
	Direct Parent	 	Subsidiary	 	Jurisdiction	 	Interests	 	Interests	 	Percentage
	Quiksilver, Inc.
	 	Quiksilver Americas, Inc.	 	California	 	1,000	 	1,000	 	 	100	%
	Quiksilver, Inc.
	 	Mountain & Wave S.à r.l.	 	Luxembourg	 	N/A	 	2,739,552	 	 	100	%
	Quiksilver, Inc.
	 	Quiksilver Greater China Ltd.	 	Hong Kong	 	10,000	 	10,000	 	 	100	%
	Quiksilver Americas, Inc.
	 	Q.S. Optics, Inc.*	 	California	 	7,000	 	800	 	 	100	%
	Quiksilver Americas, Inc.
	 	Quiksilver Wetsuits, Inc.*	 	California	 	1,000,000	 	660	 	 	100	%
	Quiksilver Americas, Inc.
	 	Mt. Waimea, Inc.*	 	California	 	100,000	 	1,000	 	 	100	%
	Quiksilver Americas, Inc.
	 	Quiksilver Entertainment, Inc.*	 	California	 	1,000	 	1,000	 	 	100	%
	Quiksilver Americas, Inc.
	 	DC Shoes, Inc.	 	California	 	100,000,000	 	6,000,000	 	 	100	%
	Quiksilver Americas, Inc.
	 	Fidra, Inc.*	 	California	 	1,000	 	100	 	 	100	%
	Quiksilver Americas, Inc.
	 	Hawk Designs, Inc.	 	California	 	100	 	100	 	 	100	%
	Quiksilver Americas, Inc.
	 	Mervin Manufacturing, Inc.	 	California	 	100,000	 	10,000	 	 	100	%
	Quiksilver Americas, Inc.
	 	QS Wholesale, Inc.	 	California	 	1,000	 	1,000	 	 	100	%
	Quiksilver Americas, Inc.
	 	QS Retail, Inc.	 	California	 	1,000	 	100	 	 	100	%
	Quiksilver Americas, Inc.
	 	QS Mexico Holdings	 	Delaware	 	N/A	 	N/A	 	 	60	%
	DC Shoes, Inc.
	 	DC Direct, Inc.*	 	California	 	100,000	 	N/A	 	 	100	%
	Quiksilver Canada Corp.
	 	QS Retail Canada Corp.	 	Nova Scotia	 	100,000,000	 	100	 	 	100	%








 




			
	*	 	Indicates Immaterial Subsidiary as of the Closing Date
	 
	(b)	 	Equity Investments:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Authorized	 	Issued	 		 	
	 	 	 	 	 	 	Equity	 	Equity	 	Ownership
	Holder	 	Issuer	 	Jurisdiction	 	Interests	 	Interests	 	Percentage
	Quiksilver Americas, Inc.

	 	QS Mexico Holdings
	 	Delaware
	 	N/A
	 	N/A
	 	 	60%1	 








 




			
	1	 	40% held by PBM International, LLC, a
Delaware limited liability company.




 









 












(c) Loan Party:




	 	 	 	 	 	 	 
	 	 	Direct	 	Ownership
	Loan Party	 	Parent	 	Percentage
	Quiksilver Americas, Inc.
	 	Quiksilver, Inc.	 	 	100	%
	QS Retail, Inc.
	 	Quiksilver Americas, Inc.	 	 	100	%
	QS Wholesale, Inc.
	 	Quiksilver Americas, Inc.	 	 	100	%
	DC Shoes, Inc.
	 	Quiksilver Americas, Inc.	 	 	100	%
	Hawk Designs, Inc.
	 	Quiksilver Americas, Inc.	 	 	100	%
	Mervin Manufacturing, Inc.
	 	Quiksilver Americas, Inc.	 	 	100	%
	Quiksilver Canada Corp.
	 	Quiksilver Deluxe S.à r.l.	 	 	100	%
	QS Retail Canada Corp.
	 	Quiksilver Canada Corp.	 	 	100	%






 









 






Schedule 5.21(a)

to Credit Agreement




DDAs



Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission. The omissions have been indicated by asterisks
(“*****”), and the omitted text has been filed separately with the Securities and Exchange
Commission.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name of Bank or Financial	 	 	 	 
	Loan Party	 	Institution	 	Account Number	 	Type of Account
	Quiksilver, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Quiksilver Americas, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Wholesale, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	DC Shoes, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Hawk Designs, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Mervin Manufacturing, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Quiksilver Americas, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Wholesale, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	DC Shoes, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Hawk Designs, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Mervin Manufacturing, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Quiksilver, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Quiksilver Americas, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Wholesale, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	DC Shoes, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Hawk Designs, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****
	Mervin Manufacturing, Inc.
	 	 	*	****	 	 	*	****	 	 	*	****






 









 









	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name of Bank or Financial	 	 	 	 
	Loan Party	 	Institution	 	Account Number	 	Type of Account
	Quiksilver Canada Corp.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail Canada Corp.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail Canada Corp.
	 	 	*	****	 	 	*	****	 	 	*	****
	Quiksilver Canada Corp.
	 	 	*	****	 	 	*	****	 	 	*	****
	Quiksilver Canada Corp.
	 	 	*	****	 	 	*	****	 	 	*	****
	QS Retail Canada Corp.
	 	 	*	****	 	 	*	****	 	 	*	****








 




			
	*	 	Blocked Account Bank




 









 










Schedule 5.21(b)

to Credit Agreement




CREDIT CARD ARRANGEMENTS





	1.	 	First Data Corporation (QS Retail, Inc.)1
	 
	2.	 	Elavon, Inc. (QS Wholesale, Inc. and DC Shoes, Inc.)







 




			
	1	 	Agreement between First Data and QS Retail,
Inc. has on one-year term with automatic renewal on March 15.




 









 










Schedule 5.22

to Credit Agreement




BROKERS





	1.	 	Banc of America Securities LLC
	 
	2.	 	GE Capital Markets, Inc.
	 
	3.	 	Rhône Group L.L.C.
	 
	4.	 	Peter J. Solomon Company
	 
	5.	 	Lazard Ltd.





 









 





Schedule 5.24

to Credit Agreement




MATERIAL CONTRACTS



1. Indenture, dated as of July 22, 2005 (the “Indenture”), among Quiksilver, Inc., the
Subsidiary Guarantors party thereto and Wilmington Trust Company, as trustee.



2. Guaranty obligations of Parent associated with the Societe General Agreement.



3. Guaranty obligations of Parent associated with the Pilot SAS Facility.



4. Facilities Agreement, dated as of July 31, 2009, by and among, inter alia, Pilot SAS, a Société
par Actions Simplifiée, Na Pali, a Société par Actions Simplifiée, as borrowers, the Parent and
Credit Lyonnais SA, BNP Paribas SA and Societe Generale SA, as mandated lead arrangers.





 











 






Schedule 6.02

Financial and Collateral Reporting




Quiksilver Americas, Inc. et al.




Note: System-generated reports should be provided where applicable.



Capitalized terms used but not otherwise defined herein that are defined in the Credit Agreement to
which this Schedule 6.02 is attached (the “Credit Agreement”) shall have the meanings
assigned to such terms in the Credit Agreement.




	 	 	 	 	 	 	 
	 	 	 	 	DATE	 	(X)
	Monthly (due on 15th day of each Fiscal Month (or, if such day is
not a Business Day, on the next succeeding Business Day) until delivery of
Fiscal 2009 10-K of the Parent, and due on the 10th day of each
Fiscal Month thereafter (or, if such day is not a Business Day, on the next
succeeding Business Day)), or if required under the Credit Agreement, weekly,
(due on Wednesday of each week (or, if such Wednesday is not a Business Day, on
the next succeeding Business Day) provided that, if Borrowing Base Certificates
are required to be delivered weekly, updated inventory reports shall only be
required in connection therewith to the extent then available):	 	 	 	 
	•

	 	Borrowing Base Certificate (BBC)
	 	 

	 	 
 
	Borrowing Base backup to be received with BBC:	 	 	 	 
	•

	 	Accounts Receivable Aging Summary
	 	 

	 	 
 
	•

	 	Schedule Detailing Extended Terms Customers
	 	 

	 	 
 
	•

	 	Schedule Detailing Cross-Age Customers
	 	 

	 	 
 
	•

	 	Schedule of Foreign Receivables
	 	 

	 	 
 
	•

	 	Schedule of Government Receivables
	 	 

	 	 
 
	•

	 	Schedule of Intercompany Receivables
	 	 

	 	 
 
	•

	 	Schedule of Employee Receivables
	 	 

	 	 
 
	•

	 	Schedule of Accounts due from Bankrupt Customers
	 	 

	 	 
 
	•

	 	Schedule of Chargebacks on Aging
	 	 

	 	 
 
	•

	 	Schedule of Finance Charges/Interest on Aging
	 	 

	 	 
 
	•

	 	Schedule Detailing Calculation of Contra Accounts
	 	 

	 	 
 
	•

	 	Schedule Detailing Customers Exceeding 15% of Eligible A/R
	 	 

	 	 
 
	•

	 	Eligible Credit Card Receivables Summary
	 	 

	 	 
 
	 
	 	 	 	 	 	 
	•

	 	Inventory Perpetual/Stock Ledger Summary
	 	 

	 	 
 
	•

	 	Schedule of Irregulars/Seconds (Season “W” Inventory)
	 	 

	 	 
 
	•

	 	Schedule of Off-Price Styles (Season “O” Inventory)
	 	 

	 	 
 
	•

	 	Schedule of Drop-Ship Inventory (QDS Warehouse)
	 	 

	 	 
 
	•

	 	Schedule of Hawaii Virtual Warehouse Inventory
	 	 

	 	 
 
	•

	 	Schedule of Inventory in Foreign Locations (incl. Hong Kong)
	 	 

	 	 
 
	•

	 	Schedule of Inventory Located at Outside Processors
	 	 

	 	 
 
	•

	 	Schedule of Supplies & Packaging Inventory
	 	 

	 	 
 
	•

	 	Schedule of Samples Inventory
	 	 

	 	 
 
	•

	 	Raw Materials Summary – Fabric & Trim
	 	 

	 	 
 
	•

	 	Raw Materials Summary – Specialty (Season “Y”)
	 	 

	 	 
 
	•

	 	Raw Materials Summary – Mervin Raw Materials
	 	 

	 	 
 
	•

	 	Work-in-Process Inventory Summary
	 	 

	 	 
 
	•

	 	Schedule of Inventory In-Transit Between Retail Stores
	 	 

	 	 
 
	•

	 	Schedule of Inventory In-Transit From Warehouse to Stores
	 	 

	 	 
 
	•

	 	Schedule of Inventory In-Transit From U.S. to Canada
	 	 

	 	 
 
	•

	 	Detail of Any Unreconciled Variance Between Perpetual and G/L
	 	 

	 	 
 
	•

	 	Monthly Cycle Count Results on a Trailing 12 Month Basis
	 	 

	 	 
 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	DATE	 	(X)
	 
	•

	 	Eligible Import In-Transit Inventory Summary
	 	 

	 	 
 
	•

	 	Eligible Import Letter of Credit Inventory Summary
	 	 

	 	 
 
	 
	 	 	 	 	 	 
	•

	 	Backup to Support Gift Certificates and Merchandise Credits
	 	 

	 	 
 
	•

	 	Backup to Support Customer Deposits
	 	 

	 	 
 
	•

	 	Rent Reserve Detail
	 	 

	 	 
 
	•

	 	Monthly Self-Funded Insurance Claims on Trailing 12 Mo. Basis
	 	 

	 	 
 
	•

	 	Schedule of additional (since date of prior BBC) registered
or applied-for Intellectual Property
	 	 

	 	 
 
	•

	 	Schedule of new (since date of prior BBC) contracts with
any Governmental Authority
	 	 

	 	 
 






	 	 	 	 	 	 	 
	 	 	 	 	DATE	 	(X)
	Monthly (within thirty (30) days after the end of each Fiscal Month of each
Fiscal Year of the Parent, commencing with the first such Fiscal Month which
occurs after the first full six (6) months following the Closing Date):	 	 	 	 
	•

	 	Monthly Financial Statements with MD&A
	 	 

	 	 
 
	•

	 	Compliance Certificate
	 	 

	 	 
 






	 	 	 	 	 	 	 
	Quarterly (within 45 days after Fiscal Quarter end):	 	 	 	 
	•

	 	Quarterly Financial Statements with MD&A (Form 10-Q)
	 	 

	 	 
 
	•

	 	Compliance Certificate
	 	 

	 	 
 






	 	 	 	 	 	 	 
	Annually (within 90 days after Fiscal Year end):	 	 	 	 
	•

	 	Audited Financial Statements with MD&A (Form 10-K)
	 	 

	 	 
 
	•

	 	Compliance Certificate
	 	 

	 	 
 






	 	 	 	 	 	 	 
	Annually (within 30 days after Fiscal Year end):	 	 	 	 
	•

	 	Forecast for Immediately Following Fiscal Year
	 	 

	 	 
 






	 	 	 

	Email / Mail to:

	 	Theresa Espinola
	 

	 	Bank of America
	 

	 	100 Federal Street
	 

	 	MA5-100-09-09

Boston, MA 02110
	 

	 	theresa.m.espinola@bankofamerica.com






 









 







Schedule 7.01

to Credit Agreement




EXISTING LIENS




Liens:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Collateral
	Debtor(S)	 	Jurisdiction	 	Secured Party	 	File No./ File Date	 	Description
	QS Retail, Inc.

	 	CA SOS
	 	Vestar TM-OPCO,
L.L.C.
	 	06-7089343858

10/20/2006
	 	Fixtures,
improvements and
additions to Suite
F-5 Tempe
Marketplace, Tempe,
AZ
	 
	 	 	 	 	 	 	 	 
	Quiksilver Canada
Corp.

	 	British Columbia
	 	The Royal Bank of
Canada
	 	793112C

1/17/2006



Amended:

104218F

7/30/2009
	 	Guaranteed
Investment
Certificate No.
00920153700 in the
amount of $300,000
and all extensions,
renewals and
replacements
thereof






Tax Liens:



None.












 









 








Schedule 7.02

to Credit Agreement




EXISTING INVESTMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Authorized	 	Issued	 	 
	Holder	 	Issuer	 	Jurisdiction	 	Equity Interests	 	Equity Interests	 	Ownership Percentage
	Quiksilver Americas, Inc.

	 	QS Mexico Holdings LP
	 	Delaware
	 	N/A
	 	N/A
	 	 	60	%
	Quiksilver, Inc.

	 	Kelly Slater Wave

Company, LLC
	 	Delaware
	 	N/A
	 	N/A
	 	 	8.5	%






 









 






Schedule 7.03

to Credit Agreement




EXISTING INDEBTEDNESS



1. Master Installment Payment Agreement among Parent and CIT Technology Financing Services, Inc.,
in connection with worldwide software license agreements with Microsoft Corp., in an the original
principal amount of $3,000,000, maturing on September 1, 2010, of which approximately $1,447,315
remains outstanding as of the Closing Date.



2. Deferred purchase price obligations of Parent of approximately $43,300,000 incurred in
connection with the Ski Rossignol S.A.



3. Guaranty obligations of Parent associated with Indebtedness of Quiksilver Japan K.K. in an
approximate outstanding principal amount of ¥1,600,000,000 owing to Tokyo Mitsubishi UJF in
connection with a certain short-term loan facility.



4. Guaranty obligations of Parent associated with Indebtedness of Quiksilver Japan K.K. in an
approximate outstanding principal amount of ¥200,000,000 owing to Tokyo Mitsubishi UFJ in
connection with a certain overdraft facility.



5. Guaranty obligations of Parent associated with Indebtedness of Quiksilver Japan K.K. in an
approximate outstanding principal amount of ¥1,000,000,000 owing to Resona in connection with a
certain short-term loan facility.



6. Guaranty obligations of Quiksilver, Inc. in connection with that certain lease, dated as of May
30, 2006, between Cottonwood Newpark Two L.C. and Rossignol Ski Company.



7. Indebtedness of Quiksilver Canada Corp. in an approximate outstanding principal amount of
$2,500,000 owing to QS Holdings S.à r.l.











 









 








Schedule 7.10

to Credit Agreement




EXISTING RESTRICTIONS



1. Indenture, dated as of July 22, 2005 (the “Indenture”), among Quiksilver, Inc., the
Subsidiary Guarantors party thereto and Wilmington Trust Company, as trustee.












 









 








Schedule 10.02

to Credit Agreement




ADMINISTRATIVE AGENT’S OFFICE; CERTAIN ADDRESSES




	 	 	 
	Party	 	Notice Information
	Loan Parties:

	 	c/o Quiksilver, Inc.
	Quiksilver, Inc.

	 	15202 Graham Street
	Quiksilver Americas, Inc.

	 	Huntington Beach, CA 92649
	DC Shoes, Inc.

	 	Attention: Chief Financial Officer
	Hawk Designs, Inc.

	 	Telephone: (714) 889-2200
	Mervin Manufacturing, Inc.

	 	Telecopier: (714) 889-2322
	QS Wholesale, Inc.

	 	Email: Joe.scirocco@quiksilver.com
	 
	QS Retail, Inc.

	 	with a copy to:
	 
	Quiksilver Canada Corp.

	 	Skadden, Arps, Slate, Meagher & Flom LLP
	QS Retail Canada Corp.

	 	300 South Grand Avenue
	 

	 	Los Angeles, California 90071-3144
	 

	 	Attention: K. Kristine Dunn, Esq.
	 

	 	Telephone: (213) 687-5493
	 

	 	Facsimile: (213) 621-5493
	 

	 	Email: kristine.dunn@skadden.com
	 
	 

	 	Lead Borrower’s Website: www.quiksilverinc.com
	 
	 	 
	Administrative Agent, Co-Collateral

	 	Bank of America, N.A.
	Agent, L/C Issuer & Swing Line

	 	100 Federal Street, 9th Floor
	Lender:

	 	Boston, Massachusetts 02110
	Bank of America, N.A.

	 	Attention: Stephen J. Garvin, Managing Director
	 

	 	Telephone: (617) 434-9399
	 

	 	Facsimile: (617) 434-6685
	 

	 	Email: stephen.garvin@bankofamerica.com
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Riemer & Braunstein LLP
	 

	 	Three Center Plaza
	 

	 	Boston, Massachusetts 02108
	 

	 	Attention: Jason S. DelMonico, Esquire
	 

	 	Telephone: (617) 880-3496
	 

	 	Facsimile: (617) 880-3456
	 

	 	Email: jdelmonico@riemerlaw.com
	 
	 	 
	 

	 	Administrative Agent’s Account:






 









 






	 	 	 
	Party	 	Notice Information
	 

	 	Bank of America
	 

	 	ABA: 026-009-593
	 

	 	Account Name: Bank of America Retail Group Collection
	 

	 	Account Number: 0050252044
	 

	 	Ref: Quiksilver Americas, Inc.
	 
	 	 
	Co-Collateral Agent


General Electric Capital Corporation

	 	General Electric Capital Corporation 

10 Riverview Drive 

Danbury, CT 06810
	 

	 	Attention: Quiksilver Account Manager
	 

	 	Telephone: (203) 749-6296
	 

	 	Facsimile: (203) 749-4666
	 

	 	Email: joshua.osher@ge.com
	 
	 	 
	 

	 	with a copies to:
	 
	 	 
	 

	 	Kilpatrick Stockton LLP
	 

	 	Suite 2800
	 

	 	1100 Peachtree Street NE
	 

	 	Atlanta, GA 30309-4530
	 

	 	Attention: Hilary P. Jordan, Esq.
	 

	 	Telephone: (404) 815- 6362
	 

	 	Facsimile: (404) 541-3256
	 

	 	Email: hjordan@kilpatrickstockton.com
	 
	 

	 	and
	 
	 

	 	General Electric Capital Corporation
	 

	 	201 Merritt 7
	 

	 	Norwalk, CT 06851
	 

	 	Attention: Corporate Counsel-Commercial Finance
	 

	 	Telephone: (203) 956-4378
	 

	 	Facsimile: (203) 956-4001
	 

	 	Email: john.pistocchi@ge.com
	 
	 	 
	Canadian Agent:



Bank of America, N.A. (acting
through its Canada branch)

	 	Bank of America, N.A. (acting through its Canada branch)

200 Front Street West

Toronto, Ontario, Canada M5V 3L2

Attention: Medina Sales de Andrade, Vice President
	 

	 	Telephone: (416) 349-5433
	 

	 	Facsimile: (416) 349-4283
	 

	 	Email: medina.sales_de_andrade@bankofamerica.com
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Riemer & Braunstein LLP
	 

	 	Three Center Plaza
	 

	 	Boston, Massachusetts 02108
	 

	 	Attention: Jason S. DelMonico, Esquire
	 

	 	Telephone: (617) 880-3496
	 

	 	Facsimile: (617) 880-3456






 









 







	 	 	 
	Party	 	Notice Information
	 

	 	Email: jdelmonico@riemerlaw.com
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Ogilvy Renault LLP
	 

	 	Suite 3800
	 

	 	Royal Bank Plaza, South Tower
	 

	 	200 Bay Street
	 

	 	P.O. Box 84
	 

	 	Toronto, Ontario M5J 2Z4
	 

	 	Attention: C. Nicole Sigouin, Esq.
	 

	 	Telephone: (416) 216-3929
	 

	 	Facsimile: (416) 216-3930
	 

	 	Email: nsigouin@ogilvyrenault.com
	 
	 	 
	 

	 	Canadian Agent’s Account for Canadian Loans (US Dollar):
	 
	 	 
	 

	 	Bank America International New York
	 

	 	335 Madison Avenue, New York, NY. 10017
	 

	 	Swift Code: BOFAUS3N ABA# 026009593
	 

	 	For the Account of: Bank of America, N.A., Canada Branch
	 

	 	Account # 65502-01805
	 

	 	Swift Code: BOFACATT
	 

	 	Ref: Quiksilver Canada Corp
	 
	 	 
	 

	 	Canadian Agent’s Account for Canadian Loans (Canadian
	 

	 	Dollar):
	 
	 	 
	 

	 	LVTS — Large Value Transaction System
	 

	 	Bank of America NA, Canada Branch
	 

	 	200 Front Street West, Toronto
	 

	 	Swift Code: BOFACATT
	 

	 	A/C # 90083255
	 

	 	Attn: Loans Department
	 

	 	Transit #: 024156792
	 

	 	Ref: Quiksilver Canada Corp






 









 






Exhibit A-1




Committed Loan Notice (Committed Domestic Borrowing)



Date:                     



	 	 	 

	To:

	 	Bank of America, N.A., as Administrative Agent
	 

	 	100 Federal Street, 9th Floor
	 

	 	Boston, Massachusetts 02110







          Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated, modified,
supplemented or restated and in effect from time to time, the “Credit Agreement”) by
and among, inter alia (i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) Quiksilver
Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time party
thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to
time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral
Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital
Corporation, as Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its
Canada branch), as Canadian Agent.
Capitalized terms used but not defined herein shall have the meanings set forth in the
Credit Agreement.


Ladies and Gentlemen:




     The [Lead Borrower] [Parent] refers to the above described Credit Agreement and hereby
irrevocably notifies you of the [Committed Domestic Borrowing] [conversion of a Committed
Domestic Loan] [continuation of a LIBO Rate Loan] (the “Requested Action”) requested
below:




	 	1.	 	The Business Day of the Requested Action is                     , 20[                    ]1.
	 
	 	2.	 	The principal amount of the Requested Action2 is $                    ,
which shall consist of the following Types:





[remainder of page intentionally left blank]






 




			
	1	 	Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three (3) Business Days prior to the requested date of any Committed Borrowing of,
conversion to or continuation of LIBO Rate Loans, or of any conversion of LIBO Rate Loans to
Domestic Prime Rate Loans, and (ii) one (1) Business Day prior to the requested date of any
Committed Borrowing of Domestic Prime Rate Loans.
	 
	2	 	Each Committed Borrowing of, conversion to or continuation of LIBO Rate Loans
shall be in a principal amount of $1,000,000.00 or a whole multiple of $1,000,000.00 in excess
thereof, and, except as provided in Sections 2.03(c) and 2.04(c) of the Credit Agreement, each
Committed Borrowing of or conversion to Domestic Prime Rate Loans shall be in a principal amount of
$500,000.00 or a whole multiple of $100,000.00 in excess thereof.




 









 










	 	 	 	 	 	 	 	 	 
	Type of Committed Domestic Loans (Domestic Prime Rate Loans	 	 	 	 	 	 	 
	or	 	 	 	 	 	Interest Period for LIBO Rate	 
	LIBO Rate Loans)3	 	Amount	 	 	Loans4	 
	 
	 	$__________	 	 	 	[1] [2] [3] [6] months
	 
	 	 	 	 	 	 	 
	 
	 	$__________	 	 	 	[1] [2] [3] [6] months
	 
	 	 	 	 	 	 	 
	 
	 	$__________	 	 	 	[1] [2] [3] [6] months
	 
	 	 	 	 	 	 	 
	 
	 	$__________	 	 	 	[1] [2] [3] [6] months
	 
	 	 	 	 	 	 	 






	3.	 	[Proceeds of the requested Committed Domestic Borrowing are to be disbursed to
the following account(s):





                                        




                                        ]




     The [Lead Borrower] [Parent] hereby represents and warrants that the conditions specified in
Sections 4.02(a) and (b) of the Credit Agreement shall be satisfied on and as of the date of the
requested Committed Borrowing.



	 	 	 	 	 
	 	[QUIKSILVER AMERICAS, INC., a California

corporation, as Lead Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	] 	 
	 
	 	[QUIKSILVER, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	] 	 
	 





 




			
	3	 	Type of Committed Domestic Loans to be
borrowed or to which existing Committed Domestic Loans are to be converted. If
no election of Type of Committed Domestic Loans is specified, such Committed
Domestic Loans shall be made as Domestic Prime Rate Loans.
	 
	4	 	If no election of Interest Period is
specified, such notice shall be deemed a request for an Interest Period of one
(1) month.






 











 






Exhibit A-2




Committed Loan Notice (Committed Canadian Borrowing)



Date:                                         





	To:  	 	Bank of America, N.A. (acting through its Canada branch),

as Canadian Agent

200 Front Street West

Toronto, Ontario, Canada M5V 3L2





	 	 	     Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead
Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers
from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v)
the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative
Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii)
General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America,
N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.





Ladies and Gentlemen:




     The [Lead Borrower] [Parent] [Canadian Borrower] refers to the above described Credit
Agreement and hereby irrevocably notifies you of the [Committed Canadian Borrowing] [conversion of
a Committed Canadian Loan] [continuation of a BA Equivalent Loan] (the “Requested Action”)
requested below:




	 	1.	 	The Business Day of the Requested Action is                     , 20[___]1.






	 	2.	 	The principal amount of the Requested Action2 is CD$                    ,
which shall consist of the following Types:





[remainder of page intentionally left blank]






 




			
	1	 	Each such notice must be received by the
Canadian Agent not later than 11:00 a.m. (i) three (3) Business Days prior to
the requested date of any Committed Borrowing of, conversion to or continuation
of BA Equivalent Loans, or of any conversion of BA Equivalent Loans to Canadian
Prime Rate Loans and (ii) one (1) Business Day prior to the requested date of
any Committed Borrowing of Canadian Prime Rate Loans.
	 
	2	 	Each Committed Borrowing of, conversion to or
continuation of BA Equivalent Loans shall be in a principal amount of
CD$[                    ] or a whole multiple of CD$[                    ] in excess thereof, and,
except as provided in Sections 2.03(c) and 2.04(c) of the Credit Agreement,
each Committed Borrowing of Canadian Prime Rate Loans shall be in a principal
amount of CD$500,000.00 or a whole multiple of CD$100,000.00 in excess thereof.




 









 











	 	 	 	 	 
	Type of Committed Canadian	 	 	 	 
	Loan	 	 	 	
	(Canadian Prime Rate Loans or	 	 	 	 
	BA Equivalent Loans)3	 	Amount	 	Interest Period for BA Equivalent Loans4
	 

	 	CD$                    
	 	[1] [2] [3] [6] months
	 

	 	CD$                    
	 	[1] [2] [3] [6] months
	 

	 	CD$                    
	 	[1] [2] [3] [6] months
	 

	 	CD$                    
	 	[1] [2] [3] [6] months







	 	3.	 	[Proceeds of the requested Committed Canadian Borrowing are to be disbursed to
the following account(s):





                                        

                                        ]




     The [Lead Borrower] [Parent] [Canadian Borrower] hereby represents and warrants that the
conditions specified in Sections 4.02(a) and (b) of the Credit Agreement shall be satisfied on and
as of the date of the requested Committed Borrowing.



	 	 	 	 	 
	 	[QUIKSILVER CANADA CORP., a
Nova 
Scotia
unlimited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 
	 
	 	[QUIKSILVER AMERICAS, INC., a California

corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 
	 
	 	[QUIKSILVER, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 
	 





 




			
	3	 	Type of Committed Canadian Loans to be
borrowed or to which existing Committed Canadian Loans are to be converted. If
no election of Type of Committed Canadian Loans is specified, such Committed
Canadian Loans shall be made as Canadian Prime Rate Loans.
	 
	4	 	If no election of Interest Period is
specified, such notice shall be deemed a request for an Interest Period of one
(1) month.




 









 










Exhibit B-1




Swing Line Loan Notice (Domestic)



Date:                                         





	To:	 	Bank of America, N.A., as Administrative Agent and as Swing Line Lender

100 Federal Street, 9th Floor

Boston, Massachusetts 02110






	  	 	Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead
Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers
from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v)
the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative
Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii)
General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America,
N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.





Ladies and Gentlemen:




     The [Lead Borrower] [Parent] refers to the above described Credit Agreement and hereby
irrevocably notifies you of the Swing Line Borrowing requested below:




	 	1.	 	The Business Day of the requested Swing Line Borrowing is                     ,
20[___].1






	 	2.	 	The aggregate amount of the requested Swing Line Borrowing2 is
$                    , which Swing Line Borrowing shall consist of a Domestic Prime Rate
Loan.






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





 






[remainder of page intentionally left blank]






 




			
	1	 	Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date.
	 
	2	 	Each such Borrowing shall be in a principal
amount of not less than $100,000.00.




 









 










     The [Lead Borrower] [Parent] hereby represents and warrants that the conditions specified in
Sections 4.02(a) and (b) of the Credit Agreement shall be satisfied on and as of the date of the
requested Swing Line Borrowing.



	 	 	 	 	 
	 	[QUIKSILVER AMERICAS, INC., a California

corporation, as Lead Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 
	 
	 	[QUIKSILVER, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 



 









 








Exhibit B-2




Swing Line Loan Notice (Canadian)



Date:                                         





	To:	 	Bank of America, N.A. (acting through its Canada branch), as Canadian Agent
and as Swing Line Lender

200 Front Street West

Toronto, Ontario, Canada M5V 3L2






	  	 	Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead
Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers
from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v)
the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative
Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii)
General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America,
N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.





Ladies and Gentlemen:




     The [Lead Borrower] [Parent] [Canadian Borrower] refers to the above described Credit
Agreement and hereby irrevocably notifies you of the Swing Line Borrowing requested below:




	 	1.	 	The Business Day of the requested Swing Line Borrowing is                     ,
20[___].1






	 	2.	 	The aggregate amount of the requested Swing Line Borrowing2 is
CD$                    , which Swing Line Borrowing shall consist of a Canadian Prime Rate
Loan.






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





 






[remainder of page intentionally left blank]






 




			
	1	 	Each such notice must be received by the
Swing Line Lender and the Canadian Agent not later than 1:00 p.m. on the
requested borrowing date.
	 
	2	 	Each such Borrowing shall be in a principal
amount of not less than CD$100,000.00.




 









 











     The [Lead Borrower] [Parent] [Canadian Borrower] hereby represents and warrants that the
conditions specified in Sections 4.02(a) and (b) of the Credit Agreement shall be satisfied on and
as of the date of the requested Swing Line Borrowing.



	 	 	 	 	 
	 	[QUIKSILVER CANADA CORP., a Nova 
Scotia
unlimited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 
	 
	 	[QUIKSILVER AMERICAS, INC., a California

corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 
	 
	 	[QUIKSILVER, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 



 









 







	 	 	 	 	 



Exhibit C-1




 





CANADIAN NOTE




 





	 	 	 
	$[                    ]  	 	July [___], 2009 







     FOR VALUE RECEIVED, the undersigned (the “Canadian Borrower”) promises to
pay to the order of [                                        ] (hereinafter, with any subsequent holders,
the “Lender”), c/o Bank of America, N.A. (acting through its Canada branch),
200 Front Street West, Toronto, Ontario, Canada M5V 3L2, the principal sum of
[                                        ] ($                    ), or, if less, the aggregate unpaid principal
balance of Committed Canadian Loans made by the Lender to or for the account of any
Canadian Borrower pursuant to the Credit Agreement dated as of July 31, 2009 (as
amended, amended and restated, modified, supplemented or restated and in effect from
time to time, the “Credit Agreement”) by and among, inter alia (i) Quiksilver
Americas, Inc., as the Lead Borrower, (ii) the Canadian Borrower, (iii) the other
Borrowers from time to time party thereto, (iv) the Guarantors from time to time party
thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A.,
as Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and
Syndication Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent,
and (viii) Bank of America, N.A. (acting through its Canada branch), as Canadian Agent,
with interest at the rate and payable in the manner stated therein.



     This is a “Note” to which reference is made in the Credit Agreement and is subject
to all terms and provisions thereof. The principal of, and interest on, this Note
shall be payable at the times, in the manner, and in the amounts as provided in the
Credit Agreement and shall be subject to prepayment and acceleration as provided
therein. Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.



     The Canadian Agent’s books and records concerning the Committed Canadian Loans, the
accrual of interest thereon, and the repayment of such Committed Canadian Loans, shall
be prima facie evidence of the indebtedness hereunder, absent manifest error.



     No delay or omission by the Canadian Agent, any Agent or the Lender in exercising
or enforcing any of such Agent’s or the Lender’s powers, rights, privileges, remedies
or discretions hereunder shall operate as a waiver thereof on that occasion nor on any
other occasion. No waiver of any Event of Default shall operate as a waiver of any
other Event of Default, nor as a continuing waiver.



     The Canadian Borrower, and each endorser and guarantor of this Note, waives
presentment, demand, notice (other than any notice expressly required by the terms of
this Note or the other Loan Documents), and protest, and also waives any delay on the
part of the holder hereof. The Canadian Borrower assents to any extension or other
indulgence (including,
without limitation, the release or substitution of Collateral) permitted by the
Canadian Agent, any Agent and/or the Lender with respect to this Note and/or any
Collateral or any extension or other indulgence with respect to any other liability
or any collateral given to secure any other liability of the Canadian Borrower or
any other Person obligated on account of this Note.



1









 





     This Note shall be binding upon the Canadian Borrower, and each endorser and
guarantor hereof, and upon their respective successors and assigns, and shall inure to
the benefit of the Lender and its successors, endorsees, and permitted assigns.



     The liabilities of the Canadian Borrower, and of any endorser or guarantor of this
Note, are joint and several, provided, however, the release by the Canadian Agent, any
Agent or the Lender of any one or more such Persons shall not release any other Person
obligated on account of this Note. Each reference in this Note to the Canadian
Borrower, any endorser, and any guarantor, is to such Person individually and also to
all such Persons jointly.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



     THE CANADIAN BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE CANADIAN BORROWER IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. THE CANADIAN BORROWER AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW. NOTHING IN THIS NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT
ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
NOTE OR ANY OTHER LOAN DOCUMENT AGAINST THE CANADIAN BORROWER OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.



     THE CANADIAN BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN THE PRECEDING PARAGRAPH. THE
CANADIAN BORROWER HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.



     THE CANADIAN BORROWER IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS NOTE
WILL AFFECT THE RIGHT OF ANY SUCH PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY APPLICABLE LAW.



     THE CANADIAN BORROWER AGREES THAT ANY ACTION COMMENCED BY THE CANADIAN BORROWER
ASSERTING ANY CLAIM OR COUNTERCLAIM ARISING UNDER OR IN CONNECTION WITH THIS NOTE OR
ANY OTHER LOAN DOCUMENT SHALL BE



2









 







BROUGHT SOLELY IN A COURT OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY OR ANY FEDERAL COURT SITTING THEREIN AS THE ADMINISTRATIVE
AGENT MAY ELECT IN ITS SOLE DISCRETION AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.



     The Canadian Borrower, each guarantor, endorser, surety and Lender makes the
following waiver knowingly, voluntarily, and intentionally, and understands that the
other parties to this Note, the Canadian Agent, the Agents and the Lender, in the
establishment and maintenance of their respective relationship with each other
contemplated by this Note, is relying thereon. THE CANADIAN BORROWER, EACH GUARANTOR,
ENDORSER, SURETY, AND LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE, ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). THE CANADIAN BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THE CREDIT
AGREEMENT, THIS NOTE AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS HEREIN.



[SIGNATURE PAGE FOLLOWS]




3









 






     IN WITNESS WHEREOF, the Canadian Borrower has caused this Note to be duly executed
as of the date set forth above.



CANADIAN BORROWER:




	 	 	 	 	 
	 	QUIKSILVER CANADA CORP., a
Nova Scotia 
unlimited
liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature
Page to Canadian Note


 











 





Exhibit C-2




 




DOMESTIC NOTE




 




	 	 	 

	$[                    ]

	 	July [___], 2009






     FOR VALUE RECEIVED, the undersigned (singly, a “Domestic Borrower”, and collectively,
the “Domestic Borrowers”) jointly and severally promise to pay to the order of
[                                        ] (hereinafter, with any subsequent holders, the “Lender”), c/o Bank
of America, N.A., 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, the
principal sum of [                                        ] ($                    ), or, if less, the aggregate unpaid
principal balance of Committed Domestic Loans made by the Lender to or for the account of any
Domestic Borrower pursuant to the Credit Agreement dated as of July 31, 2009 (as amended, amended
and restated, modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead Borrower, (ii)
Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time
party thereto, (iv) the Guarantors from time to time party thereto, (v) the other Lenders (as
defined in the Credit Agreement) from time to time party thereto, (vi) Bank of America, N.A., as
Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent,
(vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America,
N.A. (acting through its Canada branch), as Canadian Agent.



     This is a “Note” to which reference is made in the Credit Agreement and is subject to all
terms and provisions thereof. The principal of, and interest on, this Note shall be payable at the
times, in the manner, and in the amounts as provided in the Credit Agreement and shall be subject
to prepayment and acceleration as provided therein. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.



     The Administrative Agent’s books and records concerning the Committed Domestic Loans, the
accrual of interest thereon, and the repayment of such Committed Domestic Loans, shall be prima
facie evidence of the indebtedness hereunder, absent manifest error.



     No delay or omission by any Agent or the Lender in exercising or enforcing any of such Agent’s
or the Lender’s powers, rights, privileges, remedies or discretions hereunder shall operate as a
waiver thereof on that occasion nor on any other occasion. No waiver of any Event of Default shall
operate as a waiver of any other Event of Default, nor as a continuing waiver.



     Each Domestic Borrower, and each endorser and guarantor of this Note, waives presentment,
demand, notice (other than any notice expressly required by the terms of this Note or the other
Loan Documents), and protest, and also waives any delay on the part of the holder hereof. Each
Domestic Borrower assents to any extension or other indulgence (including, without limitation, the
release or substitution of Collateral) permitted by any Agent and/or the Lender with respect to
this Note and/or any Collateral or any extension or other indulgence with respect to any other
liability or any collateral given to secure any other liability of any Domestic Borrower or any
other Person obligated on account of this Note.



1









 





     This Note shall be binding upon each Domestic Borrower, and each endorser and guarantor
hereof, and upon their respective successors and assigns, and shall inure to the benefit of the
Lender and its successors, endorsees, and permitted assigns.



     The liabilities of each Domestic Borrower, and of any endorser or guarantor of this Note, are
joint and several, provided, however, the release by any Agent or the Lender of any one or more
such Persons shall not release any other Person obligated on account of this Note. Each reference
in this Note to each Domestic Borrower, any endorser, and any guarantor, is to such Person
individually and also to all such Persons jointly.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



     EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF
THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM
ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS NOTE OR ANY OTHER LOAN DOCUMENT AGAINST ANY PARTY HERETO OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.



     EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN THE PRECEDING PARAGRAPH. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS NOTE WILL AFFECT THE RIGHT OF
ANY SUCH PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     EACH PARTY HERETO AGREES THAT ANY ACTION COMMENCED BY ANY DOMESTIC BORROWER ASSERTING ANY
CLAIM OR COUNTERCLAIM ARISING UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN DOCUMENT
SHALL BE BROUGHT SOLELY IN A COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK



2









 




COUNTY OR ANY FEDERAL COURT SITTING THEREIN AS THE ADMINISTRATIVE AGENT MAY ELECT IN ITS SOLE
DISCRETION AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH
ACTION.




     Each Domestic Borrower, guarantor, endorser, surety and Lender makes the following waiver
knowingly, voluntarily, and intentionally, and understands that the other parties to this Note, the
Agents and the Lender, in the establishment and maintenance of their respective relationship with
each other contemplated by this Note, is relying thereon. EACH DOMESTIC BORROWER, EACH GUARANTOR,
ENDORSER, SURETY, AND LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THE CREDIT AGREEMENT, THIS NOTE AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.



[SIGNATURE PAGES FOLLOWS]








3









 









     IN WITNESS WHEREOF, the Domestic Borrowers have caused this Note to be duly executed as of the
date set forth above.


DOMESTIC BORROWERS:




	 	 	 	 	 
	 	QUIKSILVER AMERICAS, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DC SHOES, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	HAWK DESIGNS, INC., a California corporation


	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MERVIN MANUFACTURING, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Domestic Note







 









 








	 	 	 	 	 
	 	QS WHOLESALE, INC., a California corporation
 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	QS RETAIL, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Domestic Note






 









 









Exhibit C-3




 





CANADIAN SWING LINE NOTE




 





	 	 	 

	$[                    ]

	 	July [___], 2009






     FOR VALUE RECEIVED, the undersigned (the “Canadian Borrower”) promises to pay to the
order of BANK OF AMERICA, N.A. (acting through its Canada branch) (hereinafter, with any subsequent
holders, the “Swing Line Lender”), c/o Bank of America, N.A. (acting through its Canada
branch), 200 Front Street West, Toronto, Ontario, Canada M5V 3L2, the principal sum of
[                                        ] ($                    ), or, if less, the aggregate unpaid principal balance of
Swing Line Loans made by the Swing Line Lender to or for the account of any Canadian Borrower
pursuant to the Credit Agreement dated as of July 31, 2009 (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit Agreement”)
by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) the Canadian
Borrower, (iii) the other Borrowers from time to time party thereto, (iv) the Guarantors from time
to time party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A.,
as Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent,
(vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America,
N.A. (acting through its Canada branch), as Canadian Agent, with interest at the rate and payable
in the manner stated therein.



     This is a “Swing Line Note” to which reference is made in the Credit Agreement and is subject
to all terms and provisions thereof. The principal of, and interest on, this Swing Line Note shall
be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and
shall be subject to prepayment and acceleration as provided therein. Capitalized terms used herein
and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.



     The Canadian Agent’s books and records concerning the Swing Line Loans made to the Canadian
Borrowers, the accrual of interest thereon, and the repayment of such Swing Line Loans, shall be
prima facie evidence of the indebtedness hereunder, absent manifest error.



     No delay or omission by the Canadian Agent, any Agent or the Swing Line Lender in exercising
or enforcing any of such Agent’s or the Swing Line Lender’s powers, rights, privileges, remedies or
discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion.
No waiver of any Event of Default shall operate as a waiver of any other Event of Default, nor as
a continuing waiver.



     The Canadian Borrower, and each endorser and guarantor of this Swing Line Note, waives
presentment, demand, notice (other than any notice expressly required by the terms of this Swing
Line Note or the other Loan Documents), and protest, and also waives any delay on the part of the
holder hereof. The Canadian Borrower assents to any extension or other indulgence (including,
without limitation, the release or substitution of Collateral) permitted by the Canadian Agent, any
Agent and/or the Swing Line Lender with respect to this Swing Line Note and/or any Collateral or
any extension or other indulgence with respect to any other liability or any collateral given to secure any
other liability of the Canadian Borrower or any other Person obligated on account of this Swing
Line Note.



1









 





     This Swing Line Note shall be binding upon the Canadian Borrower, and each endorser and
guarantor hereof, and upon their respective successors and assigns, and shall inure to the benefit
of the Swing Line Lender and its successors, endorsees, and permitted assigns.



     The liabilities of the Canadian Borrower, and of any endorser or guarantor of this Swing Line
Note, are joint and several, provided, however, the release by the Canadian Agent, any Agent or the
Swing Line Lender of any one or more such Persons shall not release any other Person obligated on
account of this Swing Line Note. Each reference in this Swing Line Note to the Canadian Borrower,
any endorser, and any guarantor, is to such Person individually and also to all such Persons
jointly.



     THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



     THE CANADIAN BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SWING LINE
NOTE OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE
CANADIAN BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. THE CANADIAN BORROWER AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
SWING LINE NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN
DOCUMENT AGAINST THE CANADIAN BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     THE CANADIAN BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN DOCUMENT
IN ANY COURT REFERRED TO IN THE PRECEDING PARAGRAPH. THE CANADIAN BORROWER HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     THE CANADIAN BORROWER IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS SWING LINE NOTE WILL AFFECT THE
RIGHT OF ANY SUCH PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     THE CANADIAN BORROWER AGREES THAT ANY ACTION COMMENCED BY THE CANADIAN BORROWER ASSERTING ANY
CLAIM OR COUNTERCLAIM ARISING UNDER OR IN CONNECTION WITH THIS SWING LINE NOTE OR ANY OTHER LOAN
DOCUMENT SHALL



2









 




BE BROUGHT SOLELY IN A COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR
ANY FEDERAL COURT SITTING THEREIN AS THE ADMINISTRATIVE AGENT MAY ELECT IN ITS SOLE DISCRETION AND
CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.




     The Canadian Borrower, each guarantor, endorser, surety and Swing Line Lender makes the
following waiver knowingly, voluntarily, and intentionally, and understands that the other parties
to this Swing Line Note, the Canadian Agent, the Agents and the Swing Line Lender, in the
establishment and maintenance of their respective relationship with each other contemplated by this
Swing Line Note, is relying thereon. THE CANADIAN BORROWER, EACH GUARANTOR, ENDORSER, SURETY, AND
SWING LINE LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS SWING LINE NOTE, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THE
CANADIAN BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT, THIS SWING LINE NOTE AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.



[SIGNATURE PAGE FOLLOWS]




3









 








     IN WITNESS WHEREOF, the Canadian Borrower has caused this Swing Line Note to be duly executed
as of the date set forth above.


CANADIAN BORROWER:




	 	 	 	 	 
	 	QUIKSILVER CANADA CORP., a Nova Scotia unlimited
liability company


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Canadian Swing Line Note





 









 








Exhibit C-4



 





DOMESTIC SWING LINE NOTE




 





	 	 	 

	$[                    ]

	 	July [___], 2009






     FOR VALUE RECEIVED, the undersigned (singly, a “Domestic Borrower”, and collectively,
the “Domestic Borrowers”) jointly and severally promise to pay to the order of BANK OF
AMERICA, N.A. (hereinafter, with any subsequent holders, the “Swing Line Lender”), 100
Federal Street, 9th Floor, Boston, Massachusetts 02110, the principal sum of
[                                        ] ($                    ), or, if less, the aggregate unpaid principal balance of
Swing Line Loans made by the Swing Line Lender to or for the account of any Domestic Borrower
pursuant to the Credit Agreement dated as of July 31, 2009 (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit Agreement”)
by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) Quiksilver
Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time party thereto,
(iv) the Guarantors from time to time party thereto, (v) the Lenders from time to time party
thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing Line
Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as
Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as Canadian Agent, with
interest at the rate and payable in the manner stated therein.



     This is a “Swing Line Note” to which reference is made in the Credit Agreement and is subject
to all terms and provisions thereof. The principal of, and interest on, this Swing Line Note shall
be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and
shall be subject to prepayment and acceleration as provided therein. Capitalized terms used herein
and not defined herein shall have the meanings assigned to such terms in the Credit Agreement.



     The Administrative Agent’s books and records concerning the Swing Line Loans made to the
Domestic Borrowers, the accrual of interest thereon, and the repayment of such Swing Line Loans,
shall be prima facie evidence of the indebtedness hereunder, absent manifest error.



     No delay or omission by any Agent or the Swing Line Lender in exercising or enforcing any of
such Agent’s or the Swing Line Lender’s powers, rights, privileges, remedies or discretions
hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver
of any Event of Default shall operate as a waiver of any other Event of Default, nor as a
continuing waiver.



     Each Domestic Borrower, and each endorser and guarantor of this Swing Line Note, waives
presentment, demand, notice (other than any notice expressly required by the terms of this Swing
Line Note or the other Loan Documents), and protest, and also waives any delay on the part of the
holder hereof. Each Domestic Borrower assents to any extension or other indulgence (including,
without limitation, the release or substitution of Collateral) permitted by any Agent and/or the
Swing Line Lender with respect to this Swing Line Note and/or any Collateral or any extension or
other indulgence with respect to any other liability or any collateral given to secure any other
liability of any Domestic Borrower or any other Person obligated on account of this Swing Line
Note.



1









 





     This Swing Line Note shall be binding upon each Domestic Borrower, and each endorser and
guarantor hereof, and upon their respective successors and assigns, and shall inure to the benefit
of the Swing Line Lender and its successors, endorsees, and permitted assigns.



     The liabilities of each Domestic Borrower, and of any endorser or guarantor of this Swing Line
Note, are joint and several, provided, however, the release by any Agent or the Swing Line Lender
of any one or more such Persons shall not release any other Person obligated on account of this
Swing Line Note. Each reference in this Swing Line Note to each Domestic Borrower, any endorser,
and any guarantor, is to such Person individually and also to all such Persons jointly.



     THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



     EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF
THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM
ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SWING LINE NOTE OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH PARTY HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
SWING LINE NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN
DOCUMENT AGAINST ANY PARTY HERETO OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN DOCUMENT
IN ANY COURT REFERRED TO IN THE PRECEDING PARAGRAPH. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS SWING LINE NOTE WILL AFFECT THE
RIGHT OF ANY SUCH PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     EACH PARTY HERETO AGREES THAT ANY ACTION COMMENCED BY ANY DOMESTIC BORROWER ASSERTING ANY
CLAIM OR COUNTERCLAIM ARISING UNDER OR IN CONNECTION WITH THIS SWING LINE NOTE OR ANY OTHER LOAN
DOCUMENT SHALL



2









 




BE BROUGHT SOLELY IN A COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR
ANY FEDERAL COURT SITTING THEREIN AS THE ADMINISTRATIVE AGENT MAY ELECT IN ITS SOLE DISCRETION AND
CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.




     Each Domestic Borrower, guarantor, endorser, surety and Swing Line Lender makes the following
waiver knowingly, voluntarily, and intentionally, and understands that the other parties to this
Swing Line Note, the Agents and the Swing Line Lender, in the establishment and maintenance of
their respective relationship with each other contemplated by this Swing Line Note, is relying
thereon. EACH DOMESTIC BORROWER, EACH GUARANTOR, ENDORSER, SURETY, AND SWING LINE LENDER, BY ITS
ACCEPTANCE HEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS SWING LINE NOTE, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THE CREDIT
AGREEMENT, THIS SWING LINE NOTE AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS HEREIN.



[SIGNATURE PAGES FOLLOW]




3









 









     IN WITNESS WHEREOF, the Domestic Borrowers have caused this Swing Line Note to be duly
executed as of the date set forth above.


DOMESTIC BORROWERS:




	 	 	 	 	 
	 	QUIKSILVER AMERICAS, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DC SHOES, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	HAWK DESIGNS, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MERVIN MANUFACTURING, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Domestic Swing Line Note









 









 








	 	 	 	 	 
	 	QS WHOLESALE, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	QS RETAIL, INC., a California corporation


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Domestic Swing Line Note





 











 







Exhibit D




Compliance Certificate



Date of Certificate:                     




	 	 	 

	To:

	 	Bank of America, N.A., as Administrative Agent
	 

	 	100 Federal Street, 9th Floor
	 

	 	Boston, Massachusetts 02110
	 

	 	Attention: Mr. Stephen J. Garvin, Managing Director







     Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead
Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers
from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v)
the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative
Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii)
General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America,
N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.



     The undersigned, a duly authorized and acting Responsible Officer of the [Lead Borrower]
[Parent], hereby certifies on behalf of the Loan Parties as of the date hereof the following:




	1.	 	Covenant Compliance Event.
	 
	 	 	As of the date hereof, there [is a/is no] continuing Covenant Compliance Event.
	 
	2.	 	Consolidated Fixed Charge Coverage Ratio.
	 
	 	 	[Set forth in Appendix I, in reasonable detail, are calculations with respect to
Consolidated Fixed Charge Coverage Ratio for the [four (4) Fiscal Quarters/twelve (12)
Fiscal Months]1 ending [                    ].]
	 
	3.	 	No Material Accounting Changes, Etc.






	 	(a)	 	The financial statements furnished to the Administrative Agent for the [Fiscal
Year/Fiscal Quarter/Fiscal Month] ending [                    ] were prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements and the
Americas Consolidated statements present fairly in all material respects the financial
condition and







 




			
	1	 	To be the most recently completed four (4) Fiscal
Quarters of the Parent for which financial statements have been or were
required to be delivered for any period prior to the end of the first Fiscal
Month which occurs after the first full eighteen (18) months following the
Closing Date and the twelve (12) Fiscal Months most recently ended for which
financial statements are available all periods thereafter.




-1-









 












	 	 	 	results of operations of the Parent and its Americas Subsidiaries, as
of the end of the period(s) covered, subject to (i) with respect to the monthly and
quarterly financial statements, normal year end audit adjustments and the absence of
footnotes and (ii) any changes as disclosed on Appendix II hereto.
	 
	 	(b)	 	Except as set forth in Appendix II, there has been no change in GAAP
which has been applied in the most recent audited financial statements delivered by
Lead Borrower since [                                        ] (the date of the most recent audited financial
statements delivered by Lead Borrower), and if such a change has occurred, the effect
of such change on the financial statements is detailed in Appendix II.






	4.	 	No Default or Event of Default.
	 
	 	 	[As of the date hereof, no Default or Event of Default has occurred and is continuing.][ No
Default or Event of Default has occurred and is continuing, except as set forth on
Appendix III. The Borrowers have taken or propose to take those actions with
respect to such Default or Event of Default as described on said Appendix III.]





[Signature Page Follows]






-2-









 









     IN WITNESS WHEREOF, the [Lead Borrower] [Parent], on behalf of itself and each of the other
Loan Parties, has duly executed this Compliance Certificate as the date first written above.



	 	 	 	 	 
	 	[LEAD BORROWER] [PARENT]:






[QUIKSILVER AMERICAS, INC., a California corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 
	 
	 	[QUIKSILVER, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: ]	 	 



-3-









 










APPENDIX I



The following is a reasonably detailed calculation of the Consolidated Fixed Charge Coverage Ratio:




	 	 	 	 	 	 	 

	1.

	 	Consolidated EBITDA For Such Measurement Period:	 	 	 	 
	 
	 	 	 	 	 	 
	(a)

	 	Consolidated Net Income of the
Parent and the Americas Subsidiaries on an Americas Consolidated
basis for the most recently completed Measurement Period:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Plus the following (to the extent deducted in calculating
such Consolidated Net Income) (in each case of or by the
Parent and the Americas Subsidiaries for such
Measurement Period):	 	 	 	 
	 
	 	 	 	 	 	 
	(b)

	 	Consolidated Interest Charges:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(c)

	 	the provision for federal, state,
local and foreign income Taxes:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(d)

	 	depreciation and amortization expense:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(f)

	 	other non-recurring expenses
reducing such Consolidated Net Income which do not represent a cash item in such period or any future period:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(g)

	 	costs, fees and expenses in
connection with the Loan Documents, the Term Loan Documents and the
other transactions occurring on or about the Closing Date:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(h)

	 	costs, fees and expenses of
business consultants, advisors and other outside professionals
incurred prior to July 31, 2009, not to exceed $2,000,000:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(i)

	 	impairment charges and asset
write-offs pursuant to GAAP and any non-cash stock compensation expenses:	 	 	 	 
	 

	 	 	 	 	 	 





-4-









 








	 	 	 	 	 	 	 

	(j)

	 	other non-cash restructuring,
severance and integration charges reducing such Consolidated Net
Income (provided that if any such non-cash charge represents an
accrual or reserve for any potential cash items in any future period,
the cash payment in respect thereof in such future period shall be
subtracted from Consolidated EBITDA to such extent for such future period):	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(k)

	 	the sum of lines 1(a) through 1(j):	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	minus the sum of the following (to the extent included in
calculating such Consolidated Net Income) (in each case
of or by the Parent and the Americas Subsidiaries for such
Measurement Period):	 	 	 	 
	 
	 	 	 	 	 	 
	(l)

	 	federal, state, local and foreign income tax credits:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(m)

	 	all non-cash items increasing
Consolidated Net Income:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(n)

	 	the sum of line 1(l) and Line 1(m):	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(o)

	 	Consolidated EBITDA [line 1(k)
minus line 1(n)]:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(a)

	 	Capital Expenditures for such period:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(b)

	 	aggregate amount of federal, state,
local, provincial, territorial, municipal and foreign income taxes
paid in cash during such Measurement Period (net of federal, state,
local, provincial, territorial, municipal and foreign income tax
refunds received in cash during such Measurement Period:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(c)

	 	the sum of lines 2(a) through 2(b):	 	 	 	 
	 

	 	 	 	 	 	 





-5-









 







	 	 	 	 	 	 	 

	3.

	 	line 1(o) minus line 2(c):	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	4.

	 	Debt Service Charges for such
Measurement Period (in each case determined on an Americas
Consolidated basis, in accordance with GAAP, as applicable):	 	 	 	 
	 
	 	 	 	 	 	 
	(a)

	 	Consolidated Interest Charges paid
in cash or required to be paid in cash for such Measurement Period:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(b)

	 	principal amount of all scheduled
amortization payments made in cash or required to be made in cash by
the Parent or the Americas Subsidiaries on account of Indebtedness
(excluding the Obligations and any Synthetic Lease Obligations but
including, without limitation, any Capital Lease Obligations) during such Measurement Period:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(c)

	 	Debt Service Charges: [the sum
of lines 4(a) and 4(b)]:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	5.

	 	The aggregate amount of all
Restricted Payments Paid in cash by the Parent during such Measurement Period:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	6.

	 	the sum of line 5 and line 4(c):	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	7.

	 	Consolidated Fixed Charge Coverage
Ratio [line 3 divided by line 6]:	 	 	 	 
	 

	 	 	 	 	 	 




COVENANT: During the continuance of a Covenant Compliance Event, the Consolidated Fixed Charge
Coverage Ratio referenced on line 7 above may not be less than 1.10: 1.00.




	 	 	 	 	 	 	 

	8.

	 	In Compliance?
	 	[N/A][Yes/No]
	 	 











-6-









 








APPENDIX II




     Except as set forth below, no change in GAAP which has been applied in the most recent audited
financial statements delivered by Lead Borrower has occurred since [                                        ] (the date
of the most recent audited financial statements delivered by Lead Borrower). [If any such change
has occurred, the following describes the nature of the change in reasonable detail and the effect,
if any, of each such change in GAAP or in application thereof on the financial statements delivered
in accordance with the Credit Agreement].








-7-









 








[APPENDIX III




     Except as set forth below, no Default or Event of Default has occurred and is continuing as of
the date hereof. The following describes the nature of the Default or Event of Default in
reasonable detail and the steps, if any, being taken or contemplated by the Loan Parties to be
taken on account thereof.]




-8-












 





Exhibit E-1




Assignment and Assumption (Domestic Lenders)



     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are
several and not joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Domestic Lender][their respective capacities as
Domestic Lenders] under the Credit Agreement and any other documents or instruments delivered
pursuant thereto to the extent related to the amount and percentage interest identified below of
all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under
the respective facilities identified below (including, without limitation, with respect to the
Domestic L/C Obligations and the Swing Line Loans made to the Domestic Borrowers included in such
facilities5) and (ii) to the extent permitted to be assigned under applicable Law, all
claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Domestic
Lender)][the respective Assignors (in their respective capacities as Domestic Lenders)] against any
Person, whether known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by [the][any]





 




			
	1	 	For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.
	 
	5	 	Include all applicable subfacilities, if
any.




 









 











Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is
without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor.




	 	 	 	 	 	 	 

	1.

	 	Assignor[s]:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee[s]:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	[for each Assignee, indicate if [Affiliate][Approved Fund] of [identify Lender]]







	3.	 	Domestic Borrowers: Quiksilver Americas, Inc., as Lead Borrower, and the other
Domestic Borrowers party to the Credit Agreement.
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the Administrative Agent under the
Credit Agreement.
	 
	5.	 	Credit Agreement: Credit Agreement dated as of July 31, 2009 (as amended, amended
and restated, modified, supplemented or restated and in effect from time to time, the
“Credit Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the
Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other
Borrowers from time to time party thereto, (iv) the Guarantors from time to time party
thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as
Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication
Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of
America, N.A. (acting through its Canada branch), as Canadian Agent.





[remainder of page intentionally left blank]




	6.	 	Assigned Interest[s]:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Assignor’s Domestic	 	 	Domestic	 	 	of Aggregate	 	 	Resulting Domestic	 	 	Resulting Domestic	 	 	 	 
	 	 	 	 	 	 	Commitment	 	 	Commitment/Domestic	 	 	Domestic Commitment/	 	 	Commitment/	 	 	Commitment/	 	 	 	 
	 	 	 	 	 	 	/Domestic	 	 	Loans	 	 	Domestic Loans	 	 	Domestic Loans of	 	 	Domestic Loans of	 	 	CUSIP	 
	Assignor[s]6	 	Assignee[s]7	 	 	Loans	 	 	Assigned8	 	 	Assigned9	 	 	Assignor	 	 	Assignee	 	 	Number	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	$	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	$	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	$	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	6	 	List each Assignor, as appropriate.
	 
	7	 	List each Assignee, as appropriate.
	 
	8	 	Subject to minimum amount requirements
pursuant to Section 10.06(b)(i) of the Credit Agreement and subject to
proportionate amount requirements pursuant to Section 10.06(b)(ii) of
the Credit Agreement.
	 
	9	 	Set forth, to at least 9 decimals, as a
percentage of the Domestic Commitment/Domestic Loans of all
Domestic Lenders thereunder.




 









 














	[7. 	 	 Trade Date: __________________]10
	 
	 	 	Effective Date:
____________________, 20___[ TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
	 
	 	 	The terms set forth in this Assignment and Assumption are hereby agreed to:





	 	 	 	 	 
	 	ASSIGNOR

[NAME OF
ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Acknowledged, consented to:11



BANK OF
AMERICA, N.A., as

Administrative Agent




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 





 




			
	10	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.
	 
	11	 	To the extent required under Section
10.06(b)(i)(B) or Section 10.06(b)(iii)(B) of the Credit Agreement.




 









 









Acknowledged and consented to:12




	 	 	 	 	 
	BANK OF AMERICA, N.A., as Swing Line Lender

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 





 




			
	12	 	To the extent required under Section
10.06(b)(iii)(D) of the Credit Agreement.




 









 









Acknowledged and consented to:13




	 	 	 	 	 
	BANK OF AMERICA, N.A., as L/C Issuer

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 





 




			
	13	 	To the extent required under Section
10.06(b)(iii)(C) of the Credit Agreement.




 









 









Acknowledged and consented to:14




	 	 	 	 	 
	QUIKSILVER AMERICAS, INC., as

the Lead Borrower

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 





 




			
	14	 	To the extent required under Section
10.06(b)(i)(B) or Section 10.06(b)(iii)(A) of the Credit Agreement.




 









 










ANNEX 1 TO ASSIGNMENT AND ASSUMPTION



Reference is made to a certain Credit Agreement dated as of July 31, 2009 (as amended, amended and
restated, modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead Borrower, (ii)
Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time
party thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to
time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing
Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as
Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as
Canadian Agent.




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION



          1. Representations and Warranties.




          1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Loan Parties or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Loan Parties or any other
Person of any of their respective obligations under any Loan Document.




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Domestic Lender
under the Credit Agreement, (ii) it meets all the requirements to be an Eligible Assignee under the
Credit Agreement (subject to such consents, if any, as may be required under Section
10.06(b) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound
by the provisions of the Credit Agreement as a Domestic Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Domestic Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type represented by
[the][such] Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to
Section 6.01 thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent, any other Agent, or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and
(vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such]
Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, any other Agent, [the][any] Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents,





 









 







and (ii) it will perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Domestic Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy or other electronic image scan transmission (e.g., “pdf” or
“tif” via email) shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.




          4. Fees. Unless waived by the Administrative Agent in accordance with Section
10.06(b)(iv) of the Credit Agreement, this Assignment and Assumption shall be delivered to the
Administrative Agent with a processing and recordation fee of $3,500.00.




          5. Delivery. If [the][any] Assignee is not a Lender, such Assignee shall deliver to
the Administrative Agent an Administrative Questionnaire.





 











 





Exhibit E-2




Assignment and Assumption (Canadian Lenders)



     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are
several and not joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, amended and restated,
modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Canadian Lender][their respective capacities as
Canadian Lenders] under the Credit Agreement and any other documents or instruments delivered
pursuant thereto to the extent related to the amount and percentage interest identified below of
all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under
the respective facilities identified below (including, without limitation, with respect to the
Canadian L/C Obligations and the Swing Line Loans made to the Canadian Borrower included in such
facilities5) and (ii) to the extent permitted to be assigned under applicable Law, all
claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Canadian
Lender)][the respective Assignors (in their respective capacities as Canadian Lenders)] against any
Person, whether known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by [the][any]





 




			
	1	 	For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.
	 
	5	 	Include all applicable subfacilities, if
any.




 









 










Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is
without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor.




	 	 	 	 	 

	1. Assignor[s]:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2. Assignee[s]:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 






	 	 	[for each Assignee, indicate if [Affiliate][Approved Fund] of [identify Lender]]
	 
	3.	 	Canadian Borrower: Quiksilver Canada Corp.
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the Administrative Agent under the
Credit Agreement.
	 
	5.	 	Canadian Agent: Bank of America, N.A. (acting through its Canada branch), as the
Canadian Agent under the Credit Agreement.
	 
	6.	 	Credit Agreement: Credit Agreement dated as of July 31, 2009 (as amended, amended
and restated, modified, supplemented or restated and in effect from time to time, the
“Credit Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the
Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other
Borrowers from time to time party thereto, (iv) the Guarantors from time to time party
thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as
Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication
Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of
America, N.A. (acting through its Canada branch), as Canadian Agent.





[remainder of page intentionally left blank]






 









 











	7.	 	Assigned Interest[s]:






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	Amount of	 	Percentage	 	Resulting Canadian	 	Resulting Canadian	 	 
	 	 	 	 	Assignor’s Canadian	 	Canadian	 	of Aggregate	 	Commitment/Canadian	 	Commitment/Canadian	 	 
	 	 	 	 	Commitment/	 	Commitment/Canadian	 	Canadian Commitment/	 	Loans of	 	Loans of	 	CUSIP
	Assignor[s]6	 	Assignee[s]7	 	Canadian Loans	 	Loans Assigned8	 	Canadian Loans Assigned9	 	Assignor	 	Assignee	 	Number
	 
	 	 
	 	CD$___
	 	CD$___
	 	                    %
	 	CD$___
	 	CD$___
	 	 
	 
	 	 	 	CD$___
	 	CD$___
	 	                    %
	 	CD$___
	 	CD$___	 	 
	 
	 	 	 	CD$___
	 	CD$___
	 	                    %
	 	CD$___
	 	CD$___	 	 








	[8.	 	 Trade Date:                     ]10





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



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



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	6	 	List each Assignor, as appropriate.
	 
	7	 	List each Assignee, as appropriate.
	 
	8	 	Subject to minimum amount requirements
pursuant to Section 10.06(b)(i) of the Credit Agreement and subject to
proportionate amount requirements pursuant to Section 10.06(b)(ii) of
the Credit Agreement.
	 
	9	 	Set forth, to at least 9 decimals, as a
percentage of the Canadian Commitment/Canadian Loans of all
Canadian Lenders thereunder.
	 
	10	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.




 









 









Acknowledged, consented to:11




	 	 	 	 	 
	BANK OF AMERICA, N.A., as

  Administrative Agent

 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	11	 	To the extent required under Section
10.06(b)(i)(B) or Section 10.06(b)(iii)(B) of the Credit Agreement.




 









 









Acknowledged and consented to:12




	 	 	 	 	 
	BANK OF AMERICA, N.A., as Swing Line Lender

 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	12	 	To the extent required under Section
10.06(b)(iii)(D) of the Credit Agreement.




 









 









Acknowledged and consented to:13




	 	 	 	 	 
	BANK OF AMERICA, N.A., as L/C Issuer

 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	13	 	To the extent required under Section
10.06(b)(iii)(C) of the Credit Agreement.




 









 









Acknowledged and consented to:14




	 	 	 	 	 
	QUIKSILVER AMERICAS, INC., as

the Lead Borrower

 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	14	 	To the extent required under Section
10.06(b)(i)(B) or Section 10.06(b)(iii)(A) of the Credit Agreement.




 









 











ANNEX 1 TO ASSIGNMENT AND ASSUMPTION



Reference is made to a certain Credit Agreement dated as of July 31, 2009 (as amended, amended and
restated, modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead Borrower, (ii)
Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time
party thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to
time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing
Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as
Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as
Canadian Agent.




STANDARD
TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





     1. Representations and Warranties.



     1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Loan Parties or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Loan Parties or any other
Person of any of their respective obligations under any Loan Document.



     1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Canadian Lender
under the Credit Agreement, (ii) it meets all the requirements to be an Eligible Assignee under the
Credit Agreement (subject to such consents, if any, as may be required under Section
10.06(b) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound
by the provisions of the Credit Agreement as a Canadian Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Canadian Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type represented by
[the][such] Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to
Section 6.01 thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent, Canadian Agent, any other Agent, or any other Lender and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, Canadian Agent, any other Agent, [the][any] Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action



 









 




under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Canadian Lender.




     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy other electronic image scan transmission (e.g., “pdf” or
“tif” via email) shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.



     4. Fees. Unless waived by the Administrative Agent in accordance with Section
10.06(b)(iv) of the Credit Agreement, this Assignment and Assumption shall be delivered to the
Administrative Agent with a processing and recordation fee of $3,500.00.



     5. Delivery. If [the][any] Assignee is not a Lender, such Assignee shall deliver to
the Administrative Agent an Administrative Questionnaire.




 











 





Exhibit F-1




Form of Joinder Agreement – Domestic Loan Parties



JOINDER AGREEMENT



     This JOINDER AGREEMENT (this “Joinder”) is made as of                                         , by and among:




                                                                 , a    
                                                          (the “New
[Borrower/Guarantor]”), with its principal executive offices at
                                                            ; and




     BANK OF AMERICA, N.A., a national banking association with offices at 100 Federal
Street, 9th Floor, Boston, Massachusetts 02110, as administrative agent (in such capacity,
the “Administrative Agent”) for its own benefit and the benefit of the other
Lenders;



     in consideration of the mutual covenants herein contained and benefits to be derived herefrom.



W I T N E S S E T H :




     A. Reference is made to that certain Credit Agreement dated as of July 31, 2009 (as amended,
amended and restated, modified, supplemented or restated and in effect from time to time, the
“Credit Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead
Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from
time to time party thereto, including, without limitation, the Domestic Borrowers party thereto
(collectively, the “Existing Domestic Borrowers”) (iv) the Guarantors from time to time
party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as
Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent,
(vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America,
N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not defined
herein shall have the meanings set forth in the Credit Agreement.



     B. Reference is also made to that certain Facility Guaranty, dated as of July 31, 2009,
executed by that certain Guarantor that is a Domestic Loan Party and party thereto (the
“Existing Domestic Guarantor”) in favor of the Administrative Agent and the other Credit
Parties.



1









 





     C. The New [Borrower/Guarantor] desires to become a party to, and be bound by the terms of,
the Credit Agreement in the same capacity and to the same extent as the Existing Domestic
[Borrowers/Guarantor] thereunder.



     D. Pursuant to the terms of the Credit Agreement, in order for the New [Borrower/Guarantor] to
become party to the Credit Agreement as provided herein, the New [Borrower/Guarantor] and the
Existing Domestic Borrowers and Existing Domestic Guarantor are required to execute this Joinder.



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




	1.	 	Joinder and Assumption of Obligations. Effective as of the date of this Joinder, the
New [Borrower/Guarantor] hereby acknowledges that the New [Borrower/Guarantor] has received
and reviewed a copy of the Credit Agreement, and hereby:






	 	(a)	 	joins in the execution of, and becomes a party to, the Credit Agreement as a
[Domestic Borrower/Guarantor] thereunder, as indicated with its signature below;
	 
	 	(b)	 	covenants and agrees to be bound by all covenants, agreements, liabilities and
acknowledgments of a [Domestic Borrower/Guarantor] under the Credit Agreement as of the
date hereof (other than covenants, agreements, liabilities and acknowledgments that
relate solely to an earlier date), in each case, with the same force and effect as if
such New [Borrower/Guarantor] was a signatory to the Credit Agreement and was expressly
named as a [Domestic Borrower/Guarantor] therein;
	 
	 	(c)	 	makes all representations, warranties, and other statements of a [Domestic
Borrower/Guarantor] under the Credit Agreement as of the date hereof (other than
representations, warranties and other statements that relate solely to an earlier
date), in each case, with the same force and effect as if such New [Borrower/Guarantor]
was a signatory to the Credit Agreement and was expressly named as a [Domestic
Borrower/Guarantor] therein; and
	 
	 	(d)	 	assumes and agrees to perform all applicable duties and obligations of the
Existing Domestic [Borrowers/Guarantor] under the Credit Agreement.






	2.	 	Supplemental Schedules. To the extent that any representations, warranties, and
covenants of the New [Borrower/Guarantor] require any amendments to the schedules to the
Credit Agreement or any of the other Loan Documents, such schedules are hereby updated, as
evidenced by any supplemental schedules (if any) annexed to this Joinder.




2









 






	3.	 	Ratification of Loan Documents. Except as specifically amended by this Joinder and
the other documents executed and delivered in connection herewith, all of the terms and
conditions of the Credit Agreement and of the other Loan Documents shall remain in full force
and effect as in effect prior to the date hereof, without releasing any Loan Party
thereunder or Collateral therefor.
	 
	4.	 	Conditions Precedent to Effectiveness. This Joinder shall not be effective until
each of the following conditions precedent has been fulfilled to the reasonable satisfaction
of the Agents:






	 	(a)	 	This Joinder shall have been duly executed and delivered by the respective
parties hereto.
	 
	 	(b)	 	The New [Borrower/Guarantor] shall have delivered the following to the
Administrative Agent, in form and substance reasonably satisfactory to the Agents:






	 	(i)	 	Copies of the New [Borrower’s/Guarantor’s]
Organization Documents.
	 
	 	(ii)	 	Certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the New
[Borrower/Guarantor] evidencing (A) the authority of the New
[Borrower/Guarantor] to enter into this Joinder and the other Loan Documents to
which New [Borrower/Guarantor] is a party and (B) the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Joinder and the other Loan Documents to which
New [Borrower/Guarantor] is a party.
	 
	 	(iii)	 	Certificate of good standing (where applicable, or such other
customary functionally equivalent certificates, to the extent available in the
applicable jurisdiction) from the New [Borrower/Guarantor]’s jurisdiction of
organization.
	 
	 	(iv)	 	Certificates of good standing (where applicable or such other
customary functionally equivalent certificates, to the extent available in the
applicable jurisdiction) from each jurisdiction where the New
[Borrower’s/Guarantor’s] ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that
failure to so qualify in such jurisdiction could not be reasonably expected to
have a Material Adverse Effect.
	 
	 	(v)	 	Execution and delivery by the New [Borrower/Guarantor] of the
following Loan Documents:




3









 













	 	a)	 	[In the case of a New Borrower, Joinders to the
Domestic Note and the Domestic Swing Line Note, as applicable];
	 
	 	b)	 	[Joinder Agreement to the Security Agreement];
	 
	 	c)	 	[If the New [Borrower/Guarantor] maintains
Blocked Account(s), Blocked Account Agreement(s) with _________];
	 
	 	d)	 	[In the case of a New Guarantor, a Facility
Guaranty]; and
	 
	 	e)	 	To the extent required by the Loan Documents,
such other documents and agreements as any of the Agents may reasonably
require.






	 	(c)	 	Upon the request of Administrative Agent, the Administrative Agent shall have
received a customary written legal opinion of the New [Borrower/Guarantor]’s counsel,
addressed to the Administrative Agent and each Domestic Lender, covering such matters
relating to the New [Borrower/Guarantor], the Loan Documents and/or the transactions
contemplated thereby as the Administrative Agent may reasonably request.
	 
	 	(d)	 	To the extent required by the Loan Documents, the Administrative Agent shall
have received all documents and instruments, including UCC financing statements and
Blocked Account Agreements, required by applicable Laws or reasonably requested by any
Agent to create or perfect the Liens intended to be created under any Security Document
and all such documents and instruments shall have been so filed, registered or recorded
to the satisfaction of the Agents.
	 
	 	(e)	 	The New [Borrower/Guarantor] shall have paid in full all reasonable fees and
documented out-of-pocket expenses incurred by the Agents (including, without
limitation, the reasonable and documented fees and expenses of counsel to the Agents)
in connection with the preparation, negotiation, execution and delivery of this Joinder
and related documents.






	5.	 	Miscellaneous.






	 	(a)	 	This Joinder may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument.
	 
	 	(b)	 	This Joinder and the other Loan Documents and instruments referred to herein
express the entire understanding of the parties with respect to the transactions
contemplated hereby. No prior negotiations or discussions shall limit, modify, or
otherwise affect the provisions hereof.




4









 






	 	(c)	 	Any determination that any provision of this Joinder or any application hereof
is invalid, illegal or unenforceable in any respect and in any instance shall not
affect the validity, legality, or enforceability of such provision in any other
instance, or the validity, legality or enforceability of any other provisions of this
Joinder.
	 
	 	(d)	 	The New [Borrower/Guarantor] warrants and represents that the New
[Borrower/Guarantor] is not relying on any representations or warranties of any Agent
or the other Credit Parties or their counsel in entering into this Joinder.
	 
	 	(e)	 	THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.





[SIGNATURE PAGES FOLLOW]



5









 





     IN WITNESS WHEREOF, each of the undersigned has caused this Joinder to be duly executed and
delivered by its proper and duly authorized officer as of the date set forth below.




	 	 	 	 	 
	 	NEW [BORROWER/GUARANTOR]:





[                                                                                      ]

	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ADMINISTRATIVE AGENT:





BANK OF AMERICA, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Joinder Agreement



 









 






	 	 	 	 	 

	Acknowledged and Agreed:
	 
	 	 	 	 
	EXISTING DOMESTIC BORROWERS:
	 
	 	 	 	 
	QUIKSILVER AMERICAS, INC., a California corporation
	 
	 	 	 	 
	By: 
	 	 	 
	 	Name: 

	 
	 	 
	 	Title:

	 
	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	DC SHOES, INC., a California corporation
	 
	 	 	 	 
	By: 
	 	 	 
	 	Name: 

	 	 	 
	 	Title:

	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	HAWK DESIGNS, INC., a California corporation
	 
	 	 	 	 
	By: 
	 	 	 
	 	Name: 

	 	 	 
	 	Title:

	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	MERVIN MANUFACTURING, INC., a California corporation
	 
	 	 	 	 
	By: 
	 	 	 
	 	Name: 

	 	 	 
	 	Title:

	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	QS WHOLESALE, INC., a California corporation
	 
	 	 	 	 
	By: 
	 	 	 
	 	Name: 

	 	 	 
	 	Title:

	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	QS RETAIL, INC., a California corporation
	 
	 	 	 	 
	By: 
	 	 	 
	 	Name: 

	 	 	 
	 	Title:

	 	 	 
	 

	 	 

	 	 






Signature Page to Joinder Agreement



 









 






	 	 	 	 	 

	EXISTING DOMESTIC GUARANTOR:
	 
	 	 	 	 
	QUIKSILVER, INC., a Delaware corporation
	 
	By:
	 	 	 
	 	Name:

	 	 	 
	 	Title:

	 	 	 
	 

	 	 

	 	 






Signature Page to Joinder Agreement



 









 






Supplemental Schedules to Loan Documents




[see attached]



Joinder Agreement




 











 





Exhibit F-2




Form of Joinder Agreement — Canadian Loan Parties



JOINDER AGREEMENT



     This JOINDER AGREEMENT (this “Joinder”) is made as of                                         , by and among:




                                                                 , a    
                                                          (the “New
[Borrower/Guarantor]”), with its principal executive offices at
                                                            ; and




     BANK OF AMERICA, N.A. (acting through its Canada branch), a national banking
association with offices at 200 Front Street West, Toronto, Ontario, Canada, as Canadian
agent (in such capacity, the “Canadian Agent”) for its own benefit and the benefit
of the other Canadian Lenders;



     in consideration of the mutual covenants herein contained and benefits to be derived herefrom.



W I T N E S S E T H :




     A. Reference is made to that certain Credit Agreement dated as of July 31, 2009 (as amended,
amended and restated, modified, supplemented or restated and in effect from time to time, the
“Credit Agreement”) by and among, inter alia (i) Quiksilver Americas, Inc., as the Lead
Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from
time to time party thereto, including, without limitation, the Canadian Borrowers party thereto
(collectively, the “Existing Canadian Borrowers”) (iv) the Guarantors from time to time
party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as
Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent,
(vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) the Canadian Agent.
Capitalized terms used but not defined herein shall have the meanings set forth in the Credit
Agreement.



     B. Reference is also made to that certain Facility Guaranty, dated as of July 31, 2009,
executed by that certain Guarantor that is a Canadian Loan Party and party thereto (the
“Existing Canadian Guarantor”) in favor of the Canadian Agent and the other Canadian Credit
Parties pursuant to which the Existing Canadian Guarantor thereunder guarantees the payment and
performance of the Canadian Liabilities.



1









 





     C. The New [Borrower/Guarantor] desires to become a party to, and be bound by the terms of,
the Credit Agreement in the same capacity and to the same extent as the Existing Canadian
[Borrowers/Guarantor] thereunder.



     D. Pursuant to the terms of the Credit Agreement, in order for the New [Borrower/Guarantor] to
become party to the Credit Agreement as provided herein, the New [Borrower/Guarantor] and the
Existing Canadian Borrowers and Existing Canadian Guarantor are required to execute this Joinder.



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




	1.	 	Joinder and Assumption of Obligations. Effective as of the date of this Joinder, the
New [Borrower/Guarantor] hereby acknowledges that the New [Borrower/Guarantor] has received
and reviewed a copy of the Credit Agreement, and hereby:






	 	(a)	 	joins in the execution of, and becomes a party to, the Credit Agreement as a
[Canadian Borrower/Guarantor] thereunder, as indicated with its signature below;
	 
	 	(b)	 	covenants and agrees to be bound by all covenants, agreements, liabilities and
acknowledgments of a [Canadian Borrower/Guarantor] under the Credit Agreement as of the
date hereof (other than covenants, agreements, liabilities and acknowledgments that
relate solely to an earlier date), in each case, with the same force and effect as if
such New [Borrower/Guarantor] was a signatory to the Credit Agreement and was expressly
named as a [Canadian Borrower/Guarantor] therein;
	 
	 	(c)	 	makes all representations, warranties, and other statements of a [Canadian
Borrower/Guarantor] under the Credit Agreement as of the date hereof (other than
representations, warranties and other statements that relate solely to an earlier
date), in each case, with the same force and effect as if such New [Borrower/Guarantor]
was a signatory to the Credit Agreement and was expressly named as a [Canadian
Borrower/Guarantor] therein; and
	 
	 	(d)	 	assumes and agrees to perform all applicable duties and obligations of the
Existing Canadian [Borrowers/Guarantor] or under the Credit Agreement.






	2.	 	Supplemental Schedules. To the extent that any representations, warranties, and
covenants of the New [Borrower/Guarantor] require any amendments to the schedules to the
Credit Agreement or any of the other Loan Documents, such schedules are hereby updated, as
evidenced by any supplemental schedules (if any) annexed to this Joinder.




2









 












	3.	 	Ratification of Loan Documents. Except as specifically amended by this Joinder and
the other documents executed and delivered in connection herewith, all of the terms and
conditions of the Credit Agreement and of the other Loan Documents shall remain in full force
and effect as in effect prior to the date hereof, without releasing any Loan Party
thereunder or Collateral therefor.
	 
	4.	 	Conditions Precedent to Effectiveness. This Joinder shall not be effective until
each of the following conditions precedent has been fulfilled to the reasonable satisfaction
of the Canadian Agent and the Agents:






	 	(a)	 	This Joinder shall have been duly executed and delivered by the respective
parties hereto.
	 
	 	(b)	 	The New [Borrower/Guarantor] shall have delivered the following to the Canadian
Agent, in form and substance reasonably satisfactory to the Canadian Agent and the
Agents:






	 	(i)	 	Copies of the New [Borrower’s/Guarantor’s]
Organization Documents.
	 
	 	(ii)	 	Certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the New
[Borrower/Guarantor] evidencing (A) the authority of the New
[Borrower/Guarantor] to enter into this Joinder and the other Loan Documents to
which New [Borrower/Guarantor] is a party and (B) the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Joinder and the other Loan Documents to which
New [Borrower/Guarantor] is a party.
	 
	 	(iii)	 	Certificate of good standing (where applicable, or such other
customary functionally equivalent certificates, to the extent available in the
applicable jurisdiction) from the New [Borrower/Guarantor]’s jurisdiction of
organization.
	 
	 	(iv)	 	Certificates of good standing (where applicable or such other
customary functionally equivalent certificates, to the extent available in the
applicable jurisdiction) from each jurisdiction where the New
[Borrower’s/Guarantor’s] ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that
failure to so qualify in such jurisdiction could not be reasonably expected to
have a Material Adverse Effect.
	 
	 	(v)	 	A Perfection Certificate.




3









 












	 	(vi)	 	Execution and delivery by the New [Borrower/Guarantor] of the
following Loan Documents:






	 	a)	 	[In the case of a New Borrower, Joinders to the
Canadian Note and the Canadian Swing Line Note, as applicable];
	 
	 	b)	 	[A General Security Agreement, Deed of Hypothec
(if applicable) and each of the other Canadian Security Documents];
	 
	 	c)	 	[If the New [Borrower/Guarantor] maintains
Blocked Account(s), Blocked Account Agreement(s) with                                         ];
	 
	 	d)	 	[In the case of a New Guarantor, a Facility
Guaranty]; and
	 
	 	e)	 	To the extent required by the Loan Documents,
such other documents and agreements as the Canadian Agent or any of the
Agents may reasonably require.






	 	(c)	 	Upon the request of the Canadian Agent, the Canadian Agent shall have received
a customary written legal opinion of the New [Borrower/Guarantor]’s Canadian counsel,
addressed to the Canadian Agent and each Canadian Lender, covering such matters
relating to the New [Borrower/Guarantor], the Loan Documents and/or the transactions
contemplated thereby as the Canadian Agent may reasonably request.
	 
	 	(d)	 	To the extent required by the Loan Documents, the Canadian Agent shall have
received all documents and instruments, including PPSA financing statements and other
like filings and Blocked Account Agreements, required by applicable Laws or reasonably
requested by the Canadian Agent or any Agent to create or perfect the Liens intended to
be created under any Canadian Security Document and all such documents and instruments
shall have been so filed, registered or recorded to the satisfaction of the Canadian
Agent and the Agents.
	 
	 	(e)	 	The New [Borrower/Guarantor] shall have paid in full all reasonable fees and
documented out-of-pocket expenses incurred by the Canadian Agent and the Agents
(including, without limitation, the reasonable and documented fees and expenses of
counsel to the Canadian Agent and the Agents) in connection with the preparation,
negotiation, execution and delivery of this Joinder and related documents.






	5.	 	Miscellaneous.




4









 












	 	(a)	 	This Joinder may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument.
	 
	 	(b)	 	This Joinder and the other Loan Documents and instruments referred to herein
express the entire understanding of the parties with respect to the transactions
contemplated hereby. No prior negotiations or discussions shall limit, modify, or
otherwise affect the provisions hereof.
	 
	 	(c)	 	Any determination that any provision of this Joinder or any application hereof
is invalid, illegal or unenforceable in any respect and in any instance shall not
affect the validity, legality, or enforceability of such provision in any other
instance, or the validity, legality or enforceability of any other provisions of this
Joinder.
	 
	 	(d)	 	The New [Borrower/Guarantor] warrants and represents that the New
[Borrower/Guarantor] is not relying on any representations or warranties of any Agent
or the other Credit Parties or their counsel in entering into this Joinder.
	 
	 	(e)	 	THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.





[SIGNATURE PAGES FOLLOW]






5









 









     IN WITNESS WHEREOF, each of the undersigned has caused this Joinder to be duly executed and
delivered by its proper and duly authorized officer as of the date set forth below.




	 	 	 	 	 
	 	NEW [BORROWER/GUARANTOR]:




[                                                                       
         ]


 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CANADIAN AGENT:





BANK OF AMERICA, N.A. (acting through its Canada branch)


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Joinder Agreement







 









 









Acknowledged and Agreed:




EXISTING CANADIAN BORROWER:




	 	 	 	 	 
	QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company


 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Signature Page to Joinder Agreement






 









 







EXISTING CANADIAN GUARANTOR:




QS CANADA RETAIL CORP., a Nova Scotia 

unlimited liability company




	 	 	 	 	 
	 	 
	By:  	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Signature Page to Joinder Agreement






 









 








Supplemental Schedules to Loan Documents




[see attached]


Joinder Agreement





 











 





Exhibit G




Borrowing Base Certificate(s)




	 	 	 	 	 

	Quiksilver Americas, Inc.

	 	Certificate No.	 	 
	 

	 	 	 	 
	U.S. Borrowing Base Certificate

	 	Certificate Date	 	 
	 

	 	 	 	 







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A/R as of:	 	Quiksilver	 	 	DC Shoes	 	 	QS Retail	 	 	 	 	 	 	Total US	 	 	 	 
	lnventory as of:	 	US	 	 	US	 	 	US	 	 	Mervin	 	 	Company	 	 	 	 	 
	Trade accounts receivable per aging
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Less ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts > 60 days past due date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Accounts > 90 days past invoice date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Addback: extended terms 90-120 days past invoice
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Credit balances > 60 days past due date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Credit balances > 90 days past invoice date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Cross-age (50%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Foreign accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Government accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Intercompany accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Employee accounts/Promo
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Accounts due from bankrupt customers
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Chargebacks
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Finance charges / interest charges
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Unapplied cash
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Contra accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Credit memo lag reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Excess concentration (15%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Eligible trade accounts receivable
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	Advance rate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Trade Accounts Receivable Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Third party credit card receivables
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Less ineligibles
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Amounts outstanding > 5 business days.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	DC Shoes credit card receivables
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Eligible credit card receivables
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Advance Rate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Credit Card Receivable Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Finished goods inventory per perpetual at cost
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Raw materials
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Less ineligibles
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Irregulars / seconds (season “W”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Off-price styles (season “O”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Displays / brochures (product code “PP” / POP warehouse)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Drop ship — QDS warehouse
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Virtual warehouse inventory (Hawaii and other)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Inventory in foreign location (Hong Kong warehouse)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Raw materials — fabric & trim
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Raw materials — specialty (season “Y”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Raw materials — Mervin
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Work in process inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Goods at outside processors (including blank t-shirts)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	In-transit between stores & from warehouse to stores
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Supplies and packaging
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Samples
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 
	Unreconciled variance (if perpetual is greater than G/L)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	Retail Sales Since
Last Physical Adj.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Shrink
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Test count variance reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Eligible inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	Appraised NOLV
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Advance Rate (85% x NOLV)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	lnventory Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Eligible import in-transit inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Eligible import LIC inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Appraised NOLV
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Advance Rate (85% x NOLV)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	In-transit and L/C Inventory Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Total Available Collateral Before Reserves
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	Less availability reserves:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dilution reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	Gift certificates and merchandise credits (50%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Customer deposits (100%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Rent reserve (2 months rent in PA, VA and WA)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Self funded insurance (avg monthly claims paid)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Accrued royalties
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	In-transit short shipment reserve (5%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	Landing costs (26% of eligible imports in-transit)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Total availability reserves 
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 
	Total Domestic Borrowing Base (capped at $185MM)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 
	 	 	 	 	 





 









 






Quiksilver Americas, Inc.

U.S. Borrowing Base Certificate




	 	 	 	 	 
	Availability Calculation	 	As of:	 
	Total Domestic Borrowing Base
	 	 	—	 
	 
	 	 	 	 
	Beginning Principal Balance
	 	 	—	 
	 
	 	 	 	 
	Add: Prior Day Advance
	 	 	 	 
	Add: Fees Charged Today
	 	 	 	 
	Less: Prior Day Pay Down
	 	 	 	 
	 
	 	 	 	 
	Ending Principal Balance
	 	 	—	 
	 
	 	 	 	 
	Add: Standby Letters of Credit
	 	 	 	 
	Add: Documentary Letter of Credit
	 	 	 	 
	 
	 	 	 	 
	Total Obligations Prior to Today’s Advance Request
	 	 	—	 
	 
	 	 	 	 
	Total Availability Prior to Advance Request
	 	 	 	 
	 
	 	 	 	 
	Pay Down Amount
	 	 	 	 
	Advance Request
	 	 	 	 
	 
	 	 	 	 
	 
	Excess Availability
	 	 	—	 
	 




The undersigned represents and warrants that (a) the information set forth above is true,
complete and accurate, and has been prepared in accordance with the requirements of the Credit
Agreement between the Borrower and Bank of America, N.A.; (b) no “Default” (as defined in the Credit
Agreement) is presently in existence; and (c) all or a portion of the advance requested hereby will
be set aside by the Borrower to cover 100% of the Borrower’s obligation for sales tax on account of
sales since the most recent borrowing under the Loan Agreement.




	 	 	 	 
	Authorized Signer:
	 	 	
	 

	 	 	
	Name:
	 	 	
	 

	 	 	
	Title:
	 	 	
	 

	 	 	
	Lead Borrower:
	 	 	
	 

	 	 	






 











 





	 	 	 	 	 

	Quiksilver Americas, Inc.

	 	Exchange Rate as of Certificate Date                     
	 	Certificate No.                     
	Canadian Borrowing Base Certificate

	 	 	 	Certificate Date                     






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A/R as of: 6/30/09	 	Quiksilver	 	 	DC Shoes	 	 	QS Retail	 	 	Total Canadian	 	 	US Dollar	 	 	 	 	 
	Inventory as of: 6/30/09	 	Canada (CAD)	 	 	Canada (CAD)	 	 	Canada (CAD)	 	 	Company (CAD)	 	 	Equivalent	 	 	 	 	 
	Trade accounts receivable per aging
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Less ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts > 60 days past due date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Accounts > 90 days past invoice date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Addback: extended terms 90-120 days past invoice
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Credit balances > 60 days past due date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Credit balances > 90 days past invoice date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cross-age (50%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Foreign accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Government accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Intercompany accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Employee accounts/Promo
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts due from bankrupt customers
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Chargebacks
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Finance
charges / interest charges
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Unapplied cash
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Contra accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Excess concentration (15%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible trade accounts receivable
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Advance rate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Trade Accounts Receivable Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Third party credit card receivables
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Less ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Amounts outstanding >5 days
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	DC Shoes credit card receivables
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible credit card receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Advance Rate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Credit Card Receivable Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Finished goods inventory per perpetual at cost
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Less ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Irregulars / seconds (season “W”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Off-price
styles (season “O”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Displays/brochures (product code “PP” / POP warehouse)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Drop ship — QDS warehouse
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Virtual warehouse inventory (Hawaii and other)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Inventory in foreign location (Hong Kong warehouse)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials — fabric & trim
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials — specialty (season“Y”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials — Mervin
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Work in process inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Goods at
outside processors (including blank t-shirts)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	In-transit between stores & from warehouse to stores
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Supplies and packaging
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Samples
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 
	Unreconciled variance (if perpetual is greater than G/L)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	Retail Sales Since
Last Physical Adj.
	Shrink
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Test count variance reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Appraised NOLV
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Advance Rate (85% x NOLV)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Inventory Availability
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible
import in-transit inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Eligible import L/C inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Appraised NOLV
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Advance Rate (85% x NOLV)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	In-Transit and L/C Inventory Availability
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total Available Collateral Before Reserves
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Less availability reserves:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dilution reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Gift certificates and merchandise credits (50%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Customer deposits (100%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	GST tax reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	PST/QST tax reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Payroll-related taxes and income taxes — Canada
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	In-transit short shipment reserve (5%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Landing costs (26% of eligible imports in-transit)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total availability reserves
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total Canadian Borrowing Base
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total Canadian Line Limit
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	15,000,000	 	 	 	 	 
	 	 	 	 	 
	Amount
Available to Borrow — Lesser of Borrowing Base and Line Limit
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 





 









 






	 	 	 	 	 

	Quiksilver Americas, Inc.

	 	Exchange Rate as of Certificate Date                     
	 	Certificate No.                     
	Canadian Borrowing Base Certificate

	 	 	 	Certificate Date                     






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A/R as of: 6/30/09	 	Quiksilver	 	 	DC Shoes	 	 	QS Retail	 	 	Total Canadian	 	 	US Dollar	 	 	 	 	 
	Inventory as of: 6/30/09	 	Canada (CAD)	 	 	Canada (CAD)	 	 	Canada (CAD)	 	 	Company (CAD)	 	 	Equivalent	 	 	 	 	 
	Trade accounts receivable per aging
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Less Ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts > 60 days past due date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Accounts > 90 days past invoice date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Addback: extended terms 90-120 days past invoice
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Credit balances > 60 days past due date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Credit balances > 90 days past invoice date
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cross-age (50%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Foreign accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Government accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Intercompany accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Employee accounts/Promo
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts due from bankrupt customers
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Chargebacks
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Finance charges / interest charges
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Unapplied cash
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Contra accounts
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Excess concentration (15%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible trade accounts receivable
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Advance rate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Trade Accounts Receivable Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Third party credit card receivables
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Less ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Amounts outstanding > 5 days
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	DC Shoes credit card receivables
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible credit card receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Advance Rate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Credit Card Receivable Availability
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Finished goods inventory per perpetual at cost
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Less ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Irregulars / seconds (season “W”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Off-price
styles (season “O”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Displays / brochures (product code “ PP” / POP warehouse)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Drop ship — QDS warehouse
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Virtual warehouse inventory (Hawaii and other)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Inventory in foreign location (Hong Kong
warehouse)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials — fabric & trim
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials — specialty (season “Y”)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Raw materials — Mervin
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Work in process inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Goods at outside processors (including
blank t-shirts)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	In-transit between stores & from warehouse to
stores
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Supplies and packaging
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Samples
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 
	Unreconciled variance (if perpetual is greater than G/L)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	Retail Sales Since
Last Physical Adj.
	Shrink
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Test count variance reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Appraised NOLV
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Advance Rate (85% x NOLV)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Inventory Availability
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Eligible import in-transit inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Eligible import L/C inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Appraised NOLV
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Advance Rate (85% x NOLV)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	In-Transit and L/C Inventory Availability
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total Available Collateral Before Reserves
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 
	Less availablity reserves:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dilution reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	Gift certificates and merchandise credits (50%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Customer deposits (100%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	GST tax reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	PST/QST tax reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Payroll-related taxes and income taxes — Canada
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	In-transit short shipment reserve (5%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	Landing costs (26% of eligible imports in-transit)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total availability reserves
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total Canadian Borrowing Base
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Total Canadian Line Limit
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	15,000,000	 	 	 	 	 
	 	 	 	 	 
	Amount Available to Borrow-Lesser of Borrowing Base and Line Limit
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 	 	 	 	 	 	 	 	 
	 	 	 	 	 





 









 






	 	 	 

	Quiksilver Americas, Inc.
	 	 
	Canadian Borrowing Base Certificate

	 	Exchange Rate as of Certificate
Date                                         






	 	 	 	 	 	 	 	 	 
	 	 	As of:	 
	Availability Calculation	 	CAD	 	 	USD	 
	Total Canadian Borrowing Base
	 	 	—	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Beginning Principal Balance
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Add: Prior Day Advance
	 	 	 	 	 	 	 	 
	Add: Fees Charged Today
	 	 	 	 	 	 	 	 
	Less: Prior Day Pay Down
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Ending Principal Balance
	 	 	—	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Add: Standby Letters of Credit
	 	 	 	 	 	 	 	 
	Add: Documentary Letter of Credit
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total Obligations Prior to Today’s Advance Request
	 	 	—	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total
Availability Prior to Advance Request
	 	 	—	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Pay Down Amount
	 	 	 	 	 	 	 	 
	Advance Request
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	Excess Availability
	 	 	—	 	 	 	 	 
	 





The undersigned represents and warrants that (a) the information set forth above is true, complete and accurate, and has been prepared in
accordance with the requirements of the Credit Agreement between the Borrower and Bank of America, N.A.; (b) no “Default” (as defined in the
Credit Agreement) is presently in existence; and (c) all or a portion of the advance requested hereby will be set aside by the Borrower to
cover 100% of the Borrower’s obligation for sales tax on account of sales since the most recent borrowing under the Loan Agreement




	 	 	 	 
				
	Authorized Signer:
	 	 	
	 

	 	 	
	Name:
	 	 	
	 

	 	 	
	Title:
	 	 	
	 

	 	 	
	Lead Borrower:
	 	 	
	 

	 	 	






 











 





Exhibit H




FORM OF CREDIT CARD PROCESSOR NOTIFICATION



CREDIT CARD PROCESSOR NOTIFICATION



PREPARE ON BORROWER/LOAN PARTY LETTERHEAD — ONE FOR EACH PROCESSOR



July __, 2009





	To: 	 	[First Data Corporation]


[6200 South Quebec St.

Greenwood Village, CO 80111]

(the “Processor”)1







	 	Re:	 	[QS Retail, Inc.]

Merchant Account Number:                                                             




Dear Sir/Madam:




     [QS RETAIL, INC., a California corporation] (the “Borrower”),2 has entered
into various financing agreements with BANK OF AMERICA, N.A., a national banking association with
offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as administrative agent (in
such capacity, the “Administrative Agent”) for its own benefit and the benefit of certain
other credit parties (the “Credit Parties”), pursuant to which the Administrative Agent and
the other Credit Parties may from time to time make loans or furnish certain other financial
accommodations to the Borrower. The Borrower’s obligations on account of such loans and financial
accommodations are secured by, among other things, all credit card charges submitted by the
Borrower to the Processor for processing and the amounts which the Processor owes to the Borrower
on account thereof (the “Credit Card Proceeds”).



     The Processor is hereby instructed that (a) unless and until the Processor receives written
notification from the Administrative Agent directing the Processor not to act on the Borrower’s
instructions (a “Notice of Control”), and (b) so long as no Control Period (defined below) is in
effect all amounts as may become due from time to time from the Processor to the Borrower may be
transferred in accordance with the Borrower’s instructions.



     As used herein, the term “Control Period” shall mean such period of time beginning with the
day that the Processor shall receive a Notice of Control from the Administrative Agent and ending
upon the day the Processor shall receive a notice (a “Control Cancellation Notice”) from the
Administrative Agent that the previously issued Notice of Control is no longer in effect.





 




			
	1	 	The identity of the Processor should be
changed to the appropriate Processor as necessary.
	 
	2	 	The identity of the Borrower should be
changed to the appropriate Borrower as necessary.




1









 










     From and after receipt of a Notice of Control, and for the duration of the related Control
Period, all amounts as may become due from time to time from the Processor to the Borrower
(including, without limitation, Credit Card Proceeds, payments from any reserve account or the
like, or other payments) shall be transferred only as follows:




	 	(a)	 	By ACH, Depository Transfer Check, or Electronic Depository Transfer to:




Bank of America, N.A.

ABA #[                                        ]

Account Name: [                    ]

Account No.                                         



or





	 	(b)	 	As the Processor may be otherwise instructed from time to time in writing by an
officer of the Administrative Agent.





     Upon the written request of the Administrative Agent, a copy of each periodic statement issued
by the Processor to the Borrower should be provided to the Administrative Agent at the following
address (which address may be changed upon seven (7) days written notice given to the Processor by
the Administrative Agent):


Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Stephen J. Garvin, Managing Director

Re: Quiksilver




     The Processor shall be fully protected in acting on any order or direction by the
Administrative Agent respecting the Credit Card Proceeds and other amounts without making any
inquiry whatsoever as to the Administrative Agent’s right or authority to give such order or
direction or as to the application of any payment made pursuant thereto. Nothing contained herein
is intended to, nor shall it be deemed to, modify the rights and obligations of the Borrower and
the Administrative Agent under the terms of the loan arrangement and the loan documents executed in
connection therewith between, among others, the Borrower and the Administrative Agent.



     This Credit Card Notification may be amended only by the written agreement of the Processor,
the Borrower and the Administrative Agent and may be terminated solely by written notice signed by
an officer of the Administrative Agent. The Borrower shall not have any right to terminate this
Credit Card Notification or, except as provided in this Credit Card Notification, amend it.



2









 





	 	 	 	 	 
	 	Very truly yours,



[QS RETAIL, INC.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


cc: Bank of America, N.A., as Administrative Agent





3











 





Exhibit I-1




Form of Collateral Access Agreement



LANDLORD’S WAIVER




July          , 2009




     For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,              
               
            , a      
                 
                
   (the “Landlord”), executes this waiver in
favor of BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) for its own benefit and the benefit of certain other credit parties (the “Credit
Parties”) which are making loans or furnishing other financial accommodations to the Tenant (as
defined below).



WITNESSETH:




     WHEREAS, the Landlord owns real property located at ___________________ (collectively, the
“Leased Premises”), which real property the Landlord leases to [Quiksilver, Inc.], a
corporation organized and existing under the laws of the State of [Delaware] (the
“Tenant”)1.



     WHEREAS, the Tenant has entered into certain loan arrangements with the Administrative Agent
and the Credit Parties, pursuant to which the Administrative Agent and the Credit Parties have
agreed to make loans or furnish other financial accommodations to the Tenant.



     WHEREAS, loans and financial accommodations under the loan arrangement will be secured by,
among other things, all of the Tenant’s present and after acquired assets (the
“Collateral”), including, without limitation, the Tenant’s inventory and equipment located,
and to be located, upon the Leased Premises.



     WHEREAS, in order to induce the Administrative Agent and the Credit Parties to make loans or
furnish other financial accommodations to the Tenant, the Landlord hereby represents, warrants,
covenants and agrees as follows:




	1.	 	To the best of the Landlord’s knowledge, the Tenant is not in default under the terms of its
lease of the Leased Premises.







 




			
	1	 	The identity of the Tenant should be changed
to the appropriate Loan Party as necessary.




1









 











	2.	 	The Landlord hereby waives and releases in favor of the Administrative Agent and the Credit
Parties: (a) any and all rights of distraint, levy, and execution which the Landlord may now
or hereafter have against the Collateral; (b) any and all statutory liens, security interests,
or other liens which the Landlord may now or hereafter have in the Collateral; and (c) any and
all other interests or claims of every nature whatsoever which the Landlord may now or
hereafter have in or against the Collateral for any rent, storage charges, or other sums due,
or to become due, to the Landlord by the Tenant. The Landlord agrees not to exercise any of
the Landlord’s rights, remedies, powers, privileges, or discretions with respect to the
Collateral, or the Landlord’s liens or security interests in the Collateral, unless and until
the Landlord receives written notice from an officer of the Administrative Agent that the
Tenant’s obligations to the Administrative Agent and the Credit Parties have been paid in
full, and that the commitment of the Administrative Agent and the Credit Parties to make loans
or furnish other financial accommodations to the Tenant has been terminated. The foregoing
waiver is for the benefit of the Administrative Agent and the Credit Parties only and does not
affect the obligations of the Tenant to the Landlord.
	 
	3.	 	In the event of the exercise by the Administrative Agent of its rights upon default with
respect to the Collateral, the Administrative Agent shall have a reasonable time in which to
repossess and/or dispose of the Collateral from the Leased Premises; provided,
however, that such period will be tolled during any period in which the Administrative
Agent has been stayed from taking action to remove the Collateral in any bankruptcy,
insolvency or similar proceeding, and the Administrative Agent shall have an additional period
of time thereafter in which to repossess and/or dispose of the Collateral from the Leased
Premises. In those circumstances, the Landlord will, upon reasonable prior written notice
from the Administrative Agent, (a) cooperate with the Administrative Agent in gaining access
to the Leased Premises for the purpose of repossessing said Collateral and (b) if requested by
the Administrative Agent, permit the Administrative Agent, or its agents or nominees, to
dispose of the Collateral on the Leased Premises in a manner reasonably designed to minimize
any interference with any of the Landlord’s other tenants at the Leased Premises. The
Administrative Agent shall promptly repair, at the Administrative Agent’s expense, any
physical damage to the Leased Premises actually caused by removal of the Collateral, but shall
not be liable for any diminution in value of the Leased Premises caused by the removal or
absence of the Collateral.
	 
	4.	 	To the extent not paid or prepaid by the Tenant, the Administrative Agent shall pay the
Landlord a sum for its use and occupancy of the Leased Premises on a per diem basis in an
amount equal to the monthly base rent required to be paid by the Tenant under the lease
between the Landlord and the Tenant from the date on which the Administrative Agent shall have
taken possession of the Collateral on the Leased Premises until the date on which the
Administrative Agent vacates the Leased Premises, it being understood, however, that the
Administrative Agent shall not, thereby, have assumed any of the obligations of the Tenant to
the Landlord, including, without limitation, any obligation to pay any past due rent owing by
the Tenant.




2









 












	5.	 	Prior to the Landlord’s terminating its lease with the Tenant or evicting the Tenant from the
Leased Premises for breach of the lease, the Landlord shall give the Administrative Agent not
less than sixty (60) days written notice of such action at the address set forth below, and a
reasonable opportunity to preserve, protect, liquidate, or remove any Collateral on the Leased
Premises and, if the Administrative Agent so elects, to cure such breach of the lease.
Notwithstanding the provisions of this paragraph, the Administrative Agent shall have no
obligation to cure any such breach or default. The cure of any such breach or default by the
Administrative Agent on any one occasion shall not obligate the Administrative Agent to cure
any other breach or default or to cure such default on any other occasion.
	 
	6.	 	All notices under this waiver shall be made to the following addresses by recognized
overnight courier, by hand delivery or by facsimile transmission:




If to the Administrative Agent:



Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Stephen J. Garvin, Managing Director

Re: Quiksilver



If to the Landlord:



                                                            



                                                            



                                                            



Attention:                                            





	7.	 	This waiver shall inure to the benefit of the Administrative Agent and each of the Credit
Parties, and their respective successors and assigns, and shall be binding upon the Landlord,
its heirs, assigns, representatives, and successors.
	 
	8.	 	This waiver may not be amended or waived except by an instrument in writing signed by the
Administrative Agent, the Landlord, and the Tenant. This waiver shall be governed by, and
construed in accordance with, the laws of the State of New York. Delivery of an executed
signature page of this waiver by facsimile transmission shall be binding on the Landlord as if
the original of such facsimile had been delivered to the Administrative Agent.





[signature page follows]






3









 







Dated as of the date above first written.




	 	 	 	 	 
	 	LANDLORD:

 	 
	 	
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Landlord Waiver





 











 





Exhibit I-2

Form of Collateral Access Agreement (Canadian Loan Parties)




LANDLORD’S WAIVER




July ____, 2009




     For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ________________, a _____________ (the “Landlord”), executes this waiver in
favor of BANK OF AMERICA, N.A. (acting through its Canada Branch), as Canadian agent (in such
capacity, the “Agent”) for its own benefit and the benefit of certain other credit parties
(the “Credit Parties”) which are making loans or furnishing other financial accommodations
to the Tenant (as defined below).



WITNESSETH:




     WHEREAS, the Landlord owns real property located at ___________________ (collectively, the
“Leased Premises”), which real property the Landlord leases to [Quiksilver, Canada
Corp.][QS Retail Canada Corp.], a corporation organized and existing under the laws of the Province
of Nova Scotia (the “Tenant”)1.



     WHEREAS, the Tenant has entered into certain loan arrangements with the Agent and the Credit
Parties, pursuant to which the Agent and the Credit Parties have agreed to make loans or furnish
other financial accommodations to the Tenant.



     WHEREAS, loans and financial accommodations under the loan arrangement will be secured by,
among other things, all of the Tenant’s present and after acquired assets (the
“Collateral”), including, without limitation, the Tenant’s inventory and equipment located,
and to be located, upon the Leased Premises.



     WHEREAS, in order to induce the Agent and the Credit Parties to make loans or furnish other
financial accommodations to the Tenant, the Landlord hereby represents, warrants, covenants and
agrees as follows:




	1.	 	To the best of the Landlord’s knowledge, the Tenant is not in default under the terms of its
lease of the Leased Premises.
	 
	2.	 	The Landlord hereby waives and releases in favor of the Agent and the Credit Parties: (a) any
and all rights of distraint, levy, and execution which the Landlord may now or hereafter have
against the Collateral; (b) any and all statutory liens, security interests, or







 




			
	1	 	The identity of the Tenant should be changed
to the appropriate Loan Party as necessary.




1









 











		 	other liens which the Landlord may now or hereafter have in the Collateral; and (c) any and
all other interests or claims of every nature whatsoever which the Landlord may now or
hereafter have in or against the Collateral for any rent, storage charges, or other sums
due, or to become due, to the Landlord by the Tenant. The Landlord agrees not to exercise
any of the Landlord’s rights, remedies, powers, privileges, or discretions with respect to
the Collateral, or the Landlord’s liens or security interests in the Collateral, unless and
until the Landlord receives written notice from an officer of the Agent that the Tenant’s
obligations to the Agent and the Credit Parties have been paid in full, and that the
commitment of the Agent and the Credit Parties to make loans or furnish other financial
accommodations to the Tenant has been terminated. The foregoing waiver is for the benefit
of the Agent and the Credit Parties only and does not affect the obligations of the Tenant
to the Landlord.
	 
	3.	 	In the event of the exercise by the Agent of its rights upon default with respect to the
Collateral, the Agent shall have a reasonable time in which to repossess and/or dispose of the
Collateral from the Leased Premises; provided, however, that such period will
be tolled during any period in which the Agent has been stayed from taking action to remove
the Collateral in any bankruptcy, insolvency or similar proceeding, and the Agent shall have
an additional period of time thereafter in which to repossess and/or dispose of the Collateral
from the Leased Premises. In those circumstances, the Landlord will, upon reasonable prior
written notice from the Agent, (a) cooperate with the Agent in gaining access to the Leased
Premises for the purpose of repossessing said Collateral and (b) if requested by the Agent,
permit the Agent, or its agents or nominees, to dispose of the Collateral on the Leased
Premises in a manner reasonably designed to minimize any interference with any of the
Landlord’s other tenants at the Leased Premises. The Agent shall promptly repair, at the
Agent’s expense, any physical damage to the Leased Premises actually caused by removal of the
Collateral, but shall not be liable for any diminution in value of the Leased Premises caused
by the removal or absence of the Collateral.
	 
	4.	 	To the extent not paid or prepaid by the Tenant, the Agent shall pay the Landlord a sum for
its use and occupancy of the Leased Premises on a per diem basis in an amount equal to the
monthly base rent required to be paid by the Tenant under the lease between the Landlord and
the Tenant from the date on which the Agent shall have taken possession of the Collateral on
the Leased Premises until the date on which the Agent vacates the Leased Premises, it being
understood, however, that the Agent shall not, thereby, have assumed any of the obligations of
the Tenant to the Landlord, including, without limitation, any obligation to pay any past due
rent owing by the Tenant.
	 
	5.	 	Prior to the Landlord’s terminating its lease with the Tenant or evicting the Tenant from the
Leased Premises for breach of the lease, the Landlord shall give the Agent not less than sixty
(60) days written notice of such action at the address set forth below, and a reasonable
opportunity to preserve, protect, liquidate, or remove any Collateral on the Leased Premises
and, if the Agent so elects, to cure such breach of the lease.




2









 












	 	 	Notwithstanding the provisions of this paragraph, the Agent shall have no obligation to cure
any such breach or default. The cure of any such breach or default by the Agent on any one
occasion shall not obligate the Agent to cure any other breach or default or to cure such
default on any other occasion.
	 
	6.	 	All notices under this waiver shall be made to the following addresses by recognized
overnight courier, by hand delivery or by facsimile transmission:




If to the Agent:



Bank of America, N.A. (acting through its Canada Branch)

200 Front Street West

Toronto, Ontario, Canada M5V 3L2

Attention: ___________________

Re: Quiksilver



If to the Landlord:



____________________________



_____________________________



_____________________________



Attention: ____________________





	7.	 	This waiver shall inure to the benefit of the Agent and each of the Credit Parties, and their
respective successors and assigns, and shall be binding upon the Landlord, its heirs, assigns,
representatives, and successors.
	 
	8.	 	This waiver may not be amended or waived except by an instrument in writing signed by the
Agent, the Landlord, and the Tenant. This waiver shall be governed by, and construed in
accordance with, the laws of the Province of Ontario, without giving effect to the conflict of
laws principles thereof. Delivery of an executed signature page of this waiver by facsimile
transmission shall be binding on the Landlord as if the original of such facsimile had been
delivered to the Agent.





[signature page follows]






3









 







Dated as of the date above first written.




	 	 	 	 	 
	 	LANDLORD:

 	 
	 	
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Landlord Waiver

















 





Exhibit J-1




Form of Customs Broker Agency Agreement

(Domestic Loan Parties)


Name and Address of Customs Broker:




	 	 	 	 	 

	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	Attention:
	 	 	 	 
	 

	 	 	 	 




Dear Sir/Madam:




     [                                                            ], a corporation organized and
existing under the laws of
[                                        ] (the “Company”), among others, has entered into financing agreements
with, among others, Bank of America, N.A., a national banking association with offices at 100
Federal Street, 9th Floor, Boston, Massachusetts 02110, as administrative agent (in such
capacity herein, the “Administrative Agent”) for its own benefit and the benefit of a
syndicate of revolving lenders and certain other credit parties (collectively, the “Credit
Parties”) which are making loans or furnishing other financial accommodations to the Company or
its subsidiaries or affiliates, pursuant to which agreements the Company has granted to the
Administrative Agent, for its own benefit and the benefit of the other Credit Parties, a security
interest in and to, substantially all of the Company’s assets (the “Collateral”),
including, among other things, all of the Company’s inventory, goods, documents, bills of lading
and other documents of title.



     The Administrative Agent has requested that you (the “Customs Broker”) act as its
agent for the limited purpose of more fully perfecting and protecting the interest of the
Administrative Agent and the other Credit Parties in such bills of lading, documents and other
documents of title, and in the goods and inventory for which such bills of lading, documents, or
other documents of title have been issued, and, by acknowledging and executing this letter
agreement (this “Agreement”), the Customs Broker has agreed to do so. This Agreement shall
set forth the terms of the Customs Broker’s engagement.



     1. Acknowledgment of Security Interest: The Customs Broker acknowledges, consents, and agrees
that the Company has assigned to the Administrative Agent, for its own benefit and the benefit of
the other Credit Parties, all of the Company’s right, title, and interest in, to and under all
goods or documents constituting, evidencing, or relating to such inventory and any contracts or
agreements with carriers, customs brokers, and/or freight forwarders for shipment or delivery of
such goods.



     2. Appointment of Customs Broker as Agent of Administrative Agent: The Customs Broker is
hereby appointed as agent for the Administrative Agent to receive and retain possession of all
bills of lading, waybills, documents, and any other documents of title or



 









 




carriage constituting, evidencing, or relating to the Company’s goods, inventory or other
property (collectively, the “Title Documents”) heretofore or at any time hereafter issued
for any goods, inventory, or other property of the Company which are received by the Customs Broker
for processing (collectively, the “Property”), such receipt and retention of possession
being for the purpose of more fully perfecting and preserving the Administrative Agent’s security
interests in the Title Documents and the Property. The Customs Broker will maintain possession of
the Title Documents and the Property, subject to the security interest of the Administrative Agent,
and will note the security interests of the Administrative Agent on the Customs Broker’s books and
records. In the event that the Administrative Agent is designated as the consignor, co-consignor,
consignee or co-consignee on any such Title Documents, subject to the terms and conditions hereof,
the Administrative Agent hereby appoints the Customs Broker as its attorney-in-fact solely to
execute and deliver any such Title Documents for and on behalf of the Administrative Agent pursuant
to the terms of this Agreement.




     3. Delivery of Title Documents; Release of Goods: Until the Customs Broker receives written
notification from the Administrative Agent to the contrary (in accordance with Section 4 below),
the Customs Broker is authorized by the Administrative Agent to, and the Customs Broker may,
deliver:




     (a) the Title Documents to the issuing carrier or to its agent (who shall act on the
Customs Broker’s behalf as the Customs Broker’s sub-agent hereunder) for the purpose of
permitting the Company, as consignee, to obtain possession or control of the Property
subject to such Title Documents; and




     (b) the Property, in each instance as directed by the Company.



     4. Notice To Follow Administrative Agent’s Instructions: Upon the Customs Broker’s receipt of
written notification from the Administrative Agent, the Customs Broker shall thereafter follow
solely the instructions of the Administrative Agent concerning the disposition of the Title
Documents and the Property and will not follow any instructions of the Company or any other person
concerning the same.



     5. Limited Authority: The Customs Broker’s sole authority as the agent of the Administrative
Agent is to receive and maintain possession of the Title Documents on behalf of the Administrative
Agent and to follow the instructions of the Administrative Agent to the extent provided herein.
Except as may be specifically authorized and instructed by the Administrative Agent, the Customs
Broker shall have no authority as the agent of the Administrative Agent to undertake any other
action or to enter into any other commitments on behalf of the Administrative Agent.



     6. Expenses: The Administrative Agent shall not be obligated to compensate the Customs Broker
for serving as agent hereunder, nor shall the Administrative Agent be responsible for any fees,
expenses, customs, duties, taxes, or other charges relating to the Title Documents or the Property.
The Customs Broker acknowledges that the Company is solely responsible for payment of any
compensation and charges which are to the Company’s account. The Company is further responsible
for paying any fees, expenses, customs duties, taxes, or other charges which are, or may, accrue,
to the account of the Title Documents or the Property.



2









 




The Administrative Agent may, in its discretion, authorize the Customs Broker to perform
specified services on behalf of the Administrative Agent at mutually agreed rates of compensation,
which shall be charged to the Administrative Agent’s account, and payable to the Customs Broker by
the Administrative Agent (provided, however, such payment shall not affect any obligation of the
Company to reimburse the Administrative Agent for any such compensation or other costs or expenses
incurred by the Administrative Agent pursuant to the terms of the financing agreements referred to
above).




     7. Term of Agreement; Notices; Amendments:




     (a) In the event that the Customs Broker desires to terminate this Agreement, the
Customs Broker shall furnish the Administrative Agent with sixty (60) days prior written
notice of the Customs Broker’s intention to do so. During such sixty (60) day period (which
may be shortened by notice to the Customs Broker from the Administrative Agent), the Customs
Broker shall continue to serve as agent hereunder. The Customs Broker shall also cooperate
with the Administrative Agent and execute all such documentation and undertake all such
action as may be reasonably required by the Administrative Agent in connection with such
termination.




     (b) Except as provided in Section 7(a), above, this Agreement shall remain in full
force and effect until the Customs Broker receives written notification from the
Administrative Agent of the termination of the Customs Broker’s responsibilities hereunder.




     (c) Any written notice provided to any party hereto shall be delivered to such party at
the following address (or to such other address, written notice of which is given by such
party to the other parties hereto in writing with at least seven (7) days’ prior written
notice):


If to the Administrative Agent:



Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention: Stephen J. Garvin, Managing Director

Re: Quiksilver



If to Customs Broker:



                                                            



                                                            



                                                            



Attention:                                            





     (d) This Agreement may be amended only by notice in writing signed by the Company and
an officer of the Administrative Agent and may be terminated solely by written notice signed
by the Company and an officer of the Administrative Agent.



3









 





     8. Custom Broker’s Lien: The Customs Broker shall have a lien, to the extent provided by law,
on any Property then in the possession of the Customs Broker, which lien shall be to the extent of
any out-of-pocket costs, fees, freight charges, storage charges, or other charges or out-of-pocket
expenses incurred or paid by the Customs Broker with respect only to that Property then in the
possession of the Customs Broker, for which the Customs Broker has not received payment, but not
for any amount owed on account of any other Property, item, or matter.



     9. Counterparts; Integration: This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This Agreement constitutes
the entire agreement between the Customs Broker and the Administrative Agent relating to the
subject matter hereof. In the event that the terms of any agreement between the Company and
Customs Broker (a) are in conflict or are inconsistent with the terms of this Agreement, the terms
of this Agreement shall govern, or (b) provide rights in favor of the Customs Broker in the Title
Documents or the Property which are greater than those provided herein, such rights shall be
limited to the extent provided for herein. This Agreement shall become effective when it shall
have been executed by the parties and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy or other electronic transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.



     10. Governing Law: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES).



[SIGNATURE PAGE FOLLOWS]




4









 





     If the foregoing correctly sets forth our understanding, please indicate the Customs Broker’s
assent below, following which this letter will take effect.



	 	 	 	 	 
	 	Very truly yours,





COMPANY:





[                                                            ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Agreed:



CUSTOMS BROKER:



[                                                            ]




	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 


ADMINISTRATIVE AGENT:



BANK OF AMERICA, N.A.




	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Signature Page to Customs Broker Agency Agreement





 











 





Exhibit J-2



Form of Customs Broker Agency Agreement

(Canadian Loan Parties)


Name and Address of Customs Broker:





	 	 	 

	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

Attention:                  
                         

	 	 





Dear Sir/Madam:




     
[                  
                    
                      
], a corporation organized and existing under the laws of [                  
                      ] (the “Company”), among others, has entered into financing agreements
with, among others, Bank of America, N.A. (acting through its Canada branch), a banking corporation
carrying on business under the Bank Act (Canada), having a place of business at 200 Front Street
West, Toronto, Ontario, Canada M5V 3L2, as Canadian Agent (in such capacity herein, the
“Canadian Agent”) for its own benefit and the benefit of a syndicate of revolving lenders
and certain other credit parties (collectively, the “Credit Parties”) which are making
loans or furnishing other financial accommodations to the Company or its subsidiaries or
affiliates, pursuant to which agreements the Company has granted to the Canadian Agent, for its own
benefit and the benefit of the other Credit Parties, a security interest in and to, substantially
all of the Company’s assets (the “Collateral”), including, among other things, all of the
Company’s inventory, goods, documents, bills of lading and other documents of title.



     The Canadian Agent has requested that you (the “Customs Broker”) act as its agent for
the limited purpose of more fully perfecting and protecting the interest of the Canadian Agent and
the other Credit Parties in such bills of lading, documents and other documents of title, and in
the goods and inventory for which such bills of lading, documents, or other documents of title have
been issued, and, by acknowledging and executing this letter agreement (this “Agreement”),
the Customs Broker has agreed to do so. This Agreement shall set forth the terms of the Customs
Broker’s engagement.



     1. Acknowledgment of Security Interest: The Customs Broker acknowledges, consents, and agrees
that the Company has assigned to the Canadian Agent, for its own benefit and the benefit of the
other Credit Parties, all of the Company’s right, title, and interest in, to and under all goods or
documents constituting, evidencing, or relating to such inventory and any contracts or agreements
with carriers, customs brokers, and/or freight forwarders for shipment or delivery of such goods.



     2. Appointment of Customs Broker as Agent of Canadian Agent: The Customs Broker is hereby
appointed as agent for the Canadian Agent to receive and retain possession of all bills of lading,
waybills, documents, and any other documents of title or carriage constituting,



 









 




evidencing, or relating to the Company’s goods, inventory or other property (collectively, the “Title
Documents”) heretofore or at any time hereafter issued for any goods, inventory, or other
property of the Company which are received by the Customs Broker for processing (collectively, the
“Property”), such receipt and retention of possession being for the purpose of more fully
perfecting and preserving the Canadian Agent’s security interests in the Title Documents and the
Property. The Customs Broker will maintain possession of the Title Documents and the Property,
subject to the security interest of the Canadian Agent, and will note the security interests of the
Canadian Agent on the Customs Broker’s books and records. In the event that the Canadian Agent is
designated as the consignor, co-consignor, consignee or co-consignee on any such Title Documents,
subject to the terms and conditions hereof, the Canadian Agent hereby appoints the Customs Broker
as its attorney-in-fact solely to execute and deliver any such Title Documents for and on behalf of
the Canadian Agent pursuant to the terms of this Agreement.




     3. Delivery of Title Documents; Release of Goods: Until the Customs Broker receives written
notification from the Canadian Agent to the contrary (in accordance with Section 4 below), the
Customs Broker is authorized by the Canadian Agent to, and the Customs Broker may, deliver:




     (a) the Title Documents to the issuing carrier or to its agent (who shall act on the
Customs Broker’s behalf as the Customs Broker’s sub-agent hereunder) for the purpose of
permitting the Company, as consignee, to obtain possession or control of the Property
subject to such Title Documents; and




     (b) the Property, in each instance as directed by the Company.



     4. Notice To Follow Canadian Agent’s Instructions: Upon the Customs Broker’s receipt of
written notification from the Canadian Agent, the Customs Broker shall thereafter follow solely the
instructions of the Canadian Agent concerning the disposition of the Title Documents and the
Property and will not follow any instructions of the Company or any other person concerning the
same.



     5. Limited Authority: The Customs Broker’s sole authority as the agent of the Canadian Agent
is to receive and maintain possession of the Title Documents on behalf of the Canadian Agent and to
follow the instructions of the Canadian Agent to the extent provided herein. Except as may be
specifically authorized and instructed by the Canadian Agent, the Customs Broker shall have no
authority as the agent of the Canadian Agent to undertake any other action or to enter into any
other commitments on behalf of the Canadian Agent.



     6. Expenses: The Canadian Agent shall not be obligated to compensate the Customs Broker for
serving as agent hereunder, nor shall the Canadian Agent be responsible for any fees, expenses,
customs, duties, taxes, or other charges relating to the Title Documents or the Property. The
Customs Broker acknowledges that the Company is solely responsible for payment of any compensation
and charges which are to the Company’s account. The Company is further responsible for paying any
fees, expenses, customs duties, taxes, or other charges which are, or may, accrue, to the account
of the Title Documents or the Property. The Canadian Agent may, in its discretion, authorize the
Customs Broker to perform specified services on



2









 




behalf of the Canadian Agent at mutually agreed
rates of compensation, which shall be charged to the Canadian Agent’s account, and payable to the
Customs Broker by the Canadian Agent (provided, however, such payment shall not affect any
obligation of the Company to reimburse the Canadian Agent for any such compensation or other costs
or expenses incurred by the Canadian Agent pursuant to the terms of the financing agreements
referred to above).




     7. Term of Agreement; Notices; Amendments:




     (a) In the event that the Customs Broker desires to terminate this Agreement, the
Customs Broker shall furnish the Canadian Agent with sixty (60) days prior written notice of
the Customs Broker’s intention to do so. During such sixty (60) day period (which may be
shortened by notice to the Customs Broker from the Canadian Agent), the Customs Broker shall
continue to serve as agent hereunder. The Customs Broker shall also cooperate with the
Canadian Agent and execute all such documentation and undertake all such action as may be
reasonably required by the Canadian Agent in connection with such termination.




     (b) Except as provided in Section 7(a), above, this Agreement shall remain in full
force and effect until the Customs Broker receives written notification from the Canadian
Agent of the termination of the Customs Broker’s responsibilities hereunder.




     (c) Any written notice provided to any party hereto shall be delivered to such party at
the following address (or to such other address, written notice of which is given by such
party to the other parties hereto in writing with at least seven (7) days’ prior written
notice):


If to the Canadian Agent:




Bank of America, N.A. (acting through its Canada branch)

200 Front Street West

Toronto, Ontario, Canada M5V 3L2

Attention:                                         

Re: Quiksilver




If to Customs Broker:





                  
                    
                      



              
                        
                      



              
                      
                        



Attention:                
                             





     (d) This Agreement may be amended only by notice in writing signed by the Company and
an officer of the Canadian Agent and may be terminated solely by written notice signed by
the Company and an officer of the Canadian Agent.



3









 





     8. Custom Broker’s Lien: The Customs Broker shall have a lien, to the extent provided by law,
on any Property then in the possession of the Customs Broker, which lien shall be to the extent of
any out-of-pocket costs, fees, freight charges, storage charges, or other charges or out-of-pocket
expenses incurred or paid by the Customs Broker with respect only to that Property then in the
possession of the Customs Broker, for which the Customs Broker has not received payment, but not
for any amount owed on account of any other Property, item, or matter.



     9. Counterparts; Integration: This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This Agreement constitutes
the entire agreement between the Customs Broker and the Canadian Agent relating to the subject
matter hereof. In the event that the terms of any agreement between the Company and Customs Broker
(a) are in conflict or are inconsistent with the terms of this Agreement, the terms of this
Agreement shall govern, or (b) provide rights in favor of the Customs Broker in the Title Documents
or the Property which are greater than those provided herein, such rights shall be limited to the
extent provided for herein. This Agreement shall become effective when it shall have been executed
by the parties and when the Canadian Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other
electronic transmission shall be effective as delivery of a manually executed counterpart of this
Agreement.



     10. Governing Law: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES).



[SIGNATURE PAGE FOLLOWS]





4









 








     The parties hereto acknowledge that they have requested and are satisfied that the
foregoing, as well as all notices, actions and legal proceedings be drawn up in the English
language.



     Les parties à cette convention reconnaissent qu’elles ont exigé que ce qui précède ainsi que
tous avis, actions et procédures légales soient rédigés et exécutés en anglais et s’en déclarent
satisfaites.



     If the foregoing correctly sets forth our understanding, please indicate the Customs Broker’s
assent below, following which this letter will take effect.



	 	 	 	 	 
	 	Very truly yours,



COMPANY:



[                                        ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Agreed:



CUSTOMS BROKER:



[              
                          ]




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


CANADIAN AGENT:




BANK OF AMERICA, N.A.

(acting through its Canada branch)




	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Customs Broker Agency Agreement





 











 





Exhibit K-1




GUARANTY



     GUARANTY (this “Guaranty”), dated as of July [___], 2009, by the undersigned (each such
Person, individually, a “Guarantor” and, collectively with any other Person now or
hereafter party hereto as a Guarantor, the “Guarantors”) executed in favor of (a) Bank of
America, N.A. as administrative agent (in such capacity, the “Administrative Agent”) for
its own benefit and the benefit of the other Credit Parties (as defined in the Credit Agreement
referred to below), and (b) the other Credit Parties.



W I T N E S S E T H




     WHEREAS, reference is made to that certain Credit Agreement, dated as of July [___], 2009 (as
amended, amended and restated, modified, supplemented or restated and in effect from time to time,
the “Credit Agreement”), by and among, inter alia (i) Quiksilver Americas, Inc., as the
Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers
from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v) the
Lenders from time to time party thereto (individually, a “Lender” and, collectively, the
“Lenders”), (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing
Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as
Co-Collateral Agent and (viii) Bank of America, N.A. (acting through its Canada branch), as
Canadian Agent, pursuant to which the Lenders have agreed to make Loans to the Borrowers, and the
L/C Issuer has agreed to issue Letters of Credit for the account of the Borrowers, upon the terms
and subject to the conditions specified in the Credit Agreement. Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms in the Credit Agreement.



     WHEREAS, the Lenders have agreed to make Loans to the Borrowers, and the L/C Issuer has agreed
to issue Letters of Credit for the account of the Borrowers, pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreement.



     WHEREAS, each Guarantor acknowledges that it is an integral part of a consolidated enterprise
and that it will receive direct and indirect benefits from the availability of the credit facility
provided for in the Credit Agreement, from the making of the Loans by the Lenders, and the issuance
of the Letters of Credit by the L/C Issuer.



     WHEREAS, the obligations of the Lenders to make Loans and of the L/C Issuer to issue Letters
of Credit are each conditioned upon, among other things, the execution and delivery by the
Guarantors of a guaranty in the form hereof. As consideration therefor, and in order to induce the
Lenders to make Loans and the L/C Issuer to issue Letters of Credit, the Guarantors are willing to
execute this Guaranty.



     Accordingly, the parties hereto agree as follows:



     1. Guaranty. Each Guarantor irrevocably and unconditionally guaranties, jointly with
the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and
punctual payment when due (whether at the stated maturity, by required prepayment, by



1









 




acceleration or otherwise) and performance by each of the Borrowers of all Obligations
(collectively, the “Guaranteed Obligations”), including all such Guaranteed Obligations
which shall become due but for the operation of the Bankruptcy Code. Each Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon this Guaranty notwithstanding any
extension or renewal of any Guaranteed Obligation.




     2. Guaranteed Obligations Not Affected. To the fullest extent permitted by applicable
Law, each Guarantor waives presentment to, demand of payment from, and protest to, any Loan Party
of any of the Guaranteed Obligations, and also waives notice of acceptance of this Guaranty, notice
of protest for nonpayment and all other notices of any kind. To the fullest extent permitted by
applicable Law, the obligations of each Guarantor hereunder shall not be affected by (a) the
failure of the Administrative Agent or any other Credit Party to assert any claim or demand or to
enforce or exercise any right or remedy against any Loan Party under the provisions of the Credit
Agreement, any other Loan Document or otherwise or against any other party with respect to any of
the Guaranteed Obligations, (b) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Guaranty, the Credit Agreement, any other Loan
Document or any other agreement, with respect to any Loan Party or with respect to the Guaranteed
Obligations (except as expressly set forth in such recission, waiver, amendment, modification or
release), (c) the failure to perfect any security interest in, or the release of, any of the
Collateral held by or on behalf of the Administrative Agent or any other Credit Party, or (d) the
lack of legal existence of any Loan Party or legal obligation to discharge any of the Guaranteed
Obligations by any Loan Party for any reason whatsoever, including, without limitation, in any
insolvency, bankruptcy or reorganization of any Loan Party.



     3. Security. Each of the Guarantors hereby acknowledges and agrees that the
Administrative Agent, on behalf of itself and the other Credit Parties, may (a) take and hold
security in the manner set forth in the Loan Documents for the payment of this Guaranty and the
Guaranteed Obligations and exchange, enforce, waive and release any such security, (b) apply such
security and direct the order or manner of sale thereof as provided in the Credit Agreement, and
(c) release or substitute any one or more endorsees, Borrowers, other Loan Parties or other
obligors, in each case without affecting or impairing in any way the liability of any Guarantor
hereunder.



     4. Guaranty of Payment. Each of the Guarantors further agrees that this Guaranty
constitutes a guaranty of payment and performance when due of all Guaranteed Obligations and not of
collection and, to the fullest extent permitted by applicable Law, waives any right to require that
any resort be had by the Administrative Agent or any other Credit Party to any of the Collateral or
other security held for payment of the Guaranteed Obligations or to any balance of any deposit
account or credit on the books of the Administrative Agent or any other Credit Party in favor of
any Loan Party or any other Person or to any other guarantor of all or part of the Guaranteed
Obligations. Any payment required to be made by any Guarantor hereunder may be required by the
Administrative Agent or any other Credit Party on any number of occasions and shall be payable to
the Administrative Agent, for its own benefit and the benefit of the other Credit Parties, in the
manner provided in the Credit Agreement.



2









 





     5. No Discharge or Diminishment of Guaranty. The obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason (other than, following the termination of the Aggregate Total Commitments, the indefeasible
payment in full in cash of the Guaranteed Obligations or as otherwise provided in Section
10 of this Guaranty), including any claim of waiver, release, surrender, alteration or
compromise of any of the Guaranteed Obligations, and shall not be subject to any defense or
set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality
or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of
the foregoing, the Guaranteed Obligations of each Guarantor hereunder shall not be discharged or
impaired or otherwise affected by the failure of the Administrative Agent or any other Credit Party
to assert any claim or demand or to enforce any remedy under this Guaranty, the Credit Agreement,
any other Loan Document or any other agreement, by any waiver or modification of any provision of
any thereof (except as expressly set forth in any such waiver or modification), by any default,
failure or delay, willful or otherwise, in the performance of any of the Guaranteed Obligations, or
by any other act or omission that may or might in any manner or to any extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of any Guarantor as a matter of law or
equity (other than, following the termination of the Aggregate Total Commitments, the indefeasible
payment in full in cash of the Guaranteed Obligations or as otherwise provided in Section
10 of this Guaranty).



     6. Defenses of Loan Parties Waived. To the fullest extent permitted by applicable
Law, each of the Guarantors waives any defense based on or arising out of any defense of any other
Loan Party or the unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of any other Loan Party, other than,
following the termination of the Aggregate Total Commitments, the indefeasible payment in full in
cash of the Guaranteed Obligations. Each Guarantor hereby acknowledges that the Administrative
Agent and the other Credit Parties may, at their election in accordance with the provisions of the
Loan Documents, foreclose on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or
adjust any part of the Guaranteed Obligations, make any other accommodation with any other Loan
Party, or exercise any other right or remedy available to them against any other Loan Party,
without affecting or impairing in any way the liability of each such Guarantor hereunder except to
the extent that, following the termination of the Aggregate Total Commitments, the Guaranteed
Obligations have been indefeasibly paid in full in cash. Pursuant to, and to the extent permitted
by, applicable Law, each of the Guarantors waives any defense arising out of any such election and
waives any benefit of and right to participate in any such foreclosure action, even though such
election operates, pursuant to applicable Law, to impair or to extinguish any right of
reimbursement, indemnity, contribution or subrogation or other right or remedy of such Guarantor
against any Loan Party, as the case may be, or any security. Each Guarantor agrees that it shall
not assert any claim in competition with the Administrative Agent or any other Credit Party in
respect of any payment made hereunder in connection with any proceedings under any Debtor Relief
Laws.



3









 





     7. Limitation on Guaranty of Guaranteed Obligations. In any action or proceeding with
respect to any Guarantor involving any state corporate law, the Bankruptcy Code of the United
States or any other Debtor Relief Law, if the obligations of such Guarantor under Section 1
hereof would otherwise be held or determined to be void, invalid or unenforceable, or subordinated
to the claims of any other creditors, on account of the amount of its liability under said
Section 1, then, notwithstanding any other provision hereof to the contrary, the amount of
such liability shall, without any further action by such Guarantor, any Credit Party, the
Administrative Agent or any other Person, be automatically limited and reduced to the highest
amount which is valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.



     8. Subordination. Upon payment by any Guarantor of any Guaranteed Obligations, all
rights of such Guarantor against any other Loan Party arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all
the Guaranteed Obligations and the termination of the Aggregate Total Commitments. In addition,
any indebtedness of any Loan Party now or hereafter held by any Guarantor is hereby subordinated in
right of payment to the prior indefeasible payment in full in cash of all of the Guaranteed
Obligations. Notwithstanding the foregoing, prior to the occurrence of an Event of Default, any
Loan Party may make payments to any Guarantor on account of any such indebtedness. After the
occurrence and during the continuance of an Event of Default, no Guarantor will demand, sue for, or
otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any
Guarantor on account of (a) such subrogation, contribution, reimbursement, indemnity or similar
right or (b) any such indebtedness of any Loan Party, such amount shall be held in trust for the
benefit of the Credit Parties and shall forthwith be paid to the Administrative Agent to be
credited against the payment of the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement. Subject to the foregoing, to the extent that
any Guarantor shall, repay any of the Guaranteed Obligations constituting Loans made to another
Loan Party under the Credit Agreement or other Guaranteed Obligations incurred directly and
primarily by any other Loan Party (an “Accommodation Payment”), then the Guarantor making
such Accommodation Payment shall be entitled to contribution and indemnification from, and be
reimbursed by, each of the other Domestic Loan Parties in an amount, for each of such other
Domestic Loan Parties, equal to a fraction of such Accommodation Payment, the numerator of which
fraction is such other Domestic Loan Party’s Allocable Amount and the denominator of which is the
sum of the Allocable Amounts of all of the Domestic Loan Parties. As of any date of determination,
the “Allocable Amount” of any Guarantor and each other Domestic Loan Party shall be equal
to the maximum amount of liability for Accommodation Payments which could be asserted against such
Guarantor or Domestic Loan Party hereunder without (a) rendering such Person “insolvent” within the
meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer
Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b)
leaving such Person with unreasonably small capital or assets, within the meaning of Section 548 of
the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Person
unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code
or Section 4 of the UFTA, or Section 5 of the UFCA.



4









 





     9. Information. Each of the Guarantors assumes all responsibility for being and
keeping itself informed of each Loan Party’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Administrative Agent or the other Credit Parties will have any duty to advise any of
the Guarantors of information known to it or any of them regarding such circumstances or risks.



     10. Termination; Release.




     (a) This Guaranty (a) shall terminate when (i) the Aggregate Total Commitments have
expired or been terminated, (ii) all of the Guaranteed Obligations (other than contingent
indemnification obligations for which claims have not yet been asserted) have been paid in
full in cash or otherwise satisfied, (iii) all L/C Obligations have been reduced to zero (or
fully Cash Collateralized), and (iv) the L/C Issuer has no further obligation to issue
Letters of Credit under the Credit Agreement, and (b) shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any
Guaranteed Obligation is rescinded or must otherwise be restored by any Credit Party or any
Guarantor upon the bankruptcy or reorganization of any Loan Party or otherwise.




     (b) A Guarantor shall automatically be released from its obligations hereunder upon the
consummation of any transaction permitted by the Credit Agreement as a result of which such
Guarantor ceases to be a Subsidiary; provided that each Credit Party that is required to
consent to such transaction (if any) pursuant to the Credit Agreement has consented to such
transaction. The Administrative Agent will, at such Guarantor’s expense, execute and
deliver to such Guarantor such documents as such Guarantor may reasonably request to release
such Guarantor from its obligations under this Guaranty and each other applicable Loan
Documents, in each case in accordance with the terms of the Loan Documents and Section 9.10
of the Credit Agreement.



     11. Binding Effect; Several Agreement; Assignments. This Guaranty, and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in this Guaranty,
shall be binding upon each of the Guarantors and their respective successors and assigns, and shall
inure to the benefit of the Administrative Agent and the other Credit Parties, and their respective
successors and permitted assigns, except that no Guarantor shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein (and any such attempted
assignment or transfer shall be void), except as expressly permitted by this Guaranty or the Credit
Agreement. This Guaranty shall be construed as a separate agreement with respect to each Guarantor
and may be amended, modified, supplemented, waived or released with respect to any Guarantor
without the approval of any other Guarantor and without affecting the obligations of any other
Guarantor hereunder.



     12. Waivers; Amendment.




     (a) The rights, remedies, powers, privileges, and discretions of the Administrative
Agent hereunder and under applicable Law (herein, the “Administrative



5









 






Agent’s Rights and Remedies”) shall be cumulative and not exclusive of any
rights or remedies which they would otherwise have. No delay or omission by the
Administrative Agent in exercising or enforcing any of the Administrative Agent’s Rights and
Remedies shall operate as, or constitute, a waiver thereof. No waiver by the Administrative
Agent of any Event of Default or of any default under any other agreement shall operate as a
waiver of any other default hereunder or under any other agreement (except as expressly set
forth in such waiver). No single or partial exercise of any of the Administrative Agent’s
Rights or Remedies, and no express or implied agreement or transaction of whatever nature
entered into between the Administrative Agent and any Person, at any time, shall preclude
the other or further exercise of the Administrative Agent’s Rights and Remedies. No waiver
by the Administrative Agent of any of the Administrative Agent’s Rights and Remedies on any
one occasion shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a
continuing waiver. The Administrative Agent’s Rights and Remedies may be exercised at such
time or times and in such order of preference as the Administrative Agent may determine. The
Administrative Agent’s Rights and Remedies may be exercised without resort or regard to any
other source of satisfaction of the Guaranteed Obligations. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor or any other Guarantor to any other or
further notice or demand in the same, similar or other circumstances.




     (b) Neither this Guaranty nor any provision hereof may be waived, amended or modified
except pursuant to a written agreement entered into in accordance with Section 10.01 of the
Credit Agreement, and, if given, such waiver, amendment or modification shall be effective
only in the specific instance and for the purpose for which given.



     13. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.



     14. Notices. All communications and notices hereunder shall (except as otherwise
expressly permitted herein) be in writing and given as provided in Section 10.02 of the Credit
Agreement, provided that communications and notices to the Guarantors may be
delivered to the Lead Borrower on behalf of each of the Guarantors.



     15. Survival of Agreement; Severability.




     (a) All covenants, agreements, indemnities, representations and warranties made by the
Guarantors herein and in the certificates or other instruments delivered in connection with
or pursuant to this Guaranty, the Credit Agreement or any other Loan Document (i) shall be
considered to have been relied upon by the Administrative Agent and the other Credit
Parties, (ii) shall survive the execution and delivery of this Guaranty, the Credit
Agreement and the other Loan Documents and the making of any Loans by the Lenders and the
issuance of any Letters of Credit by the L/C Issuer, regardless of any investigation made by
the Administrative Agent or any other Credit Party or on their behalf and notwithstanding
that the Administrative Agent or other Credit Party may have had notice or knowledge of any
Default or Event of Default or incorrect representation or warranty at the time any credit
is extended, (iii) shall continue in full force and effect



6









 






until such time as this Guaranty has been terminated or, with respect to any Guarantor
that has been released from its obligations hereunder in accordance with the terms of this
Guaranty and the Credit Agreement, such time as such Guarantor has been so released, in each
case in accordance with Section 10 hereof, and (iv) shall be reinstated to the
extent required by Section 10 hereof. The provisions of Section 10 hereof
shall survive and remain in full force and effect regardless of the repayment of the
Guaranteed Obligations, the expiration or termination of the Letters of Credit and the
Aggregate Total Commitments or the termination of this Guaranty or any provision hereof.




     (b) Any provision of this Guaranty held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.



     16. Counterparts. This Guaranty may be executed in counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute a single contract.
Delivery of an executed counterpart of a signature page to this Guaranty by facsimile or other
electronic transmission shall be as effective as delivery of a manually executed counterpart of
this Guaranty.



     17. Rules of Interpretation. The rules of interpretation specified in Sections 1.02
through 1.07 of the Credit Agreement shall be applicable to this Guaranty.



     18. Jurisdiction; Waiver of Venue; Consent to Service of Process.




     (a) EACH OF THE GUARANTORS AND EACH CREDIT PARTY, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
GUARANTORS AND EACH CREDIT PARTY, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN SUCH FEDERAL COURT. EACH OF THE GUARANTORS AND EACH CREDIT PARTY, BY ITS ACCEPTANCE
HEREOF, AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT ANY CREDIT



7









 






PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




     (b) EACH OF THE GUARANTORS AND EACH CREDIT PARTY, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (A) OF THIS SECTION 18. EACH OF THE GUARANTORS AND EACH CREDIT PARTY, BY
ITS ACCEPTANCE HEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT.




     (c) EACH OF THE GUARANTORS AND EACH CREDIT PARTY, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.
NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY GUARANTOR OR ANY CREDIT PARTY TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.




     (d) EACH OF THE GUARANTORS AGREES THAT IT WILL BRING ANY ACTION ASSERTING ANY CLAIM OR
COUNTERCLAIM AGAINST ANY CREDIT PARTY ARISING UNDER OR IN CONNECTION WITH THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT SOLELY IN A COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS WITH RESPECT TO ANY SUCH ACTION; PROVIDED HOWEVER, THAT, IN THE
EVENT THAT ANY CREDIT PARTY BRINGS AN ACTION ASSERTING A CLAIM AGAINST ANY GUARANTOR ARISING
UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN A COURT OF COMPETENT
JURISDICTION OTHER THAN ONE OF THOSE REFERENCED HEREIN, SUCH GUARANTOR SHALL BE ENTITLED TO
ASSERT ANY COMPULSORY COUNTERCLAIM RELATED THERETO IN THE SAME COURT.



     19. Waiver of Jury Trial. EACH OF THE GUARANTORS AND EACH CREDIT PARTY, BY ITS
ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH OF THE GUARANTORS AND EACH
CREDIT PARTY, BY ITS ACCEPTANCE HEREOF, (A)



8









 




CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 19.




[SIGNATURE PAGE FOLLOWS]









9









 








     IN WITNESS WHEREOF, each of the undersigned Guarantors has duly executed this Guaranty as of
the day and year first above written.



	 	 	 	 	 
	GUARANTOR: 	QUIKSILVER, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Guaranty

















 





Exhibit K-2




GUARANTEE




	TO:  	 	BANK OF AMERICA, N.A., a national banking association organized under the federal laws of the
United States of America and carrying on business in Canada through its Canada branch, having
an office at 200 Front Street West, Suite 2700, Toronto, Ontario, M5V 3L2, as Canadian Agent
(in such capacity, the “Agent”) for its own benefit and the benefit of the other Canadian
Credit Parties (as defined in the Credit Agreement (as hereinafter defined)), in consideration
of the mutual covenants contained herein and benefits derived herefrom.
	 
	GRANTED BY:  	 	QS RETAIL CANADA CORP., a Nova Scotia unlimited company, having its principal offices
at 140-890 Harbourside Drive, North Vancouver, British Columbia, V7P 3T7, Canada.




WITNESSETH



Reference is made to that certain Credit Agreement, dated as of July 31, 2009 (as amended, amended
and restated, modified, supplemented or restated and in effect from time to time, the “Credit
Agreement”), by and among, inter alia, (i) Quiksilver Americas, Inc., as the Lead Borrower, (ii)
Quiksilver Canada Corp., as Canadian Borrower, (iii) the other Borrowers from time to time party
thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to time
party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing Line
Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as
Co-Collateral Agent and (viii) Bank of America, N.A. (acting through its Canada branch), as
Canadian Agent (capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement).



The Canadian Credit Parties have agreed to make Canadian Loans and otherwise extend credit support
to the Canadian Borrower pursuant to, and upon the terms and subject to the conditions specified
in, the Credit Agreement.



The obligations of the Canadian Lenders to make Canadian Loans and of the L/C Issuer to issue
Canadian Letters of Credit from time to time are each conditioned upon, among other things, the
execution and delivery by the undersigned of a guarantee in the form hereof.



As consideration therefor and in order to induce the Canadian Lenders to make Loans and the L/C
Issuer to issue Canadian Letters of Credit from time to time, the undersigned is willing to execute
this Guarantee and agrees as follows:





	1.	 	For valuable consideration, the undersigned hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the due and punctual payment when
due (whether at the stated maturity, by required prepayment, by acceleration or otherwise) and
performance by the Canadian Borrower of, and promises




 









 






	 	 	to pay, all Canadian Liabilities (collectively, the “Guaranteed Indebtedness”) to the Agent,
for its own benefit and the benefit of the other Canadian Credit Parties.






	2.	 	The liability of the undersigned under this Guarantee shall be unlimited. Regardless of
whether or not any proposed guarantor or any other Person has executed or shall execute this
Guarantee or is or are or shall become in any other way responsible to the Agent and/or the
other Canadian Credit Parties for the Guaranteed Indebtedness or any part thereof whether
under this Guarantee or otherwise shall cease to be so liable, this shall be a continuing
Guarantee relating to any Guaranteed Indebtedness, including that arising under successive
transactions which shall either continue the Guaranteed Indebtedness or from time to time
renew it after it has been satisfied and shall secure the ultimate repayment of all monies
owing from the Canadian Borrower to the Agent and the other Canadian Credit Parties and shall
be binding as a continuing security on the undersigned. Any payment by the undersigned shall
not reduce the maximum obligation of the undersigned hereunder.
	 
	3.	 	The obligations hereunder are independent of the obligations of the Canadian Borrower and a
separate action or actions may be brought and prosecuted against the undersigned whether
action is brought against the Canadian Borrower or whether the Canadian Borrower be joined in
any such action or actions; and the undersigned waives, to the extent permitted by applicable
Law, the benefit of any statute of limitations affecting its liability.
	 
	4.	 	The undersigned authorizes the Agent, without notice or demand and without affecting its
liability hereunder, from time to time, either before or after revocation hereof, to:






	 	(a)	 	renew, compromise, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Guaranteed Indebtedness or any part thereof,
including increase or decrease of the rate of interest thereon;
	 
	 	(b)	 	receive and hold security for the payment of this Guarantee or the Guaranteed
Indebtedness guaranteed, and exchange, enforce, waive, release, fail to perfect, sell,
or otherwise dispose of any such security;
	 
	 	(c)	 	apply such security and direct the order or manner of sale thereof in
accordance with Section 8.03 of the Credit Agreement; and
	 
	 	(d)	 	release or substitute any guarantors.






	5.	 	The undersigned waives any right to require the Agent or the other Canadian Credit Parties
to:






	 	(a)	 	proceed against the Canadian Borrower;
	 
	 	(b)	 	proceed against or exhaust any security held from the Canadian Borrower or any
other Person; or
	 
	 	(c)	 	pursue any other remedy in the Agent’s or the other Canadian Credit Parties’
power whatsoever.




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	 	 	The undersigned waives any defense arising by reason of any disability or other defense of
the Canadian Borrower, or the cessation from any cause whatsoever of the liability of the
Canadian Borrower, or any claim that the undersigned’s obligations exceed or are more
burdensome than those of the Canadian Borrower, the undersigned waives (until such time as
the Aggregate Canadian Commitments have been terminated and the Guaranteed Indebtedness has
been indefeasibly paid in full in cash) any right of subrogation, reimbursement,
indemnification, and contribution (contractual, statutory or otherwise), arising from the
existence or performance of this Guarantee and the undersigned waives any right to enforce
any remedy which the Agent and/or the other Canadian Credit Parties now have or may
hereafter have against the Canadian Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by the Agent or the other Canadian Credit
Parties. The Agent may foreclose, either by judicial foreclosure or by exercise of power of
sale, or realize any deed of trust or other security securing the Guaranteed Indebtedness,
and, even though the foreclosure or other realization may destroy or diminish the
undersigned’s rights against the Canadian Borrower or may result in security being sold at
an under value, the undersigned shall be liable to the Agent and the other Canadian Credit
Parties for any part of the Guaranteed Indebtedness remaining unpaid after the foreclosure
or other realization. The undersigned waives all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonour, and notices
of acceptance of this Guarantee and of the existence, creation, or incurring of new or
additional Guaranteed Indebtedness.






	6.	 	The undersigned acknowledges and agrees that it shall have the sole responsibility for
obtaining from the Canadian Borrower such information concerning the Canadian Borrower’s
financial conditions or business operations as the undersigned may require, and that neither
the Agent nor the other Canadian Credit Parties have any duty at any time to disclose to the
undersigned any information relating to the business operations or financial condition of the
Canadian Borrower.
	 
	7.	 	To secure all of the undersigned’s obligations hereunder, the undersigned assigns and grants
to the Agent for itself and on behalf of the other Canadian Credit Parties a security interest
in all now owned or hereafter acquired moneys, securities and other property of the
undersigned (other than Excluded Assets (as defined in the Security Agreement made by the
undersigned in favour of the Agent)), and all deposit accounts of the undersigned maintained
with the Agent and the other Canadian Credit Parties (or otherwise), and all proceeds thereof.
Upon default or breach of any of the undersigned’s obligations to the Agent and the other
Canadian Credit Parties, the Agent may apply any monies in any deposit account to reduce the
Guaranteed Indebtedness, and may realize upon any collateral as provided by law and in any
security agreements between the Agent and/or the other Canadian Credit Parties and the
undersigned.
	 
	8.	 	Any obligations of the Canadian Borrower to the undersigned, now or hereafter existing,
including but not limited to any obligations to the undersigned as subrogee of the Agent or
the other Canadian Credit Parties or resulting from the undersigned’s performance under this
Guarantee, are hereby assigned to the Agent and postponed and subordinated to the Guaranteed
Indebtedness. Subject to the Credit Agreement and unless otherwise provided therein, any such
obligations of the Canadian Borrower to the undersigned




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	 	 	received by the undersigned after the occurrence of an Event of Default that is continuing
shall be received in trust for the Agent and the other Canadian Credit Parties and the
proceeds thereof shall forthwith be paid over to the Agent on account of the Guaranteed
Indebtedness of the Canadian Borrower to the Agent and the other Canadian Credit Parties,
but without reducing or affecting in any manner the liability of the undersigned under the
provisions of this Guarantee. This assignment and postponement is independent of and
severable from this Guarantee and shall remain in full force and effect whether or not the
undersigned is liable for any amount under this Guarantee.






	9.	 	Where the Canadian Borrower becomes bankrupt or makes an assignment for the benefit of
creditors or if any circumstances arise necessitating the Agent and/or the other Canadian
Credit Parties to file a claim against the Canadian Borrower and/or to value its securities,
the Agent shall be entitled to place such valuation on its securities as the Agent may in its
absolute discretion see fit and the filing of such claim and the valuing of securities shall
not in any way prejudice or restrict the claim of the Agent and the other Canadian Credit
Parties against the undersigned and in no way discharges the undersigned from its liability
hereunder to the Agent and the other Canadian Credit Parties, either in whole or in part and
until all Guaranteed Indebtedness of the Canadian Borrower to the Agent and the other Canadian
Credit Parties has been fully paid, the Agent shall have the right to include in its claim the
amount of all sums paid by the undersigned to the Agent under this Guarantee and to prove and
rank for and receive dividends in respect of such claim, any and all rights to prove and rank
for such sums paid for by the undersigned and receive the full amount of all dividends in
respect thereto are hereby assigned and transferred to the Agent by the undersigned.
	 
	10.	 	Any account settled or stated by or between the Agent and/or the other Canadian Credit
Parties and the Canadian Borrower, or, if any such account has not been so settled or stated
immediately before demand for payment under this Guarantee, any account stated by the Agent,
shall be accepted by the undersigned as conclusive evidence (absent manifest error) of the
amount which at the date of the account so settled or stated is due by the Canadian Borrower
to the Agent or remains unpaid by the Canadian Borrower to the Agent and/or the other Canadian
Credit Parties.
	 
	11.	 	The undersigned shall make payment to the Agent of the amount of its liability to the Agent
forthwith after demand therefor is made, in accordance with Section 10.02 of the Credit
Agreement, in writing at its address or telecopier number last known to the Agent. All
payments hereunder shall be made to the Agent pursuant to the terms of the Credit Agreement.
	 
	12.	 	Any and all payments by the undersigned to the Agent and/or the other Canadian Credit Parties
under this Guarantee or the Credit Agreement shall be made free and clear of, and without
deduction or withholding for any Indemnified Taxes unless the undersigned is required to
withhold or deduct taxes in which case paragraph 13 shall apply.
	 
	13. 	 	 






	 	(a)	 	Any and all payments by or on account of any obligation of the undersigned
under this Guarantee shall be made free and clear of and without deduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if the




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	 	 	 	undersigned shall be required by applicable Law to deduct or withhold, or the Agent
or any other Canadian Credit Party shall be required to remit, any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall
be increased as necessary so that after making all required deductions, withholdings
or remittances (including deductions, withholdings or remittances applicable to
additional sums payable under this paragraph 13), the applicable Canadian Credit
Party receives an amount equal to the sum it would have received had no such
deductions, withholdings or remittances been made, (ii) the undersigned shall make
such deductions or withholdings and (iii) the undersigned shall timely pay the full
amount deducted or withheld to the relevant Governmental Authority in accordance
with applicable Law.






	 	(b)	 	The undersigned shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Law.
	 
	 	(c)	 	The undersigned shall indemnify the Agent and each other Canadian Credit Party,
within ten (10) days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this paragraph 13) paid by such
Canadian Credit Party and any penalties, interest and reasonable out-of-pocket expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority and a certificate as to the amount of such payment or liability delivered to
the undersigned by the Agent or any other Canadian Credit Party (with a copy to Agent),
or by the Agent on its own behalf or on behalf of a Canadian Credit Party, shall be
conclusive absent manifest error.
	 
	 	(d)	 	As soon as practicable after any payment of Indemnified Taxes or Other Taxes by
the undersigned to a Governmental Authority, the undersigned shall deliver to the
Agent, the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Agent;






	14.	 	If any provision of this Guarantee is determined in any proceeding in a court of competent
jurisdiction to be void or to be wholly or partly unenforceable, that provision shall for the
purposes of such proceeding, be severed from this Guarantee at the Agent’s option and shall be
treated as not forming a part hereof and all the remaining provisions of this Guarantee shall
remain in full force and be unaffected thereby.
	 
	15.	 	This Guarantee shall not be subject to or affected by any promise or condition affecting or
limiting the liability of the undersigned except as expressly set forth herein and no
statement, representation, agreement or promise on the part of the Agent or any officer,
employee or agent thereof, unless contained herein, forms any part of this contract or has
induced the making thereof or shall be deemed in any way to affect the liability of the
undersigned hereunder.




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	16.	 	This Guarantee shall extend to and enure to the benefit of the Agent and the other Canadian
Credit Parties and its and their successors and assigns, and shall extend to and be binding
upon the undersigned and its successors and permitted assigns.
	 
	17.	 	It is not necessary for the Agent or the other Canadian Credit Parties to inquire into the
powers of the Canadian Borrower or the undersigned or of the officers, directors, partners, or
agents acting or purporting to act on their behalf, and any Guaranteed Indebtedness made or
created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
	 
	18.	 	The Agent may, without notice to the undersigned and without affecting the undersigned’s
obligations hereunder, assign the Guaranteed Indebtedness and this Guarantee, in whole or in
part. The undersigned agrees that the Agent and the other Canadian Credit Parties may
disclose to any assignee or purchaser, or any prospective assignee or purchaser, of all or
part of the Guaranteed Indebtedness any and all information in the Agent’s or any other
Canadian Lender’s possession concerning the undersigned, this Guarantee, and any security for
this Guarantee.
	 
	19.	 	If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to
this Guarantee, it becomes necessary to convert into a particular currency (the “Judgment
Currency”) any amount due under this Guarantee in any currency other than the Judgment
Currency (the “Currency Due”), then conversion shall be made at the rate of exchange
prevailing on the Business Day before the day on which judgment is given. For this purpose
“rate of exchange” means the rate at which the Agent is able, on the relevant date, to
purchase the Currency Due with the Judgment Currency in accordance with its normal practice.
In the event that there is a change in the rate of exchange prevailing between the Business
Day before the day on which the judgment is given and the date of receipt by the Agent of the
amount due, the Agent will, on the date of receipt by the Agent, pay such additional amounts,
if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to
ensure that the amount received by the Agent, on such date, is the amount in the Judgment
Currency which, when converted at the rate of exchange prevailing on the date of receipt by
the Agent, is the amount then due under this Guarantee in the Currency Due. If the amount of
the Currency Due which the Agent is so able to purchase is less than the amount of the
Currency Due originally due to it, the undersigned shall indemnify and save the Agent and the
other Canadian Credit Parties harmless from and against all loss or damage arising as a result
of such deficiency. This indemnity shall constitute an obligation separate and independent
from the other obligations contained in this Guarantee, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted by the Agent,
from time to time and shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum in respect of an amount due under this Guarantee or under any
judgment or order.
	 
	20.	 	If the undersigned is a partnership, this Guarantee shall extend to each Person for the time
being, and from time to time, carrying on the business now being carried on by the undersigned
notwithstanding any change or changes in the name or membership of the partnership or the
incorporation of a company for the purpose of acquiring the business of the partnership and
where the undersigned is a corporation, this Guarantee shall extend to




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	 	 	any amalgamated or new company formed to take over the business of the undersigned and any
reorganization thereof, whether the new company is the same or different in its objects,
character and constitution.
	 
	21.	 	The undersigned will pay on demand, and will indemnify and save the Agent and the Canadian
Credit Parties harmless from, any and all Credit Party Expenses incurred by or on behalf of
the Agent and the Canadian Credit Parties in connection with or relating to this Guarantee.
	 
	22.	 	All words used herein in the plural shall be deemed to have been used in the singular where
the context and construction so require.
	 
	23.	 	This Guarantee shall be governed by and construed in accordance with the laws of the Province
of Ontario and the laws of Canada applicable therein.
	 
	24.	 	The undersigned acknowledges receipt of an executed copy of this Guarantee.




The parties acknowledge that they have required that this Guarantee and all related documents be
prepared in English.



Les parties reconnaissent avoir exigé que la présente convention et tous les documents connexes
soient rédigés en anglais.




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Executed
as of this ___ day of                                         , 2009.




	 	 	 	 	 
	 	QS RETAIL CANADA CORP.

 	 
	 	Per:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	Per:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Signature Page to Canadian Guarantee