exv10w1



 






Exhibit 10.1




[Published CUSIP Number: ________________]  




CREDIT AGREEMENT




Dated as of November 18, 2005




among




MICHAELS STORES, INC.




as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




and




The Other Lenders Party Hereto




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent




BANC OF AMERICA SECURITIES LLC




and




J.P. MORGAN SECURITIES, INC.,

as Joint Lead Arrangers and Joint Book Managers




and




CITICORP USA, INC., WACHOVIA BANK, N.A., WELLS FARGO BANK, N.A., as Co-

Documentation Agents





 









 








TABLE
OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I.
	 	DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01.
	 	Defined Terms	 	 	1	 
	1.02.
	 	Other Interpretive Provisions	 	 	19	 
	1.03.
	 	Accounting Terms	 	 	20	 
	1.04.
	 	Rounding	 	 	21	 
	1.05.
	 	Times of Day	 	 	21	 
	1.06.
	 	Letter of Credit Amounts	 	 	21	 
	1.07.
	 	Exchange Rates; Currency Equivalents	 	 	21	 
	1.08.
	 	Additional Alternative Currencies	 	 	21	 
	1.09.
	 	Change of Currency	 	 	22	 
	ARTICLE II.
	 	the COMMITMENTS and Credit Extensions	 	 	22	 
	2.01.
	 	Committed Loans	 	 	22	 
	2.02.
	 	Borrowings, Conversions and Continuations of Committed Loans	 	 	23	 
	2.03.
	 	Bid Loans	 	 	24	 
	2.04.
	 	Letters of Credit	 	 	27	 
	2.05.
	 	Swing Line Loans	 	 	35	 
	2.06.
	 	Prepayments	 	 	37	 
	2.07.
	 	Termination or Reduction of Commitments	 	 	38	 
	2.08.
	 	Repayment of Loans	 	 	39	 
	2.09.
	 	Interest	 	 	39	 
	2.10.
	 	Fees	 	 	39	 
	2.11.
	 	Computation of Interest and Fees	 	 	40	 
	2.12.
	 	Evidence of Debt	 	 	40	 
	2.13.
	 	Payments Generally; Administrative
Agent’s Clawback	 	 	41	 
	2.14.
	 	Sharing of Payments by Lenders	 	 	42	 
	2.15.
	 	Increase in Commitments	 	 	43	 
	2.16.
	 	Guaranties	 	 	44	 
	ARTICLE III.
	 	TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	44	 
	3.01.
	 	Taxes	 	 	44	 
	3.02.
	 	Illegality	 	 	47	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	3.03.
	 	Inability to Determine Rates	 	 	47	 
	3.04.
	 	Increased Costs; Reserves of Eurocurrency Loans	 	 	47	 
	3.05.
	 	Compensation for Losses	 	 	49	 
	3.06.
	 	Mitigation Obligations; Replacement of Lenders	 	 	50	 
	3.07.
	 	Requests for Compensation	 	 	51	 
	3.08.
	 	Survival	 	 	51	 
	ARTICLE IV.
	 	CONDITIONS PRECEDENT TO Credit Extensions	 	 	51	 
	4.01.
	 	Conditions of Initial Credit Extension	 	 	51	 
	4.02.
	 	Conditions to all Credit Extensions	 	 	52	 
	ARTICLE V.
	 	REPRESENTATIONS AND WARRANTIES	 	 	53	 
	5.01.
	 	Existence, Qualification and Power	 	 	53	 
	5.02.
	 	Authorization; No Contravention	 	 	53	 
	5.03.
	 	Governmental Authorization; Other Consents	 	 	53	 
	5.04.
	 	Binding Effect	 	 	53	 
	5.05.
	 	Financial Statements	 	 	53	 
	5.06.
	 	Litigation	 	 	54	 
	5.07.
	 	No Default	 	 	54	 
	5.08.
	 	Ownership of Property; Liens	 	 	54	 
	5.09.
	 	Environmental Compliance	 	 	54	 
	5.10.
	 	Intentionally Omitted	 	 	54	 
	5.11.
	 	Taxes	 	 	55	 
	5.12.
	 	ERISA Compliance	 	 	55	 
	5.13.
	 	Subsidiaries; Guarantors	 	 	55	 
	5.14.
	 	Margin Regulations; Investment Company Act; Public Utility
Holding Company Act	 	 	55	 
	5.15.
	 	Disclosure	 	 	56	 
	5.16.
	 	Compliance with Laws	 	 	56	 
	5.17.
	 	Intellectual Property; Licenses, Etc	 	 	56	 
	5.18.
	 	Fiscal Year	 	 	56	 
	5.19.
	 	Obligor Group Requirement	 	 	56	 






ii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE VI.
	 	AFFIRMATIVE COVENANTS	 	 	57	 
	6.01.
	 	Financial Statements	 	 	57	 
	6.02.
	 	Certificates; Other Information	 	 	57	 
	6.03.
	 	Notices	 	 	58	 
	6.04.
	 	Payment of Obligations	 	 	59	 
	6.05.
	 	Preservation of Existence, Etc.	 	 	59	 
	6.06.
	 	Maintenance of Properties	 	 	59	 
	6.07.
	 	Maintenance of Insurance	 	 	60	 
	6.08.
	 	Compliance with Laws	 	 	60	 
	6.09.
	 	Books and Records	 	 	60	 
	6.10.
	 	Inspection Rights	 	 	60	 
	6.11.
	 	Use of Proceeds	 	 	60	 
	6.12.
	 	Additional Guarantors	 	 	60	 
	6.13.
	 	Business Activities	 	 	61	 
	6.14.
	 	Further Assurances	 	 	61	 
	ARTICLE VII.
	 	NEGATIVE COVENANTS	 	 	61	 
	7.01.
	 	Liens	 	 	61	 
	7.02.
	 	Fundamental Changes	 	 	62	 
	7.03.
	 	Burdensome Agreements	 	 	62	 
	7.04.
	 	Use of Proceeds	 	 	63	 
	7.05.
	 	Financial Covenants	 	 	63	 
	ARTICLE VIII.
	 	EVENTS OF DEFAULT AND REMEDIES	 	 	63	 
	8.01.
	 	Events of Default	 	 	63	 
	8.02.
	 	Remedies Upon Event of Default	 	 	65	 
	8.03.
	 	Application of Funds	 	 	65	 
	ARTICLE IX.
	 	ADMINISTRATIVE AGENT	 	 	66	 
	9.01.
	 	Appointment and Authority	 	 	66	 
	9.02.
	 	Rights as a Lender	 	 	66	 
	9.03.
	 	Exculpatory Provisions	 	 	66	 
	9.04.
	 	Reliance by Administrative Agent	 	 	67	 






iii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	9.05.
	 	Delegation of Duties	 	 	67	 
	9.06.
	 	Resignation of Administrative Agent	 	 	68	 
	9.07.
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	68	 
	9.08.
	 	No Other Duties, Etc.	 	 	69	 
	9.09.
	 	Administrative Agent May File Proofs of Claim	 	 	69	 
	9.10.
	 	Guaranty Matters	 	 	69	 
	9.11.
	 	Reliance by the Borrower	 	 	69	 
	ARTICLE X.
	 	MISCELLANEOUS	 	 	70	 
	10.01.
	 	Amendments, Etc.	 	 	70	 
	10.02.
	 	Notices; Effectiveness; Electronic Communication	 	 	71	 
	10.03.
	 	No Waiver; Cumulative Remedies	 	 	73	 
	10.04.
	 	Expenses; Indemnity; Damage Waiver	 	 	73	 
	10.05.
	 	Payments Set Aside	 	 	74	 
	10.06.
	 	Successors and Assigns	 	 	75	 
	10.07.
	 	Treatment of Certain Information; Confidentiality	 	 	78	 
	10.08.
	 	Right of Setoff	 	 	78	 
	10.09.
	 	Interest Rate Limitation	 	 	79	 
	10.10.
	 	Counterparts; Integration; Effectiveness	 	 	79	 
	10.11.
	 	Survival of Representations and Warranties	 	 	79	 
	10.12.
	 	Severability	 	 	79	 
	10.13.
	 	Replacement of Lenders	 	 	79	 
	10.14.
	 	Governing Law; Jurisdiction; Etc.	 	 	80	 
	10.15.
	 	Waiver of Jury Trial	 	 	81	 
	10.16.
	 	USA PATRIOT Act Notice	 	 	81	 
	10.17.
	 	Time of the Essence	 	 	81	 
	10.18.
	 	Judgment Currency	 	 	81	 
	10.19.
	 	Collateral	 	 	82	 
	10.20.
	 	Entire Agreement	 	 	82	 






iv









 






SCHEDULES



1.01  Mandatory Cost Formulae

2.01  Commitments and Applicable Percentages

5.13  Subsidiaries; Guarantors

5.17  Intellectual Property Matters

10.02  Administrative Agent’s Office; Certain Addresses for Notices

10.06  Processing and Recordation Fees



EXHIBITS



               Form of


A            Committed Loan Notice

B-1         Bid Request

B-2         Competitive Bid

C            Swing Line Loan Notice

D            Note

E            Compliance Certificate

F            Assignment and Assumption

G            Guaranty




 









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of November 18, 2005 among
MICHAELS STORES, INC., a Delaware corporation (the “Borrower”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



     The Borrower has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so 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:



     “Absolute Rate” means a fixed rate of interest expressed in multiples of
1/100th of one basis point.



     “Absolute Rate Loan” means a Bid Loan that bears interest at a rate determined with
reference to an Absolute Rate.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
for the Lenders under any of the Loan Documents, or any successor administrative agent appointed
pursuant to Article IX.



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



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent duly completed copies of which have been delivered to the
Administrative Agent (and thereafter delivered by the Administrative Agent to the Borrower).



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



     “Aggregate Commitments” means the Commitments of all the Lenders. As of the date
hereof, the Aggregate Commitment is $300,000,000.



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



     “Alternative Currency” means each of Euro, Sterling, Yen and the Canadian Dollar and
each other currency (other than Dollars) that is approved in accordance with Section 1.08.



 









 





     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the
Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the
Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such
Alternative Currency with Dollars.



     “Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $25,000,000. The Alternative Currency Sublimit is part of, and not in addition to,
the Aggregate Commitments.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. 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 or
if the Aggregate 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 the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(a):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate 
	 	 	 	 	 	 	 	 	Eurocurrency	 	 	 	 
	 	 	 	 	 	 	 	 	Rate	 	 	 	 
	 	 	 	 	 	 	 	 	Standby	 	 	 	 
	 	 	Consolidated	 	 	 	 	 	Letters of	 	Commercial Letters	 	 
	Pricing Level	 	Leverage Ratio	 	Commitment Fee	 	Credit	 	of Credit	 	Base Rate
	I

	 	32.75:1.00
	 	 	0.225	%	 	 	1.25	%	 	 	0.625	%	 	 	0	%
	II

	 	<2.75:1.00 and
32.25:1.00
	 	 	0.175	%	 	 	1.00	%	 	 	0.50	%	 	 	0	%
	III

	 	<2.25:1.00 and
31.75:1.00
	 	 	0.125	%	 	 	0.75	%	 	 	0.375	%	 	 	0	%
	IV

	 	<1.75:1.00 and
31.25:1.00
	 	 	0.11	%	 	 	0.625	%	 	 	0.3125	%	 	 	0	%
	V

	 	<1.25:1.00
	 	 	0.10	%	 	 	0.50	%	 	 	0.25	%	 	 	0	%






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level I shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered. The Applicable Rate in effect from the
Closing Date through the first Business Day immediately following the date the Compliance
Certificate is delivered for the fiscal quarter ended January 28, 2006 shall be determined based
upon Pricing Level III.



     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative



2









 




Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be
necessary for timely settlement on
the relevant date in accordance with normal banking procedures in the place of payment.




     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another.



     “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 F or any other form reasonably accepted by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease 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, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended January 29, 2005 and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “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 Commitments
pursuant to Section 2.07, 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.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime 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.



     “Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base
Rate Loans shall be denominated in Dollars.



     “Bid Borrowing” means a borrowing consisting of simultaneous Bid Loans of the same
Type from each of the Lenders whose offer to make one or more Bid Loans as part of such borrowing
has been accepted under the auction bidding procedures described in Section 2.03.



     “Bid Loan” has the meaning specified in Section 2.03(a). Bid Loans may only be
denominated in Dollars.



     “Bid Loan Lender” means, in respect of any Bid Loan, the Lender making such Bid Loan
to the Borrower.



3









 





     “Bid Loan Sublimit” means an amount equal to $50,000,000. The Bid Loan Sublimit is
part of, and not in addition to, the Aggregate Commitments.



     “Bid Request” means a written request for one or more Bid Loans substantially in the
form of Exhibit B-1 or any other form reasonably accepted by the Administrative Agent.



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



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



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



     “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 of
Texas or the state where the Administrative Agent’s Office with respect to Obligations denominated
in Dollars is located as set forth on Schedule 10.02 and:



     (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect
of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to
this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings
in deposits in Dollars are conducted by and between banks in the London interbank eurodollar
market;



     (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Committed Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of
any such Eurocurrency Rate Committed Loan, or any other dealings in Euro to be carried out pursuant
to this Agreement in respect of any such Eurocurrency Rate Committed Loan, means a TARGET Day;



     (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Committed Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings in
deposits in the relevant currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and



     (d) if such day relates to any fundings, disbursements, settlements and payments in a currency
other than Dollars or Euro in respect of a Eurocurrency Rate Committed Loan denominated in a
currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or
Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate
Committed Loan (other than any interest rate settings), means any such day on which banks are open
for foreign exchange business in the principal financial center of the country of such currency.



     “Canadian Dollars” means dollars in lawful currency of Canada.



     “Capitalized Leases” means, with respect to any Person, leases under which such
Person is the lessee or obligor, the obligations under which are required to be capitalized on the
balance sheet of the lessee or obligor in accordance with GAAP.



     “Cash Collateralize” has the meaning specified in Section 2.04(g).



     “Change in Law” means the occurrence, after the date of this Agreement (or, if later,
the date on which the applicable Lender affected by any of the following became a Lender
hereunder), of any of the



4









 




following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.




     “Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the SEC thereunder), other than (i) an employee benefit or stock
ownership plan of the Borrower and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of such plan and (ii) any Permitted Holder, of Equity Interests
representing more than 35% of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of the Borrower or (b) the occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be increased from time to time pursuant to Section 2.15
or otherwise adjusted from time to time in accordance with this Agreement.



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



     “Committed Loan” has the meaning specified in Section 2.01.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Committed
Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A or any other form reasonably accepted by the Administrative Agent.



     “Competitive Bid” means a written offer by a Lender to make one or more Bid Loans,
substantially in the form of Exhibit B-2, duly completed and signed by a Lender.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
E or any other form reasonably accepted by the Administrative Agent.



     “Consolidated EBITDAR” means, with respect to the Borrower and its Subsidiaries on a
consolidated basis for any period, (a) Consolidated Net Income, but before payment or provision for
(i) any income taxes for such period, (ii) Consolidated Total Interest Expense for such period,
(iii) depreciation for such period, (iv) amortization for such period, and (v) all other noncash
charges (excluding charges that result in an accrual or a reserve for cash charges in the future)
for such period plus (b) Consolidated Rental Expense for such period, all determined in
accordance with GAAP.



5









 





     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDAR for the period of the four prior fiscal quarters ending on such
date to (b) (i) Consolidated Total Interest Expense for such period plus (ii) Consolidated
Rental Expense for such period; provided that if, on or prior to the applicable date of
determination an acquisition or disposition permitted hereunder outside the ordinary course of
business has occurred that has the effect of increasing or decreasing the Consolidated Fixed Charge
Coverage Ratio, then the Consolidated Fixed Charge Coverage Ratio shall be calculated on a pro
forma basis following any such acquisition or disposition as though such acquisition or disposition
occurred at the beginning of the four fiscal quarter period most recently ended.



     “Consolidated Funded Indebtedness” means, at any time of determination, the sum of (i)
the amount of the Loans outstanding (after giving account to any amounts requested and without
duplication of amounts on account of conversions of Loans from one Type to another Type and
continuations of any Type of Loans as such); plus (ii) the outstanding amount of any other
Indebtedness for borrowed money, in respect of Capitalized Leases of the Borrower and its
Subsidiaries or which is otherwise subject to the payment of interest.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
(i) Consolidated Funded Indebtedness as of such date plus (ii) Consolidated Rental Expense
for the four prior fiscal quarters ending on such date multiplied by 6 to (b) Consolidated EBITDAR
for the four prior fiscal quarters ending on such date ; provided that if, on or prior to
the applicable date of determination an acquisition or disposition permitted hereunder outside the
ordinary course of business has occurred that has the effect of increasing or decreasing the
Consolidated Leverage Ratio, then the Consolidated Leverage Ratio shall be calculated on a pro
forma basis following any such acquisition or disposition as though such acquisition or disposition
occurred at the beginning of the four fiscal quarter period most recently ended.



     “Consolidated Net Income” means, with respect to the Borrower and its Subsidiaries on
a consolidated basis for any period, the consolidated earnings (or loss) from operations of the
Borrower and its Subsidiaries for such period, after eliminating therefrom all extraordinary
nonrecurring items of income (including gains on the sale of assets and earnings from the sale of
discontinued business lines), and after all expenses and other proper charges, all determined in
accordance with GAAP.



     “Consolidated Rental Expense” means, for any period, all fixed minimum rental expense
of the Borrower and its Subsidiaries during such period, determined on a consolidated basis in
accordance with GAAP, incurred under any rental agreements or leases of real or personal property,
including space leases and ground leases, other than obligations in respect of any Capitalized
Leases of the Borrower and its Subsidiaries.



     “Consolidated Tangible Net Worth” means the excess of Consolidated Total Assets over
Consolidated Total Liabilities, and less the sum of:



     (a) the total book value of all assets of the Borrower and its Subsidiaries properly
classified as intangible assets under GAAP, including such items as goodwill, the purchase price of
acquired assets in excess of the fair market value thereof, trademarks, trade names, service marks,
brand names, copyrights, patents and licenses, and rights with respect to the foregoing;
plus



     (b) all amounts representing any write-up in the book value of any assets of the Borrower or
its Subsidiaries resulting from a revaluation thereof subsequent to the date of the Audited
Financial Statements; plus



6









 





     (c) to the extent otherwise includable in the computation of Consolidated Tangible Net Worth,
any subscriptions receivable.



     “Consolidated Total Assets” means all assets of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.



     “Consolidated Total Interest Expense” means, for any period, the aggregate amount of
interest required to be paid or accrued by the Borrower and its Subsidiaries during such period on
all Indebtedness of the Borrower and its Subsidiaries outstanding during all or any part of such
period, whether such interest was or is required to be reflected as an item of expense or
capitalized (excluding capitalized interest relating to construction projects determined in
accordance with GAAP), including payments consisting of interest in respect of any Capitalized
Lease of the Borrower or any of its Subsidiaries, and including commitment fees, agency fees and
facility fees, all exclusive of investment income.



     “Consolidated Total Liabilities” means all liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or 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.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
applicable liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, fraudulent conveyance, reorganization, or
similar debtor relief Laws of the United States 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, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate and any Mandatory Cost)
otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of
Credit Fees, a rate equal to the Applicable Rate plus 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 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 or become the subject
of a bankruptcy or insolvency proceeding.



7









 





     “Dispose” means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction) of any property 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.



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



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the
United States, a State thereof or the District of Columbia.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and (c) 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
Borrower (each such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries; and provided further, however, that
an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another Person,
which, through its Lending Offices, is capable of lending the applicable Alternative Currency to
the Borrower without the imposition of any additional Indemnified Taxes.



     “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Environmental Laws” means any and all applicable Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to Hazardous Materials.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.



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



8









 




from such Person of such shares (or such other interests), and all of the other ownership or
profit interests in such Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests
are outstanding on any date of determination.




     “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 the Borrower 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 the Borrower 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) the incurrence by the Borrower or any ERISA Affiliate of any liability with respect
to the complete or partial withdrawal by the Borrower 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 Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.



     “Euro,”
“EUR” and “€” mean the lawful currency of the Participating
Member States introduced in accordance with the EMU Legislation.



     “Eurocurrency Bid Margin” means the margin above or below the Eurocurrency Rate to be
added to or subtracted from the Eurocurrency Rate, which margin shall be expressed in multiples of
1/100th of one basis point.



     “Eurocurrency Margin Bid Loan” means a Bid Loan that bears interest at a rate based
upon the Eurocurrency Rate.



     “Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency 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 10:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for deposits in the
relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason, then the
“Eurocurrency Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the
first day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Loan being made, continued or converted by the Administrative Agent and with a term equivalent
to such Interest Period would be offered by the Administrative Agent’s London Branch (or other
branch or Affiliate of the Administrative Agent) to major banks in the London or other offshore
interbank market for such currency at their request at approximately 10:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.



9









 





     “Eurocurrency Rate Committed Loan” means a Committed Loan that bears interest at a
rate based on the Eurocurrency Rate. Eurocurrency Rate Committed Loans may be denominated in
Dollars or in an Alternative Currency. All Committed Loans denominated in an Alternative Currency
must be Eurocurrency Rate Loans.



     “Eurocurrency Rate Loan” means a Eurocurrency Rate Committed Loan or a Eurocurrency
Margin Bid Loan.



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



     “Excluded Taxes” means, with respect to the Administrative 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 the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it, by any Governmental Authority, (b) any branch
profits taxes imposed by any Governmental Authority and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 10.13), any
withholding tax that is imposed on amounts payable to such Foreign Lender that is in effect at the
time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign 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 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 Borrower with respect to such withholding tax pursuant to
Section 3.01(a).



     “Existing Credit Agreement” means that certain Revolving Credit Agreement, as amended,
dated as of May 1, 2001 among the Borrower, Bank of America, N.A. (as successor by merger to Fleet
National Bank), as agent, and a syndicate of lenders.



     “Existing Letters of Credit” means the letters of credit issued prior to the Closing
Date for the account of the Borrower or a Subsidiary of the Borrower under the Existing Credit
Agreement.



     “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 Letters” means (a) the letter agreement, dated October 24, 2005, among the
Borrower, the Administrative Agent, the Syndication Agent and the Joint Arrangers and (b) the
letter agreement, dated October 24, 2005, among the Borrower, the Administrative Agent and Banc of
America Securities LLC.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the 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 any Subsidiary that is organized under the laws of a
jurisdiction other than the United States, a State thereof or the District of Columbia.



10









 





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



     “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.



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



     “Guarantee” means, as to any Person, 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); provided, that
the term Guarantee shall not include endorsements for the collection or deposit 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.



     “Guarantors” means, collectively, Michaels Procurement and each other Subsidiary that
executes a Guaranty pursuant to Section 6.12.



     “Guaranty” means collectively or individually as the context may require, each
Guaranty, dated as of the Closing Date, made by the Guarantors in favor of the Administrative Agent
and the Lenders and each other Guaranty at any time delivered by a Subsidiary, each substantially
in the form of Exhibit G.



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



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following:



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



11









 





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




     (c) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade account payables in the ordinary course of business);



     (d) 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;



     (e) Capitalized Leases and Synthetic Lease Obligations; and




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



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. The amount of any Capitalized Lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date. Indebtedness of a Person shall not include endorsements of checks, bills
of exchange and other instruments for deposit or collection in the ordinary course of business.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each April, July, October and January and the Maturity Date.



     “Interest Period” means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or (in the case of any Eurocurrency
Rate Committed Loan) converted to or continued as a Eurocurrency Rate Loan and ending on the date
one, two, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice
or Bid Request, as the case may be; and (b) as to each Absolute Rate Loan, a period of not less
than 14 days and not more than 180 days as selected by the Borrower in its Bid Request;
provided that:



     (a) 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, in the case of a Eurocurrency Rate Loan, such
Business Day falls in another calendar month, in which case such Interest Period shall end on the
next preceding Business Day;



     (b) any Interest Period pertaining to a Eurocurrency Rate Loan 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; and



     (c) no Interest Period shall extend beyond the Maturity Date.



12









 





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



     “Joint Arrangers” means Banc of America Securities LLC and J.P. Morgan Securities,
Inc., in their capacities as lead arrangers and book managers.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements 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. All L/C Advances
shall be denominated in Dollars.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing. All L/C Borrowings shall be denominated in Dollars.



     “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 Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount 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.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “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 in writing to the Borrower and the Administrative Agent.



13









 





     “Letter of Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit substantially 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 2.04(i).



     “Letter of Credit Sublimit” means an amount equal to $250,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale 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).



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



     “Loan Documents” means this Agreement, each Note, each Issuer Document, each Fee
Letter, and the Guaranty.



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01.



     “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
financial condition of the Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a
material adverse effect on the ability of any Loan Party to perform any of its material obligations
under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document to which it
is a party.



     “Maturity Date” means November 18, 2010.



     “Michaels Procurement” means Michaels Stores Procurement Company, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Borrower.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower 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.




14









 






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



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, 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 and
fees that accrue after the commencement by or against any Loan Party or any 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.



     “Obligor Assets” means all assets of the Obligor Group determined in accordance with
GAAP minus, the amount of such assets relating to the capital stock of Subsidiaries of the
Obligor Group which are not members of the Obligor Group.



     “Obligor Group” means, collectively, the Borrower and the Guarantors (including any
Subsidiary of the Borrower which as of any date of determination has become a Guarantor pursuant to
the provisions of this Agreement).



     “Obligor Group Threshold Percentage” means 85% of Consolidated Total Assets.



     “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; and (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.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies (but excluding any tax, charge or levy that
constitutes an Excluded Tax) 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, other than those resulting from a transfer by a Lender of all
or a portion of its interest in this Agreement, the Notes or any other Loan Documents.



     “Outstanding Amount” means (i) with respect to Committed Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Committed Loans occurring on such date; (ii) with
respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on
such date; and (iii) with respect to any L/C Obligations on any date, the Dollar Equivalent amount
of the aggregate outstanding 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 the Borrower of
Unreimbursed Amounts.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance
with banking industry rules



15









 







on interbank compensation, and (b) with respect to any amount denominated in an Alternative
Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of the Administrative Agent in
the applicable offshore interbank market for such currency to major banks in such interbank market.



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



     “Participating Member State” means each state so described in any EMU Legislation.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “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 the Borrower or any ERISA Affiliate or to which the Borrower 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 Holders” means Sam Wyly, Charles J. Wyly, Jr., any of their immediate
family members (as defined in Regulation S-K under the Securities Laws), any of their lineal
descendants, trusts established by or for the benefit of any such Persons, entities controlled by
any such trusts, and their respective Affiliates.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



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



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



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower 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.



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



16









 





     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate 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, 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



     “Responsible Officer” means the chief executive officer, chief financial officer or
vice president-treasurer of a Loan Party. 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 the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).



     “Revaluation Date” means (a) with respect to any Loan, each of the following: (i)
each date of a Borrowing of a Eurocurrency Rate Committed Loan denominated in an Alternative
Currency, (ii) each date of a continuation of a Eurocurrency Rate Committed Loan denominated in an
Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the
Administrative Agent shall reasonably determine or the Required Lenders shall reasonably require;
and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of
a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof (solely with respect to
the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit
denominated in an Alternative Currency, and (iv) such additional dates as the Administrative Agent
or the L/C Issuer shall reasonably determine or the Required Lenders shall reasonably require.



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative Currency.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



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



     “Securities Laws” means 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 Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.



17









 





     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



     “Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, 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 10:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in an Alternative Currency.



     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
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 the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, commodity swaps, equity or equity index swaps, currency swap transactions,
cross-currency rate swap transactions, or any other substantially 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. or any International Foreign Exchange 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 Affiliate of a Lender).



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.05.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.05.



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     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.05(a). Swing Line
Loans may only be denominated in Dollars.



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.05(b), which, if in writing, shall be substantially in the form of Exhibit
C or any other form reasonably accepted by the Administrative Agent.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “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 creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



     “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.



     “Threshold Amount” means $15,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Type” means (a) with respect to a Committed Loan, its character as a Base Rate Loan
or a Eurocurrency Rate Loan, and (b) with respect to a Bid Loan, its character as an Absolute Rate
Loan or a Eurocurrency Margin Bid Loan.



     “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.



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



     “Unreimbursed Amount” has the meaning specified in Section 2.04(c)(i).



     “Yen” and “¥” mean the lawful currency of Japan.



     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:



19









 





     (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, supplemented or
otherwise modified (subject to any restrictions on such amendments, 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, 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.”



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03. Accounting Terms. (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 permitted herein; provided,
however, that the Borrower shall be permitted to change its method of accounting to the
lower of cost or market with cost being determined by the weighted average cost method (including
any changes in valuation or reporting as a result thereby).



     (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 Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the 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 and the Borrower);
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 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.



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be



20









 







deemed to include each variable interest entity that the Borrower is required to consolidate
pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an
interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary
as defined herein.



     1.04. Rounding. Any financial ratios required to be maintained by the Borrower 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 Central time (daylight or standard, as applicable).



     1.06. Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the Dollar Equivalent of 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 or the terms of any Issuer Document 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 Dollar Equivalent of the maximum stated amount of such 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. Exchange Rates; Currency Equivalents. (a) The Administrative Agent or the L/C Issuer,
as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in
Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the applicable currencies until
the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan
Parties hereunder or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or
the L/C Issuer, as applicable.



     (b) Wherever in this Agreement in connection with a Committed Borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Committed Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in
an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such
Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.



     1.08. Additional Alternative Currencies. (a) The Borrower may from time to time request that
Eurocurrency Rate Committed Loans be made and/or Letters of Credit be issued in a currency other
than those specifically listed in the definition of “Alternative Currency;” provided that such
requested currency is a lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. In the case of any such request with respect to the
making of Eurocurrency Rate Committed Loans, such request shall be subject to the approval of the
Administrative Agent and the Lenders; and in the case of any such request with respect to the
issuance of Letters of Credit, such request shall be subject to the approval of the Administrative
Agent and the L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 10:00 a.m., 20
Business Days prior to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of
Credit,



21









 







the L/C Issuer, in its or their reasonable discretion). In the case of any such request
pertaining to Eurocurrency Rate Committed Loans, the Administrative Agent shall promptly notify
each Lender thereof; and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of any
such request pertaining to Eurocurrency Rate Committed Loans) or the L/C Issuer (in the case of a
request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than
10:00 a.m., ten Business Days after receipt of such request whether it consents, in its reasonable
discretion, to the making of Eurocurrency Rate Committed Loans or the issuance of Letters of
Credit, as the case may be, in such requested currency.



     (c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Committed Loans to be
made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and
all the Lenders consent to making Eurocurrency Rate Committed Loans in such requested currency, the
Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any Committed Borrowings of
Eurocurrency Rate Committed Loans; and if the Administrative Agent and the L/C Issuer consent to
the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so
notify the Borrower and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the
Administrative Agent shall fail to obtain consent to any request for an additional currency under
this Section 1.08, the Administrative Agent shall promptly so notify the Borrower.



     1.09. Change of Currency. (a) Each obligation of the Borrower to make a payment denominated
in the national currency unit of any member state of the European Union that adopts the Euro as its
lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption
(in accordance with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the London interbank market for the basis
of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such member state adopts the Euro as its
lawful currency; provided that if any Committed Borrowing in the currency of such member
state is outstanding immediately prior to such date, such replacement shall take effect, with
respect to such Committed Borrowing, at the end of the then current Interest Period.



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent and the Borrower may from time to time agree to be
appropriate to reflect the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro.



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent and the Borrower may from time to time agree to be
appropriate to reflect a change in currency of any other country and any relevant market
conventions or practices relating to the change in currency.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01. Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower in
Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the
Availability Period, in



22









 




an aggregate amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided, however, that after giving effect to any Committed Borrowing,
(i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment, and (iii) the aggregate Outstanding Amount of all Committed Loans denominated in
Alternative Currencies plus the aggregate Outstanding Amount of all L/C Obligations in
respect of Letters of Credit issued in Alternative Currencies shall not exceed the Alternative
Currency Sublimit. Within the limits of each Lender’s Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.06, and reborrow under this Section 2.01. Committed Loans may be Base
Rate Loans or Eurocurrency Rate Loans, as further provided herein.




     2.02. Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurocurrency Rate Committed Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate
Committed Loans denominated in Dollars or of any conversion of Eurocurrency Rate Committed Loans
denominated in Dollars to Base Rate Committed Loans, (ii) four Business Days (or five Business Days
in the case of a Special Notice Currency) prior to the requested date of any Borrowing or
continuation of Eurocurrency Rate Committed Loans denominated in Alternative Currencies, and (iii)
on the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by the
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Committed Loans shall be in a principal amount of $1,000,000 or a whole multiple
of $100,000 in excess thereof. Except as provided in Sections 2.04(c) and 2.05(c), each
Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic
or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of Eurocurrency Rate
Committed Loans, (ii) the requested date of the 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, (v) if applicable, the duration of the Interest
Period with respect thereto and (vi) the currency of the Committed Loans to be borrowed. If the
Borrower fails to specify a currency in a Committed Loan Notice requesting a Borrowing, then the
Committed Loans so requested shall be made in Dollars. If the Borrower fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or
converted to, Base Rate Loans; provided, however, that in the case of a failure to
timely request a continuation of Committed Loans denominated in an Alternative Currency, such Loans
shall be continued as Eurocurrency Rate Committed Loans in their original currency with an Interest
Period of one month. Any automatic conversion to Base Rate Loans shall be effective as
of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency
Rate Committed Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of
Eurocurrency Rate Committed 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. No Committed
Loan may be converted into or continued as a Committed Loan denominated in a different



23









 







currency, but instead must be repaid in the original currency of such Committed Loan and
reborrowed in the other currency.



     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Committed Loans denominated in a currency other
than Dollars, in each case, described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later
than 1:00 p.m., in the case of any Committed Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any Committed Loan in an
Alternative Currency, in each case 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 Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the Borrower 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 Borrower; provided, however, that if, on the date the Committed Loan
Notice with respect to such Borrowing denominated in Dollars is given by the Borrower, there are
L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to
the payment in full of any such L/C Borrowings, and second, shall be made available to the
Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurocurrency Rate Committed Loan may be continued
or converted only on the last day of an Interest Period for such Eurocurrency Rate Committed Loan.
During the existence of a Default, no Loans may be requested as, converted to or continued as
Eurocurrency Rate Committed Loans (whether in Dollars or any Alternative Currency) without the
consent of the Required Lenders, and the Required Lenders may demand that any or all of the then
outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be repaid, or
redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the
then current Interest Period with respect thereto.



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



     (e) 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 Interest Periods in effect with respect to Committed Loans.



     2.03. Bid Loans.



     (a) General. Subject to the terms and conditions set forth herein, each Lender agrees
that the Borrower may from time to time request the Lenders to submit offers to make loans in
Dollars (each such loan, a “Bid Loan”) to the Borrower prior to the Maturity Date pursuant
to this Section 2.03; provided, however, that after giving effect to any
Bid Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of all Bid Loans shall not exceed



24









 







the Bid Loan Sublimit. There shall not be more than five different Interest Periods in effect
with respect to Bid Loans at any time.



     (b) Requesting Competitive Bids. The Borrower may request the submission of
Competitive Bids by delivering a Bid Request to the Administrative Agent not later than 12 Noon (i)
one Business Day prior to the requested date of any Bid Borrowing that is to consist of Absolute
Rate Loans, or (ii) four Business Days prior to the requested date of any Bid Borrowing that is to
consist of Eurocurrency Margin Bid Loans. Each Bid Request shall specify (i) the requested date of
the Bid Borrowing (which shall be a Business Day), (ii) the aggregate principal amount of Bid Loans
requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (iii) the
Type of Bid Loans requested, and (iv) the duration of the Interest Period with respect thereto, and
shall be signed by a Responsible Officer of the Borrower. No Bid Request shall contain a request
for (i) more than one Type of Bid Loan or (ii) Bid Loans having more than three different Interest
Periods. Unless the Administrative Agent otherwise agrees in its sole and absolute discretion, the
Borrower may not submit a Bid Request if it has submitted another Bid Request within the prior
three Business Days.



     (c) Submitting Competitive Bids.




     (i) The Administrative Agent shall promptly notify each Lender of each Bid Request
received by it from the Borrower and the contents of such Bid Request.




     (ii) Each Lender may (but shall have no obligation to) submit a Competitive Bid
containing an offer to make one or more Bid Loans in response to such Bid Request. Such
Competitive Bid must be delivered to the Administrative Agent not later than 9:30 a.m. (A)
on the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, and
(B) three Business Days prior to the requested date of any Bid Borrowing that is to consist
of Eurocurrency Margin Bid Loans; provided, however, that any Competitive
Bid submitted by Bank of America in its capacity as a Lender in response to any Bid Request
must be submitted to the Administrative Agent not later than 9:15 a.m. on the date on which
Competitive Bids are required to be delivered by the other Lenders in response to such Bid
Request. Each Competitive Bid shall specify (A) the proposed date of the Bid Borrowing; (B)
the principal amount of each Bid Loan for which such Competitive Bid is being made, which
principal amount (x) may be equal to, greater than or less than the Commitment of the
bidding Lender, (y) must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof,
and (z) may not exceed the principal amount of Bid Loans for which Competitive Bids were
requested; (C) if the proposed Bid Borrowing is to consist of Absolute Rate Bid Loans, the
Absolute Rate offered for each such Bid Loan and the Interest Period applicable thereto; (D)
if the proposed Bid Borrowing is to consist of Eurocurrency Margin Bid Loans, the
Eurocurrency Bid Margin with respect to each such Eurocurrency Margin Bid Loan and the
Interest Period applicable thereto; and (E) the identity of the bidding Lender.




     (iii) Any Competitive Bid shall be disregarded if it (A) is received after the
applicable time specified in clause (ii) above, (B) is not substantially in the form of a
Competitive Bid as specified herein, (C) contains qualifying, conditional or similar
language, (D) proposes terms other than or in addition to those set forth in the applicable
Bid Request, or (E) is otherwise not responsive to such Bid Request. Any Lender may correct
a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid
(identified as such) not later than the applicable time required for submission of
Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a
revocation of the Competitive Bid that contained the manifest error. The Administrative
Agent may, but shall not be required to, notify any Lender of any manifest error it detects
in such Lender’s Competitive Bid.



25









 






     (iv) Subject only to the provisions of Sections 3.02, 3.03 and
4.02 and clause (iii) above, each Competitive Bid shall be irrevocable.



     (d) Notice to Borrower of Competitive Bids. Not later than 11:00 a.m. (i) on the
requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) three
Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurocurrency
Margin Bid Loans, the Administrative Agent shall notify the Borrower of the identity of each Lender
that has submitted a Competitive Bid that complies with Section 2.03(c) and of the terms of
the offers contained in each such Competitive Bid.



     (e) Acceptance of Competitive Bids. Not later than 11:00 a.m. (i) on the requested
date of any Bid Borrowing that is to consist of Absolute Rate Loans, and (ii) three Business Days
prior to the requested date of any Bid Borrowing that is to consist of Eurocurrency Margin Bid
Loans, the Borrower shall notify the Administrative Agent of its acceptance or rejection of the
offers notified to it pursuant to Section 2.03(d). The Borrower shall be under no
obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the
case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids
for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or
in part; provided that:




     (i) the aggregate principal amount of each Bid Borrowing may not exceed the applicable
amount set forth in the related Bid Request;




     (ii) the principal amount of each Bid Loan must be $5,000,000 or a whole multiple of
$1,000,000 in excess thereof;




     (iii) the acceptance of offers may be made only on the basis of ascending Absolute
Rates or Eurocurrency Bid Margins within each Interest Period; and




     (iv) the Borrower may not accept any offer that is described in Section
2.03(c)(iii) or that otherwise fails to comply with the requirements hereof.



     (f) Procedure for Identical Bids. If two or more Lenders have submitted Competitive
Bids at the same Absolute Rate or Eurocurrency Bid Margin, as the case may be, for the same
Interest Period, and the result of accepting all of such Competitive Bids in whole (together with
any other Competitive Bids at lower Absolute Rates or Eurocurrency Bid Margins, as the case may be,
accepted for such Interest Period in conformity with the requirements of Section
2.03(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable
Bid Borrowing to exceed the amount specified therefor in the related Bid Request, then, unless
otherwise agreed by the Borrower, the Administrative Agent and such Lenders, such Competitive Bids
shall be accepted as nearly as possible in proportion to the amount offered by each such Lender in
respect of such Interest Period, with such accepted amounts being rounded to the nearest whole
multiple of $1,000,000.



     (g) Notice to Lenders of Acceptance or Rejection of Bids. The Administrative Agent
shall promptly notify each Lender having submitted a Competitive Bid whether or not its offer has
been accepted and, if its offer has been accepted, of the amount of the Bid Loan or Bid Loans to be
made by it on the date of the applicable Bid Borrowing. Any Competitive Bid or portion thereof
that is not accepted by the Borrower by the applicable time specified in Section 2.03(e)
shall be deemed rejected.



     (h) Notice of Eurocurrency Rate. If any Bid Borrowing is to consist of Eurocurrency
Margin Loans, the Administrative Agent shall determine the Eurocurrency Rate for the relevant
Interest Period,



26









 







and promptly after making such determination, shall notify the Borrower and the Lenders that
will be participating in such Bid Borrowing of such Eurocurrency Rate.



     (i) Funding of Bid Loans. Each Lender that has received notice pursuant to
Section 2.03(g) that all or a portion of its Competitive Bid has been accepted by the
Borrower shall make the amount of its Bid Loan(s) available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 12 Noon on the date
of the requested Bid Borrowing. Upon satisfaction of the applicable conditions set forth in
Section 4.02, the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent.



     (j) Notice of Range of Bids. After each Competitive Bid auction pursuant to this
Section 2.03, the Administrative Agent shall notify each Lender that submitted a
Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and
accepted for each Bid Loan and the aggregate amount of each Bid Borrowing.



     2.04. Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) 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 2.04, (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 denominated in Dollars or in one or more
Alternative Currencies for the account of the Borrower or its domestic Subsidiaries, and to
amend or extend Letters of Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally
agree to participate in Letters of Credit issued for the account of the Borrower or its
domestic Subsidiaries and any drawings thereunder; provided that after giving effect
to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings
shall not exceed the Aggregate Commitments, (x) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment,
(y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit and (z) the aggregate Outstanding Amount of all Committed Loans denominated in
Alternative Currencies plus the aggregate Outstanding Amount of all L/C Obligations
in respect of Letters of Credit issued in Alternative Currencies shall not exceed the
Alternative Currency Sublimit. Each request by the Borrower for the issuance or amendment
of a Letter of Credit shall be deemed to be a representation by the Borrower 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, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date shall be subject to and governed by the terms and conditions
hereof (including, without limitation, Section 2.04(i)).




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



27









 






     (A) subject to Section 2.04(b)(iii), the expiry date of such requested 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) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless the Required Lenders have approved such
expiry date; provided that one or more Letters of Credit may contain an
expiration date beyond the Letter of Credit Expiration Date so long as the Borrower
Cash Collateralizes such Letters of Credit pursuant to Section 2.04(g)(ii).




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
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 referred to in
Article III hereof 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
general applicability of the L/C Issuer;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $25,000, in the case
of a commercial Letter of Credit, or $250,000, in the case of a standby Letter of
Credit;




     (D) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder;




     (F) a default of any Lender’s obligations to fund under Section 2.04(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender; or




     (G) the L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency.




     (iv) 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.



28









 






     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




     (vi) The L/C Issuer shall act on behalf of the 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 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 term “Administrative 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 Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days 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 satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day);
(B) the amount and currency 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; and (G) 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 reasonably require.
Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative 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 or the Administrative Agent may
reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one 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
L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable domestic Subsidiary) 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 of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,



29









 







purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Lender’s Applicable Percentage times the amount of such
Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its reasonable discretion, agree to issue a 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 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 Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower 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 Letter of Credit at any time to an expiry date not later
than the Letter of Credit Expiration Date (or a later date if permitted pursuant to clause
(ii)(B) of Section 2.03(a); 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 Letter of Credit in
its revised form (as extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of Section 2.04(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 to prevent such extension (but only if such election is consistent with the
terms of the applicable Letter of Credit and the Borrower would not be entitled to the
issuance of such Letter of Credit in its revised form (as extended) under the terms hereof)
or (2) from the Administrative Agent, any Lender or the 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 Borrower and the Administrative 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 promptly notify the Borrower and
the Administrative Agent thereof in accordance with its customary practices. In the case of
a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse the
L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its option) shall
have specified in such notice that it will require reimbursement in Dollars, or (B) in the
absence of any such requirement for reimbursement in Dollars, the Borrower shall have
notified the L/C Issuer promptly following receipt of the notice of drawing that the
Borrower will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the
L/C Issuer shall notify the Borrower in writing of the Dollar Equivalent of the amount of
the drawing promptly following the determination thereof. Not later than 10:00 a.m. (or in
the event the Borrower has not been notified of such drawing prior to such time, within two
hours of such notice) on the date of any payment by the L/C Issuer under a Letter of Credit
to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C
Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date,
an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative



30









 







Agent in an amount equal to the amount of such drawing in the applicable currency. If
the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing
(expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter
of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and
the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower
shall be deemed to have requested a Committed Borrowing of Base Rate Loans 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 Base
Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments
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 or the Administrative Agent pursuant to
this Section 2.04(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 pursuant to Section 2.04(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars,
at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to
its Applicable Percentage of the Unreimbursed Amount not later than 12 Noon on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.04(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Borrower 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 within three days of
demand (together with interest) and shall bear interest at the Base Rate; provided that the
Administrative Agent shall have the right to convert such L/C Borrowing into a Committed
Loan bearing interest at the Base Rate (without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans or the
conditions set forth in Section 4.02). In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section
2.04(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 2.04.




     (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.04(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
2.04(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 L/C Issuer, the 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 2.04(c) is subject to the conditions



31









 







set forth in Section 4.02 (other than delivery by the Borrower of a Committed
Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower 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 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 2.04(c) by the time specified in Section
2.04(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), 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 applicable
Overnight Rate from time to time in effect. A certificate of the L/C Issuer submitted to
any Lender (through the Administrative Agent) 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 2.04(c), if the Administrative Agent 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 Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent 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 Dollars in the same funds as those received by the
Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(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 Lender shall pay to the
Administrative Agent for the account of the L/C Issuer 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 by such Lender, at a rate per annum equal to the applicable
Overnight Rate 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 the 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 the
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;



32









 






     (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
(as amended); provided that such draft or certificate must materially comply with the terms
of such Letter of Credit (as amended); or any payment made by the L/C Issuer under such
Letter of Credit to any Person purporting to be a 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, the Borrower or any Subsidiary; or




     (vi) any material adverse change in the relevant exchange rates or in the availability
of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant
currency markets generally.




The Borrower shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with the
Borrower’s instructions or other irregularity, the Borrower will promptly notify the L/C
Issuer. The Borrower 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 Borrower 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, 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; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes 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 Borrower’s 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, 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 2.04(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the
L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves 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



33









 







their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, 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 (i) (A) if
an Event of Default has occurred and is continuing or (B) if, as of the Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations and (ii) if, six
days prior to the Maturity Date, any L/C Obligation remains outstanding with respect to any Letter
of Credit stated to expire beyond the Letter of Credit Expiration Date, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all such L/C Obligations. In
addition, if the Administrative Agent notifies the Borrower at any time that the Outstanding Amount
of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect,
then, within two Business Days after receipt of such notice, the Borrower shall Cash Collateralize
the L/C Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C
Obligations exceeds the Letter of Credit Sublimit. Sections 2.06 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.04, Section 2.06 and Section 8.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings.



     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (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 Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the relevant (i.e.,
for standby Letters of Credit or commercial Letters of Credit) Applicable Rate times the
Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit. For
purposes of computing the daily amount 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. Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the
first Business Day after the end of each April, July, October and January, 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. If there is any change in the Applicable Rate during any
fiscal 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.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee (i)
with respect



34









 




to each commercial Letter of Credit, at a rate separately agreed between the Borrower and the
L/C Issuer, computed on the Dollar Equivalent of the amount of such Letter of Credit, and payable
upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of
Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the
Borrower and the L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and
payable upon the effectiveness of such amendment and (iii) with respect to each standby Letter of
Credit, at a rate separately agreed between the Borrower and the L/C Issuer, computed on the Dollar
Equivalent of the amount of such Letter of Credit, and payable upon the issuance thereof. Such
fronting fees shall be due and payable on the tenth Business Day after the end of each April, July,
October and January in respect of the most recently-ended fiscal quarterly period (or portion
thereof, in the case of the first payment), 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 such Letter of Credit shall be determined in accordance with Section
1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own account, in
Dollars, the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to 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.



     (l) Letters of Credit Issued for Domestic Subsidiaries. Notwithstanding that a Letter
of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a domestic Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer
hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges
that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such
Subsidiaries.



     2.05. 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 2.05, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the
Borrower from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Commitment; provided, however, that
after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Commitment. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each
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.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by



35









 




telephone. 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, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $5,000,000, 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 of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. 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 (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(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 (including at the reasonable
request of any Lender) prior to 1:30 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 to the first sentence of Section 2.05(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 will, not later than 2:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Borrower pursuant to the Borrower’s instructions in Same Day 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 Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.
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 Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the Swing Line
Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than
12 Noon on the day specified in such Committed Loan Notice, whereupon, subject to
Section 2.05(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative
Agent 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 2.05(c)(i), the request for Base Rate Committed
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 Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent 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 2.05(c) by the time specified in Section
2.05(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment



36









 







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 applicable Overnight Rate from time to time in
effect. A certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) 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 2.05(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 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 2.05(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 the 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 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 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 applicable Overnight Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.05 to
refinance such Lender’s Applicable 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 Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.06. Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, 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 not later than
11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Committed
Loans denominated in Dollars,



37









 




(B) four Business Days (or five, in the case of prepayment of Loans denominated in Special
Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Committed Loans denominated
in Alternative Currencies and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of Eurocurrency Rate Committed Loans shall be in a minimum principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof and (iii) any prepayment of Base Rate
Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 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 Committed
Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of
such Loans. The Administrative Agent will promptly notify each Lender 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 Borrower, the Borrower 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 Eurocurrency Rate 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) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.



     (c) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), 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 not later than 12 Noon on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



     (d) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.06(d) unless after the prepayment in full of the Committed Loans and Swing Line
Loans the Total Outstandings exceed the Aggregate Commitments then in effect.



     2.07. Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. three Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any
whole integral multiple in excess thereof, (iii) the Borrower shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to
any reduction of the Aggregate Commitments, the Alternative Currency Sublimit, the Bid Loan
Sublimit, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess.
The Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued
until the effective date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.



38









 





     2.08. Repayment of Loans.



     (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans outstanding on such date.



     (b) The Borrower shall repay each Bid Loan on the last day of the Interest Period in respect
thereof.



     (c) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.



     2.09. Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Committed
Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a
rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable
Rate plus (in the case of a Eurocurrency Rate Committed Loan of any Lender which is lent
from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost;
(ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; (iii) each Bid Loan shall bear interest on the outstanding principal amount
thereof for the Interest Period therefor at a rate per annum equal to the Eurocurrency Rate for
such Interest Period plus (or minus) the Eurocurrency Bid Margin, or at the Absolute Rate for such
Interest Period, as the case may be; and (iv) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate plus the Applicable Rate.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard 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 amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard 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.




     (iii) While any Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) 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.



     2.10. Fees. In addition to certain fees described in subsections (i) and (j) of Section
2.04:



39









 





     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the
sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations. The 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 April, July,
October and January, commencing with the first such date to occur after the Closing Date, and on
the Maturity Date. The commitment fee shall be calculated quarterly in arrears, and if there is
any change in the Applicable Rate during any fiscal quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each period during such fiscal
quarter that such Applicable Rate was in effect.



     (b) Other Fees. (i) The Borrower shall pay to the Joint Arrangers and the
Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the
times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.




     (ii) The Borrower shall pay to the Lenders, in Dollars, such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.



     2.11. Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” 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),
or, in the case of interest in respect of Committed Loans denominated in Alternative Currencies as
to which market practice differs from the foregoing, in accordance with such market practice.
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 2.13(a), bear interest for one day. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



     2.12. Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower 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 Borrower 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 in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) 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, currency
and maturity of its Loans and payments with respect thereto.



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     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative 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 and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     2.13. Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein and except with respect to principal of and interest on Loans denominated in an
Alternative Currency, all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than 1:00 p.m. on the date
specified herein. Except as otherwise expressly provided herein, all payments by the Borrower
hereunder with respect to principal and interest on Loans denominated in an Alternative Currency
shall be made to the Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and
in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the
dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent
may require that any payments due under this Agreement be made in the United States. If, for any
reason, the Borrower is prohibited by any Law from making any required payment hereunder in an
Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of
the Alternative Currency payment amount. The Administrative Agent 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. All
payments received by the Administrative Agent (i) after 1:00 p.m., in the case of payments in
Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of
payments in an Alternative Currency, shall in each case be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue. If any payment to be
made by the Borrower 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 shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurocurrency Rate Loans (or, in the case of any Committed Borrowing of Base
Rate Loans, prior to 11:00 a.m. on the date of such Committed Borrowing) that such Lender will not
make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent 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 Base 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 Borrower 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, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in Same Day Funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate and (B) in the
case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If
the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly



41









 




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





     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in Same Day 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 the
Administrative Agent, at the Overnight Rate.



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



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent 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 Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall 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.



     2.14. 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 any of
the Committed Loans made by it, or the participations in L/C Obligations or in Swing 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) notify the Administrative Agent of such fact, and



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     (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 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 in accordance with the aggregate amount of principal of and accrued interest on
their respective Committed Loans and other amounts owing them, provided that:




     (i) 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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower 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 Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).




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



     2.15. Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon written notice to
the Administrative Agent and the Lenders, the Borrower may from time to time following the Closing
Date, request an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $100,000,000; provided that (i) any such request for an increase shall be in a
minimum amount of $5,000,000, and (ii) the Borrower may make a maximum of ten such requests. At
the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which shall in no event
be less than ten 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
in writing within such time period whether or not it agrees to increase its Commitment and, if so,
whether by an amount equal to, greater than, or less than its Applicable Percentage of such
requested increase. Any Lender not responding within such time period shall be deemed to have
declined to increase its Commitment.



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. In the event that the Lenders do not express willingness to increase their Commitments
in an amount equal to the amount requested by the Borrower, to achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent and the L/C Issuer
(which approvals shall not be unreasonably withheld, conditioned or delayed), the Borrower may also
invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.




43










 






     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such increase.
The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation
of such increase and the Increase Effective Date.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, (i) the Borrower shall deliver 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 increase, and (B) in the case of the Borrower,
certifying that, before and after giving effect to such 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) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, and (2) no Default exists and (ii) the
Borrower, the Lenders and any such additional Eligible Assignees shall otherwise have executed and
delivered such other instruments and documents as the Administrative Agent shall have reasonably
requested in connection with such increase. The Borrower shall prepay any Committed Loans
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 Loans ratable with
any revised Applicable Percentages arising from any nonratable increase in the Commitments under
this Section.



     (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.14 or 10.01 to the contrary.



     2.16. Guaranties. The Obligations shall be guaranteed pursuant to the terms of the Guaranty,
executed by each Guaranty.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01. Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct 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 (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made; provided,
however, that the Borrower shall be entitled to deduct and withhold any Taxes and shall not
be required to increase any such amounts payable to any Lender not organized under the laws of the
United States of America or any state thereof (or whose Lending Office is located in a jurisdiction
outside the United States of America) if such Lender fails to comply with the requirements of
Section 3.01(e) hereof, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.



44









 





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



     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the L/C Issuer, within 30 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) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable 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 setting forth in reasonable
detail the computations made to determine such payment or liability delivered to the Borrower by a
Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error. Notwithstanding the foregoing, the Borrower shall not be liable for the reimbursement of
any interest, penalties or expenses relating to Indemnified Taxes or Other Taxes arising from the
gross negligence or willful misconduct of the Administrative Agent, any Lender or the L/C Issuer in
taking any action it was required to take.



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



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower 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 Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such payments
to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as
will enable the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.


Without limiting the generality of the foregoing, in the event that the Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to the 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 becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the 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,



45









 






     (iii) in the case of a Foreign Lender claiming 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 is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” 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 Borrower to
determine the withholding or deduction required to be made.



     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the
Administrative Agent or the Borrower shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrower pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in such other jurisdiction. Each Lender shall
promptly (i) notify the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws of any such jurisdiction that the Borrower make any deduction or withholding for
taxes from amounts payable to such Lender. Additionally, the Borrower shall promptly deliver to
the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably
request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and
forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed
and completed by the Borrower, as are required to be furnished by such Lender or the Administrative
Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of
Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such
jurisdiction. If such Person fails to deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an amount equivalent to
the applicable withholding tax imposed by Sections 1441 and 1442 of the Code, without reduction.
If any Governmental Authority asserts that the Administrative Agent did not properly withhold any
Tax or other amount from payments made in respect of such Person, such Person shall indemnify the
Administrative Agent therefor, including all penalties and interest, any Taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this Section 3.01,
and costs and expenses (including all attorney fees and expenses) of the Administrative Agent.



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its reasonable discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all reasonable out-of-pocket expenses of the Administrative Agent,
such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund), provided that the
Borrower, upon the request of the Administrative Agent, such Lender or the L/C Issuer,



46









 







agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or
the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available its tax returns
(or any other information relating to its taxes that it deems confidential) to the Borrower or any
other Person.



     3.02. Illegality. If any Lender determines that any Change in Law has made it unlawful, or
that any Governmental Authority after the date hereof (or, if later, the date on which such Lender
became a Lender hereunder) has asserted that it is unlawful, for such Lender or its applicable
Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or
an Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency
Rate, or any Governmental Authority has after the date hereof (or, if later, the date on which such
Lender became a Lender hereunder) imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected
currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate
Committed Loans to Eurocurrency Rate Committed Loans shall be suspended until such Lender notifies
the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon written demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert such Eurocurrency Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.



     3.03. Inability to Determine Rates. If the Required Lenders determine in their reasonable
discretion that for any reason in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that (a) deposits (whether in Dollars or an Alternative
Currency) are not being offered to banks in the applicable offshore interbank market for such
currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Committed Loan, or (c) the Eurocurrency Rate
for any requested Interest Period with respect to a proposed Eurocurrency Rate Committed Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be
suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Committed Loans in the affect
currency or currencies or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans in the amount specified therein.



     3.04. Increased Costs; Reserves of Eurocurrency 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



47









 







of, or credit extended or participated in by, any Lender (except (A) any reserve
requirement contemplated by Section 3.04(e) and (B) the requirements of the Bank of
England and the Financial Services Authority or the European Central Bank reflected in the
Mandatory Cost, other than as set forth below) 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 Eurocurrency 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);




     (iii) result in the Mandatory Cost, as calculated hereunder, not representing the cost
to any Lender of complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making, funding or
maintaining Eurocurrency Rate Loans; or




     (iv) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate 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 Eurocurrency Rate 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 the written request of such Lender or the L/C
Issuer, the Borrower 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 in good faith
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 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 the Borrower 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 or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
delivered to the Borrower 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 explaining in reasonable detail the method by which such amount or amounts
shall have been determined shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 30 days after receipt thereof.



48









 





     (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 shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than 90 days prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the 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 90-day period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) 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 Eurocurrency 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 and on an equitable basis, which determination shall be conclusive), and
(ii) as long as such Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory authority imposed in
respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such
Lender (as determined by such Lender in good faith, which determination shall be conclusive absent
manifest error), which in each case shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower shall have received at least 30 days’ prior
notice (with a copy to the Administrative Agent) of such additional interest or costs from such
Lender. If a Lender fails to give notice 30 days prior to the relevant Interest Payment Date, such
additional interest or costs shall be due and payable 30 days from receipt of such notice.



     (f) No Compensation. Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect of any Bid Loan
(i) if the Change in Law that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant to which such Bid Loan was
made or (ii) if it is not at the time the general policy or practice of such Lender to demand
compensation in similar circumstances in similar credit agreements.



     3.05. Compensation for Losses. Upon the written demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any reasonable loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower;



     (c) any failure by the Borrower to make payment of any Loan or drawing under any Letter of
Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date
or any payment thereof in a different currency; or



49









 





     (d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


including any reasonable loss of anticipated profits, any reasonable foreign exchange losses and
any reasonable loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan, from fees payable to terminate the deposits from which such funds were
obtained or from the performance of any foreign exchange contract. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the foregoing.




     Notwithstanding the foregoing, the Borrower shall not be required to compensate a Lender
pursuant to the foregoing provisions of this Section for any losses, costs or expenses incurred
more than 90 days prior to the date that such Lender notifies the Borrower of such losses, costs
and/or expenses.



     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Committed
Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in
the offshore interbank market for such currency a comparable amount and for a comparable period,
whether or not such Eurocurrency Rate Committed 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 explaining in reasonable detail the method by which such
amount or amounts shall have been determined shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower will pay such Lender the amount shown as due on any
such certificate within 30 days after receipt thereof.



     3.06. Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01 or as
a result of any Mandatory Cost, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender shall use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce such Mandatory Cost or amounts payable pursuant to Section
3.01 or 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 to any unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01 or as a result of
any Mandatory Cost, the Borrower may (i) replace such Lender in accordance with Section
10.13 or (ii) reduce the Aggregate Commitment in the full amount of such Lender’s Applicable
Percentage of the Aggregate Commitment; provided that 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 and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the Borrower. If the
Aggregate Commitment is reduced by the Borrower pursuant to clause (ii) above, the Borrower and the
Lenders agree that the Applicable Percentage of each Lender will be automatically ratably adjusted
to reflect such reduction of the Aggregate Commitment.



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     3.07. Requests for Compensation.



     (a) No Duplication. Any amount payable by the Borrower on account of any of the
foregoing Sections contained in this Article III shall not be duplicative of any amount
paid under any other such Sections.



     (b) Refunds. Any amount reasonably determined by the Administrative Agent to be paid
by the Borrower in error under any of the foregoing Sections contained in this Article III
shall be promptly refunded to the Borrower or applied to amounts due and owing hereunder, as the
Borrower may elect.



     3.08. Survival. All of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



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 on or prior to the
Closing Date, of the following conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each in form and
substance reasonably satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement, sufficient in number for distribution to
the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) executed counterparts of each of the other Loan Documents;




     (iv) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require (A) evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection this Agreement and the
other Loan Documents to which such Loan Party is a party, and (B) authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents to which such Loan
Party is a party;




     (v) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, validly existing and
in good standing in its jurisdiction of incorporation;




     (vi) a favorable opinion of Jones Day, counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably request;




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied and
(B) that, as of the



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Closing Date, there has been no event or circumstance since the date of the Audited
Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;




     (viii) payoff letter evidencing that the Existing Credit Agreement has been, or
concurrently with the Closing Date is, being terminated; and




     (ix) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.



     (b) Any fees required to be paid on or before the Closing Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable
fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at
least two (2) Business Days prior to the Closing Date.



     (d) As of the Closing Date, since the date of the Audited Financial Statements, there shall
have been no event or circumstance that has had or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.



     (e) The Closing Date shall have occurred on or before December 30, 2005.



     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 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
written 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 Committed
Loans to the other Type, or a continuation of Eurocurrency Rate Committed Loans) is subject to the
following conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V or any
other Loan Document, or which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct in all material 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) and (b) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
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 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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     (d) In the case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to be denominated in
an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in
the relevant Alternative Currency.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion
of Committed Loans to the other Type or a continuation of Eurocurrency Rate Committed Loans)
submitted by the Borrower shall be deemed to be a representation and warranty 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.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01. Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is
duly organized or formed, validly existing and 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, 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 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 (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect.



     5.02. Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any material
breach or contravention of, or the creation of any material Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a party or affecting such
Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its
property is subject, in each case, in a manner that could reasonably be expected to result in a
Material Adverse Effect; or (c) violate any Law, except to the extent that such violation could not
reasonably be expected to have a Material Adverse Effect.



     5.03. Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or 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.



     5.04. Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, 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 such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.



     5.05. Financial Statements.



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     (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 and (ii)
fairly present the financial condition of the Borrower 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.



     (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated July
30, 2005, and the related consolidated statements of income or operations and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of the Borrower 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.



     (c) The consolidated forecasted balance sheet and statements of income and cash flows of the
Borrower and its Subsidiaries, dated October 21, 2005, delivered to the Administrative Agent and
the Lenders were prepared in good faith on the basis of the assumptions stated therein, which
assumptions the Borrower deems were reasonable in light of the conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, the Borrower’s good faith
estimate of its future financial performance.



     5.06. Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of any Responsible Officer of the Borrower after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority,
by or against the Borrower or any of its Subsidiaries or against any of their 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, or (b) except as disclosed in the Borrower’s most recent
annual report (filed on Form 10-K or such other form required by the SEC) and subsequent
periodic reports filed under the Securities and Exchange Act of 1934, either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse
Effect.



     5.07. No Default. Neither the Borrower nor any Subsidiary is in default under or with respect
to any Contractual Obligation that could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement or any other Loan
Document.



     5.08. Ownership of Property; Liens. Each of the Borrower and each Subsidiary 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 as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09. Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing applicable Environmental Laws and claims
alleging potential liability or responsibility for violation of any applicable Environmental Law on
their respective businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that, except as disclosed in the Borrower’s most recent periodic report filed
under the Securities and Exchange Act of 1934, such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10. Intentionally Omitted.



54









 





     5.11. Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, except those returns and reports as to which
the failure to so file would not create an outstanding liability for taxes due which would
reasonably be expected to result in a Material Adverse Effect, and have paid all Federal, state 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 diligently conducted and for which adequate
reserves have been provided in accordance with GAAP or to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.



     5.12. ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws, except where such noncompliance would not have a
Material Adverse Effect. The Borrower 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.



     (b) There are no pending or, to the knowledge of the Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably
be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) based on the
latest valuation of each Pension Plan prepared for financial disclosure purposes under Statement of
Financial Accounting Standards (“SFAS”) 87, as amended by SFAS 132, and on the actuarial
methods and assumptions employed for purposes of such valuation, the aggregate Unfunded Pension
Liability of all Pension Plans which have any Unfunded Pension Liability does not exceed the
Threshold Amount; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any material 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 the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material 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 the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.



     5.13. Subsidiaries; Guarantors. The Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13. Part (b) of Schedule 5.13
lists all Guarantors.



     5.14. Margin Regulations; Investment Company Act; Public Utility Holding Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section
7.01 or subject to any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the
scope of Section 8.01(e) will be margin stock.



55









 





     (b) None of the Borrower or any Subsidiary (i) is a “holding company,” or a “subsidiary
company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary
company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of
1935, or (ii) is or is required to be registered as an “investment company” under the Investment
Company Act of 1940.



     5.15. Disclosure. All written certificates, documents and written statements heretofore
furnished by the Borrower to the Administrative Agent or the Lenders for use in connection with
this Agreement, and all such information hereafter furnished by the Borrower to the Administrative
Agent or the Lenders for use in connection with this Agreement, will not, at the time delivered,
taken as a whole with all other certificates, documents and written statements furnished
substantially contemporaneously therewith, contain any untrue statement of a material fact or omit
to state a material fact known to any Responsible Officer of the Borrower and necessary in order to
make the statements made or to be made, in light of the circumstances under which they were or will
be made, not misleading; provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time in light of the circumstances when made.



     5.16. Compliance with Laws. Each of the Borrower 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 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. The Borrower and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights that are reasonably necessary
for the operation of their respective businesses, without conflict with the rights of any other
Person, except where the failure to own such property or rights would not have a Material Adverse
Effect or where the failure to own such property or rights relates to a Subsidiary that was
acquired within 60 days prior to the date such representation is being made and the Borrower is
using reasonable efforts to obtain such property and rights. To the knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any
rights held by any other Person, except where such infringement could not reasonably be expected to
result in a Material Adverse Effect. Except as specifically disclosed in Schedule 5.17, no
claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrower,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



     5.18. Fiscal Year. As of the Closing Date, the Borrower and the Subsidiaries have a fiscal
year which ends on the Saturday nearest January 31 of each calendar year, with fiscal quarters
consisting of four (4) thirteen (13) week periods



     5.19. Obligor Group Requirement. As of the Closing Date, the Obligor Assets are not less than
85% of Consolidated Total Assets.



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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, or any Letter of Credit shall remain outstanding, the
Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, and 6.03) cause each Subsidiary to:



     6.01. Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available, but in any event within 105 days after the end of each fiscal year
of the Borrower, a consolidated balance sheet of the Borrower 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 in reasonable detail and prepared in accordance with
GAAP, audited and accompanied by a report and opinion of a Registered Public Accounting Firm of
nationally recognized standing reasonably acceptable to the Required Lenders, which report and
opinion shall be prepared in accordance with generally accepted auditing standards and applicable
Securities Laws 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



     (b) as soon as available, but in any event within 50 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended
October 29, 2005), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated statements of income or operations and cash
flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable
detail, certified by a Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.



With respect to any information contained in materials furnished pursuant to Section
6.02(b), the Borrower shall not be separately required to furnish such information under clause
(a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to
furnish the information and materials described in clauses (a) and (b) above at the times specified
therein.



     6.02. Certificates; Other Information. Deliver to the Administrative Agent and each Lender,
in form and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible
Officer of the Borrower;



     (b) promptly after the same are publicly available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Borrower, and
copies of all annual, regular, periodic and special reports and registration statements which the
Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent
pursuant hereto;



57









 





     (c) promptly, and in any event within 20 Business Days after receipt thereof by any Loan Party
or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other operational results of
any Loan Party or any Subsidiary thereof; and



     (d) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(b) (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 Borrower posts such documents, or provides a link thereto on the
Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if
any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i)
the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Borrower to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(a) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no 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 Borrower 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 Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Arrangers
will make available to the Lenders and the L/C Issuer materials and/or information provided by or
on behalf of the Borrower 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 Borrower or its securities) (each, a
“Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of
any outstanding debt or equity securities that are registered or issued pursuant to a private
offering or is actively contemplating issuing any such securities (w) all Borrower Materials that
are to be made available to Public Lenders 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 Borrower shall be deemed to have
authorized the Administrative Agent, the Joint Arrangers, the L/C Issuer and the Lenders to treat
such Borrower Materials as not containing any material non-public information with respect to the
Borrower or its securities for purposes of United States Federal and state 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 Joint Arrangers will 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 notify the Administrative Agent and each Lender:



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     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material adverse development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event; and



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary (other than a change to a cost accounting method).



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to therein and stating
what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant
to Section 6.03(a) shall describe with particularity any and all 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, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary, (b) all lawful claims 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, except in all of the foregoing clauses (a) through (c) where the
failure to pay could not reasonably be expected to result in a Material Adverse Effect.
Notwithstanding the foregoing, with respect to Liens or charges securing an amount less than
$1,000,000, the Borrower and its Subsidiaries shall have 60 days grace to accomplish such discharge
from the date the Borrower becomes aware of such Lien or charge; provided that the Borrower
and each Subsidiary of the Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any Lien that may have attached as
security therefor.



     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
except in a transaction permitted by Section 7.02 or, with respect to any Subsidiary of the
Borrower, to the extent the failure to do so could 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 to the
extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks,
the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
Notwithstanding the foregoing, nothing in this Section shall prevent the Borrower from dissolving
or disposing of a Subsidiary, if such dissolution or disposition (i) is, in the judgment of the
Borrower, desirable in the conduct of its business and (ii) could not reasonably be expected to
have a Material Adverse Effect.



     6.06. Maintenance of Properties. (a) 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 excepted; (b) make all necessary repairs thereto and renewals and
replacements



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thereof except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) use the standard of care typical in the industry in the operation and
maintenance of its facilities. Notwithstanding the foregoing, nothing in this Section shall prevent
the Borrower or any of its Subsidiaries from discontinuing the operation and maintenance of any of
its businesses or properties, if such discontinuance (i) is, in the judgment of the Borrower and
its Subsidiaries, desirable in the conduct of its or their business and (ii) could not reasonably
be expected to have a Material Adverse Effect.



     6.07. Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, 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, of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under similar circumstances by
such other Persons.



     6.08. Compliance with Laws. Comply in all material respects 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) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09. Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied (except as a result of a change to
its method of accounting to a cost accounting method) shall be made of all financial transactions
and matters involving the assets and business of the Borrower or such Subsidiary, as the case may
be; and (b) maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such
Subsidiary, as the case may be.



     6.10. Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its material properties, to
examine its corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that when an Event of Default exists the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice. Notwithstanding the foregoing, prior to the occurrence of a Default, the
Administrative Agent, the Lender, or their respective representatives and independent contractors
will obtain the prior approval of a Responsible Officer of the Borrower, which approval shall not
be unreasonably withheld, prior to any such discussions with officers of the Borrower or any of its
Subsidiaries.



     6.11. Use of Proceeds. Use the proceeds of the Credit Extensions for working capital and
other general corporate purposes not in contravention of any Law or of any Loan Document, including
stock repurchases and acquisitions permitted hereunder.



     6.12. Additional Guarantors. In the event that the Obligor Assets do not equal or exceed the
Obligor Group Threshold Percentage, as evidenced by the most recent Compliance Certificate
delivered by the Borrower pursuant to Section 6.02(a), the Borrower shall cause, within 30
days of the date such Compliance Certificate is required to be delivered pursuant to Section
6.02(a), the Subsidiary or Subsidiaries (as the case may be) to become a Guarantor hereunder as
would be necessary to cause the Obligor Assets to equal or exceed the Obligor Group Threshold
Percentage. The Borrower shall cause



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such additional Subsidiaries to become a Guarantor hereunder by causing them to execute and
deliver a Guaranty and to deliver such legal opinions and other documents and instruments as the
Administrative Agent may reasonably request.



     6.13. Business Activities. The Borrower and its Subsidiaries, taken as a whole, will continue
to engage in the business conducted by the Borrower and its Subsidiaries on the Closing Date.



     6.14. Further Assurances. The Borrower will, and will cause each of its Subsidiaries to,
execute such further instruments and documents as the Administrative Agent shall reasonably request
to carry out more effectively the purposes of this Agreement and the other Loan Documents.



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, or any Letter of Credit shall remain outstanding, the
Borrower shall not, nor shall it permit any 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, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof (other than blanket Liens on the Borrower’s or its
Subsidiary’s inventory or accounts receivable);



     (c) Liens (other than blanket Liens on the Borrower’s or its Subsidiaries’ equipment,
inventory, accounts or other receivables), securing Indebtedness of the Borrower and its
Subsidiaries not to exceed 5% of the Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries;



     (d) Liens for taxes or assessments either not yet delinquent or the validity or amount of
which is being contested in good faith by appropriate proceedings diligently prosecuted and as to
which adequate reserves shall have been set aside in conformity with GAAP;



     (e) deposits or pledges to secure the payment of workers compensation, unemployment insurance
or other social security benefits or obligations, or to secure the performance of bids, trade
contracts, public or statutory obligations, surety or appeal bonds and other obligations of a like
nature incurred in the ordinary course of business;



     (f) materialmen’s, mechanic’s, workmen’s, repairmen’s, or other Liens of a like nature arising
in the ordinary course of business or by operation of law to secure obligations not yet delinquent
or which within 30 days of receipt by the Borrower or any of its Subsidiaries of any Lien filing by
a Lien claimant are (i) being contested by the Borrower or such Subsidiary in good faith and for
which adequate reserves shall have been set aside in conformity with GAAP or (ii) as to which
adequate bonds shall have been obtained;



     (g) Liens securing Indebtedness of the Borrower and its Subsidiaries represented by
Capitalized Lease obligations, Synthetic Lease Obligations, mortgage financings or purchase money
obligations, in each case incurred for the purpose of financing or refinancing all or any part of
the purchase price or costs of construction, repairs, renovation, remodeling, expansion or other
improvement



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of property, plant and equipment, including services and equipment supporting such items used
in Borrower’s business or any Subsidiary’s business; provided that,




     (i) no such Lien shall extend to or cover any other property or assets of the Borrower
or of any Subsidiary, as the case may be, and




     (ii) the aggregate principal amount of the Indebtedness secured by all such liens in
respect of any such property or assets shall not exceed the greater of (A) the fair market
value of such property or assets at the time of such acquisition, or (B) the good faith
allocated purchase price of such assets;



     (h) consensual landlord’s Liens and landlord’s Liens arising by operation of law



     (i) Liens on or pledges of cash or cash equivalents securing the obligations of the Borrower
or any Subsidiary under or in connection with any Swap Contract, so long as the aggregate amount of
all cash or cash equivalents subject to such Liens or pledges does not exceed $25,000,000 at any
time;



     (j) judgment liens in respect of judgments that do not constitute an Event of Default under
Section 8.01(h);



     (k) any Lien on property or assets of the Borrower or any Subsidiary in favor of the Borrower
or any Subsidiary; and



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



     7.02. Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



     (a) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or
a Guarantor; and



     (b) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Guarantor is merging with another Subsidiary, the Guarantor shall be the continuing
or surviving Person.



     Notwithstanding the foregoing, nothing in this Section shall prevent the Borrower from
dissolving or disposing of a Subsidiary, if such dissolution or disposition (i) is, in the judgment
of the Borrower, desirable in the conduct of its business and (ii) could not reasonably be expected
to have a Material Adverse Effect.



     7.03. Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person;



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provided, however, that this clause (iii) shall not prohibit any negative
pledge granted to any Person prohibiting any such Lien on assets in which such Person has a prior
security interest which is permitted by Section 7.01; or (b) requires the grant of a Lien
to secure an obligation of such Person if a Lien is granted to secure another obligation of such
Person.



     7.04. Use of Proceeds. (a) Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose
in violation of Regulation U of the FRB or (b) following the application of the proceeds of each
Borrowing or drawing under each Letter of Credit, permit more than 25% of the value of the assets
(either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis)
subject to the provisions of Section 7.01 or subject to any restriction contained in any
agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating
to Indebtedness and within the scope of Section 8.01(e), to be margin stock. The Borrower
will not hold repurchased shares of its common stock purchased with the proceeds of any Credit
Extension as treasury stock if, after giving effect to such action, the Borrower, any Lender or any
Credit Extension pursuant to this Agreement would be in violation of Regulation U, and upon the
Borrower’s repurchase of shares of its common stock using the proceeds of any Credit Extension, it
will immediately cancel and retire such stock to the extent necessary to comply with Regulation U.



     7.05. Financial Covenants.



     (a) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 2.0:1.0.



     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any
fiscal quarter of the Borrower to be greater than 3.5:1.0.



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. The Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any amount of principal of any
Loan or any L/C Obligation, or (ii) within 5 Business Days after receipt of written notice from the
Administrative Agent that the same shall have become due, interest on any Loan or on any L/C
Obligation, any fee due hereunder, or any other amount payable hereunder or under any other Loan
Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in Article VII; 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 written notice of such
failure has been given to the Borrower by the Administrative Agent; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall prove to



63









 







have been false in any material respect upon the date when made or deemed to have been made or
repeated; or



     (e) Cross-Default. (i) Any event or condition occurs in respect of any Indebtedness
or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) of any Loan
Party having an aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit arrangement) of
more than the Threshold Amount, the effect of which event or condition is to cause, or to permit
the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee
(or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) 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, prior to its stated maturity,
or such Guarantee to become payable or cash collateral in respect thereof to be demanded; 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 any Loan Party is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which any Loan Party is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by such Loan Party as a result thereof is greater
than the Threshold Amount; or



     (f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the
institution of any proceeding 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, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of
its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 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 60 calendar days, or
an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or admits
in writing its inability or fails generally to pay its debts as they become due, 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 45 days after its issue or levy; or



     (h) Judgments. There is entered against any Loan Party a final judgment or order for
the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer does not dispute coverage) and
(i) enforcement proceedings are commenced by any creditor upon such judgment or order, or (ii) such
judgment or order shall remain undischarged for a period of 60 (whether or not consecutive) days
during which execution shall not be effectively stayed, vacated or bonded; 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 the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payments with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



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     (j) Invalidity of Loan Documents. Any provision of any 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 or any other Person 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 Loan Document, or purports to revoke, terminate or rescind any provision of
any Loan Document; or



     (k) Change of Control. There occurs any Change of Control.



     8.02. Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) by notice in writing to the Borrower, declare the commitment 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) by notice in writing to the Borrower, 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
Borrower;



     (c) by notice in writing to the Borrower, require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself and the Lenders all other rights and remedies available to it
and the Lenders under the Loan Documents and the Administrative Agent, if required by applicable
law, shall give written notice thereof to the Borrower;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, 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 Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




     8.03. Application of Funds. 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 on account of the Obligations shall be applied by
the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts payable hereunder (including fees, charges and disbursements of counsel
to the Administrative Agent and amounts payable under Article III) payable to the
Administrative Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable hereunder to
the Lenders and the L/C Issuer (including actual, out-of-pocket fees, charges and disbursements of
counsel to the



65









 







respective Lenders and the L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause Second payable
to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit, to the extent not already Cash Collateralized hereunder; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



     Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all 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.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01. Appointment and Authority. Each of the Lenders and the L/C Issuer 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 are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions, other than as provided in Sections 9.06 and 9.11.



     9.02. Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
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 Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     9.03. Exculpatory Provisions. The Administrative 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 Administrative Agent:



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     (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 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 the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative 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 Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (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 the Administrative 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 negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with 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 (v) 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 Administrative Agent.



     9.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including 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. The Administrative 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 may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received 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. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



     9.05. Delegation of Duties. The Administrative 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



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more sub-agents appointed by the Administrative Agent. The Administrative 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
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.



     9.06. Resignation of Administrative Agent. The Administrative Agent may at any time give
written notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of
any such notice of resignation, the Borrower shall have the right, with the consent of the Required
Lenders (which consent shall not be unreasonably withheld, conditioned or delayed), to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been so appointed by the
Borrower (with the consent of the Required Lenders) and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the 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 (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (b) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender and the L/C Issuer directly, until such time as the Borrower appoints (with
the consent of the Required Lenders) a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent 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). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
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 Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section 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) 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 reasonably satisfactory
to the retiring L/C Issuer and the Borrower to effectively assume the obligations of the retiring
L/C Issuer with respect to such Letters of Credit.



     9.07. Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative 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 Administrative Agent or any other Lender or any of their Related Parties and based on such
documents



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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.



     9.08. No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Joint Arrangers, Syndication Agent or Co-Documentation Agent listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.



     9.09. Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or 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 Borrower) 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 and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.04(i) and (j), 2.10
and 10.04) allowed in such judicial proceeding; and



     (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, assignee, trustee, 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, in the event that 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 2.10 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 or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.



     9.10. Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Guarantor from its
obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder. Upon request by the Administrative Agent at any time, the
Required Lenders will confirm in writing the Administrative Agent’s authority to release any
Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.



     9.11. Reliance by the Borrower. The Borrower shall be entitled to rely upon, and to act or
refrain from acting on the basis of, any written notice, statement, certificate, waiver or other
document or



69









 







instrument delivered by the Administrative Agent to the Borrower so long as the Administrative
Agent is purporting to act in its capacity as the Administrative Agent pursuant to this Agreement
and specifies in such written notice, statement, certificate, waiver or other document or
instrument that any required approvals or consents from the Lenders or Required Lenders, as
applicable, have been obtained pursuant to the terms hereof, and the Borrower shall not be
responsible or liable to any Lender (or to any Participant or Assignee) as a result of any action
or failure to act (including actions or omissions which would otherwise constitute defaults
hereunder) which is based upon such reliance upon the Administrative Agent. The Borrower shall be
entitled to treat the Administrative Agent as the properly authorized Administrative Agent pursuant
to this Agreement until the Borrower shall have received notice of resignation, and the Borrower
shall not be obligated to recognize any successor Administrative Agent until the Borrower shall
have received written notification of the appointment of such successor.



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 the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, 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) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) 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;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document, or change the manner of
computation of any financial ratio (including any change in any applicable defined term) used in
determining the Applicable Rate that would result in a reduction of any interest rate on any Loan
or any fee payable hereunder without the written consent of each Lender directly affected thereby;
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 Borrower to pay
interest or Letter of Credit Fees at the Default Rate;



     (e) change Section 2.14 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;



     (f) change any provision of this Section or 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;



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     (g) except as set forth in Section 9.10, release all or substantially all of the value
of the Guaranty without the written consent of each Lender; or



     (h) amend Section 1.09 or the definition of “Alternative Currency” 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; and (iv) any 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.




10.02. Notices; Effectiveness; Electronic Communication.




     (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 Borrower, the Administrative 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 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, 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 Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.



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     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 Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, 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 Borrower’s or the
Administrative Agent’s 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 the Borrower, 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 Borrower, the Administrative 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 Borrower, the Administrative 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.



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
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 Borrower 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 Borrower shall
indemnify the Administrative 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 Borrower, except to the extent such losses,
costs, expenses and liabilities resulted from the gross negligence or willful misconduct of such
Person.



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     10.03. No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the
Administrative Agent 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 preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.




	     10.04.	 	Expenses; Indemnity; Damage Waiver.





     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the
reasonable fees, charges and disbursements of any counsel for the Administrative Agent, any Lender
or the L/C Issuer), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such reasonable out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, 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 actual and direct losses, claims, damages, liabilities
and related expenses (including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee), incurred by any Indemnitee or awarded against any Indemnitee by any third party or
by the Borrower or any other Loan Party arising out of, in connection with, or by reason 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, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its 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), or
(iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, 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, contributory or sole negligence of the Indemnitee; provided that such
indemnity and hold harmless agreement 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 the
Borrower or any other Loan Party against an Indemnitee for breach of such Indemnitee’s obligations
hereunder or under any other Loan Document, if



73









 







the 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.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), 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 Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) 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 2.13(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no party hereto or any Related Party thereof shall assert, and each such Person
hereby waives, any claim against any other such Person, 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. In the absence of gross negligence or willful
misconduct, no party hereto or any Related Party thereof shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by it
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.



     (e) Payments. All amounts due under this Section shall be payable not later than 20
Business Days after written demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent and the L/C Issuer, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.



     10.05. Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver 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, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative 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 applicable Overnight Rate
from time to time in effect, in the applicable currency of such recovery or payment. The
obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.




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     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 the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder 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 subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (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 Administrative
Agent, the L/C Issuer and the Lenders) 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 and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that




     (i) except 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 an Affiliate of a Lender with respect to a Lender, 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 $5,000,000 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld, conditioned 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) 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 rights in
respect of Bid Loans or Swing Line Loans;




     (iii) any assignment of a Commitment must be approved by the Administrative Agent, the
L/C Issuer and the Swing Line Lender unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and




     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee in the
amount, if any, required as set forth in Schedule 10.06, and the Eligible Assignee,
if it shall not be



75









 






a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (a
copy of which shall promptly be provided to the Borrower).


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, 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 Borrower (at its 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 subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, 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 Borrower, 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 each of the Borrower and the L/C
Issuer at any reasonable time and from time to time upon reasonable prior notice. In addition, at
any time that a request for a consent for a material or substantive change to the Loan Documents is
pending, any Lender may request and receive from the Administrative Agent a copy of the Register.
Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and
an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to in clause
(b)(iv) of this Section and any written consent to such assignment required by this Section,
the Administrative Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s 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 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 Borrower, the Administrative Agent, 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 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.



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Subject to subsection (e) of this Section, the Borrower agrees 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 subsection (b) of
this Section. 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.




     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01, 3.04 or 3.05 than the
applicable Lender would have been entitled to receive with respect to the participation sold to
such Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) as though it were a Lender.



     (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 shall, (i) upon 30 days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to
the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or
Swing Line Lender, the 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
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 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 Base
Rate Committed 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 Base Rate Committed 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 reasonably
satisfactory to Bank of America and the Borrower to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.



77









 





     10.07. Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) solely in connection with this
Agreement and the transactions contemplated hereby, to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made shall 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; provided, however, to the
extent permitted by applicable law, regulation and otherwise, the Borrower is promptly notified in
order that it may seek a protective order or take other appropriate action, (d) to any other party
hereto, (e) to the extent required or deemed advisable by the Administrative Agent, the L/C Issuer
or such Lender, 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 advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower 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 Affiliates is hereby authorized at any time and
from time to time, 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 Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, 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 Borrower may be contingent or unmatured or 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
Affiliates under this Section are in addition to other rights and



78









 




remedies (including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the 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.




     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 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 Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any 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 agreements and
understandings (other than the Fee Letters), oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof 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 shall be effective as delivery of a manually executed counterpart of this Agreement.



     10.11. Survival of Representations and Warranties. 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 Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender 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 shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     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 (a) any Lender requests compensation under Section
3.04, (b) if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, (c) if any
Lender is a Defaulting Lender, (d) if any Lender is acquired by or merges with any other Person
(including any other Lender)



79









 




and such Lender is not the surviving Person, or (e) if any Lender fails to approve an
amendment, consent or waiver hereunder which is approved by the Required Lenders, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 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 Borrower or the assignee 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 and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts); and



     (c) 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 Borrower 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 LAW OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.



     (b) SUBMISSION TO JURISDICTION. PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE FEDERAL COURTS
SITTING THEREIN, 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 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
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 THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE



80









 




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 AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY 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 PARTY HERETO 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.



     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. USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.



     10.17. Time of the Essence. Time is of the essence of the Loan Documents.



     10.18. Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of the Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the Administrative Agent
from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the



81









 




Agreement Currency so purchased is greater than the sum originally due to the Administrative
Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the
Borrower (or to any other Person who may be entitled thereto under applicable law).




     10.19. Collateral. Each of the Lenders represents to the Administrative Agent, each Loan
Party, and each of the other Lenders that it in good faith is not relying upon any “margin stock”
(as defined in Regulation U of the FRB) as collateral in the extension or maintenance of the credit
provided for in this Agreement.



     10.20. Entire Agreement. This Agreement and the other Loan Documents represent the final
agreement among the parties and may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties. There are no unwritten oral agreements among the
parties.




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.



	 	 	 	 	 	 	 
	 	 	MICHAELS STORES, INC.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Lisa K. Klinger
	 	 	 	 	 
	 	 	Name:	 	Lisa K. Klinger
	 	 	Title:	 	Vice President-Treasurer and Investor Relations






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as
	 	 	Administrative Agent
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Mollie S. Canup	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Mollie S. Canup	 	 
	 	 	Title:	 	Vice President	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and
	 	 	Swing Line Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Dan M. Killian	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Dan M. Killian	 	 
	 	 	Title:	 	Senior Vice President	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NA
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Barry Bergman	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Barry Bergman	 	 
	 	 	Title:	 	Managing Director	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	CITIBANK N.A., as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ James Buchanan	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	James Buchanan	 	 
	 	 	Title:	 	Vice President	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Beth Rue	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Beth Rue	 	 
	 	 	Title:	 	AVP	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David C. Oldani	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	David C. Oldani	 	 
	 	 	Title:	 	Vice President	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Marianne T. Meil	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Marianne T. Meil	 	 
	 	 	Title:	 	Vice President	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jennifer A. Taliaferro	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Jennifer A. Taliaferro	 	 
	 	 	Title:	 	Relationship Manager	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Scott DeTraglia	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Scott DeTraglia	 	 
	 	 	Title:	 	Assistant Vice President	 	 






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	 	 	COMPASS BANK
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Key Coker	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Key Coker	 	 
	 	 	Title:	 	Executive Vice President	 	 






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	 	 	THE ROYAL BANK OF SCOTLAND PLC
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Michaela V. Galluzzo	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Michaela V. Galluzzo	 	 
	 	 	Title:	 	Vice President	 	 






Signature Page to Credit Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	SOVEREIGN BANK
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Judith C.E. Kelly	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Judith C.E. Kelly	 	 
	 	 	Title:	 	Senior Vice President	 	 






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	 	 	SUNTRUST BANK
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Daniel S. Komitor	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Daniel S. Komitor	 	 
	 	 	Title:	 	Director	 	 






Signature Page to Credit Agreement