Exhibit (10)A


 


Unlisted CUSIP Number:_____


 


FIVE-YEAR CREDIT AGREEMENT


 


 


dated as of


 


April 12, 2007


 


 


among


 


 


TARGET CORPORATION,


 


THE BANKS LISTED HEREIN,


 


THE CO-DOCUMENTATION AGENTS LISTED HEREIN,


 


BANK OF AMERICA, N.A.,

AS ADMINISTRATIVE AGENT


 


 


JPMORGAN CHASE BANK, N.A.,

AS SYNDICATION AGENT


 


 


BANC OF AMERICA SECURITIES LLC


and


JPMORGAN CHASE BANK, N.A.,


AS JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS


 













 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1.

  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
   

  
	
  Section 1.02

  	
  Accounting Terms and
  Determinations

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2.

  THE CREDITS

  	
   

  
	
   

  	
   

  
	
  Section 2.01

  	
  Commitments to Lend

  	
  13

  
	
  Section 2.02

  	
  Notice of Committed
  Borrowings

  	
  13

  
	
  Section 2.03

  	
  Money Market
  Borrowings

  	
  13

  
	
  Section 2.04

  	
  Notice to Banks;
  Funding of Loans

  	
  17

  
	
  Section 2.05

  	
  Reserved

  	
  18

  
	
  Section 2.06

  	
  Maturity of Loans

  	
  18

  
	
  Section 2.07

  	
  Interest Rates

  	
  18

  
	
  Section 2.08

  	
  Facility Fees

  	
  22

  
	
  Section 2.09

  	
  Optional Termination
  or Reduction of Commitments

  	
  22

  
	
  Section 2.10

  	
  Mandatory Termination
  of Commitments

  	
  22

  
	
  Section 2.11

  	
  Optional Prepayments

  	
  22

  
	
  Section 2.12

  	
  General Provisions as
  to Payments

  	
  23

  
	
  Section 2.13

  	
  Funding Losses

  	
  24

  
	
  Section 2.14

  	
  Computation of
  Interest and Fees

  	
  24

  
	
  Section 2.15

  	
  Withholding Tax
  Exemption

  	
  24

  
	
  Section 2.16

  	
  Change of Control

  	
  24

  
	
  Section 2.17

  	
  Increase in Combined
  Commitments

  	
  25

  
	
  Section 2.18

  	
  Extension of
  Termination Date

  	
  26

  
	
  Section 2.19

  	
  Evidence of Debt

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3.

  CONDITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Effectiveness

  	
  28

  
	
  Section 3.02

  	
  Borrowings

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4.

  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Corporate Existence
  and Power

  	
  30

  



 


i













 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.02

  	
  Corporate and
  Governmental Authorization; No Contravention

  	
  30

  
	
  Section 4.03

  	
  Binding Effect

  	
  30

  
	
  Section 4.04

  	
  Financial Information

  	
  31

  
	
  Section 4.05

  	
  Litigation

  	
  31

  
	
  Section 4.06

  	
  Compliance with ERISA

  	
  31

  
	
  Section 4.07

  	
  Payment of Taxes

  	
  31

  
	
  Section 4.08

  	
  Full Disclosure

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5.

  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Information

  	
  32

  
	
  Section 5.02

  	
  Maintenance of
  Property

  	
  34

  
	
  Section 5.03

  	
  Conduct of Business
  and Maintenance of Existence

  	
  34

  
	
  Section 5.04

  	
  Compliance with Laws

  	
  34

  
	
  Section 5.05

  	
  Consolidations,
  Mergers and Sale of Assets

  	
  35

  
	
  Section 5.06

  	
  Dividends

  	
  35

  
	
  Section 5.07

  	
  Negative Pledge

  	
  35

  
	
  Section 5.08

  	
  Leverage Ratio

  	
  36

  
	
  Section 5.09

  	
  Use of Proceeds

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6.

  DEFAULTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
  36

  
	
  Section 6.02

  	
  Notice of Default

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7.

  THE AGENT, THE SENIOR MANAGING AGENTS, THE MANAGING AGENTS, THE CO-

  AGENTS, THE CO-DOCUMENTATION AGENTS AND THE SYNDICATION AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Appointment and
  Authorization

  	
  38

  
	
  Section 7.02

  	
  Agent and Affiliates

  	
  38

  
	
  Section 7.03

  	
  Action by Agent

  	
  38

  
	
  Section 7.04

  	
  Consultation with
  Experts

  	
  38

  
	
  Section 7.05

  	
  Liability of Agent

  	
  38

  
	
  Section 7.06

  	
  Indemnification

  	
  39

  
	
  Section 7.07

  	
  Credit Decision

  	
  39

  



 


ii













 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.08

  	
  Successor Agent

  	
  39

  
	
  Section 7.09

  	
  Agent’s Fee

  	
  40

  
	
  Section 7.10

  	
  Senior Managing
  Agents, Managing Agents, Co-Agents, Co-Documentation Agents, and Syndication
  Agent

  	
  40

  
	
  Section 7.11

  	
  Defaults

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8.

  CHANGE IN CIRCUMSTANCES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Basis for Determining
  Interest Rate Inadequate or Unfair

  	
  40

  
	
  Section 8.02

  	
  Illegality

  	
  41

  
	
  Section 8.03

  	
  Increased Cost and
  Reduced Return

  	
  41

  
	
  Section 8.04

  	
  Base Rate Loans
  Substituted for Affected Fixed Rate Loans

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9.

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Notices

  	
  43

  
	
  Section 9.02

  	
  No Waivers

  	
  44

  
	
  Section 9.03

  	
  Expenses; Documentary
  Taxes; Indemnification

  	
  44

  
	
  Section 9.04

  	
  Sharing of Set-Off

  	
  45

  
	
  Section 9.05

  	
  Amendments and Waivers

  	
  45

  
	
  Section 9.06

  	
  Successors and Assigns

  	
  45

  
	
  Section
  9.07

  	
  Collateral

  	
  48

  
	
  Section
  9.08

  	
  Replacement
  of Banks

  	
  48

  
	
  Section
  9.09

  	
  Governing
  Law; Submission to Jurisdiction

  	
  49

  
	
  Section
  9.10

  	
  Counterparts;
  Integration

  	
  50

  
	
  Section
  9.11

  	
  Confidentiality

  	
  50

  
	
  Section
  9.12

  	
  USA
  PATRIOT Act Notice

  	
  50

  



 


iii













 


	
  SCHEDULE
  I:

  	
  Senior
  Managing Agents and Managing Agents

  	
  S-I

  
	
  SCHEDULE
  II:

  	
  Co-Agents

  	
  S-II

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  A

  	
  Note

  	
  A-1

  
	
  EXHIBIT
  B

  	
  Form of
  Money Market Quote Request

  	
  B-1

  
	
  EXHIBIT
  C

  	
  Form of
  Invitation for Money Market Quotes

  	
  C-1

  
	
  EXHIBIT
  D

  	
  Form of
  Money Market Quote

  	
  D-1

  
	
  EXHIBIT
  E

  	
  Form of
  Commitment Increase Agreement

  	
  E-1

  
	
  EXHIBIT
  F

  	
  Form of
  Added Bank Agreement

  	
  F-1

  
	
  EXHIBIT
  G

  	
  Opinion
  of Counsel for the Borrower

  	
  G-1

  
	
  EXHIBIT
  H

  	
  Opinion
  of Helms Mulliss & Wicker, PLLC, Special Counsel for the Agent

  	
  H-1

  
	
  EXHIBIT
  I

  	
  Assignment
  and Assumption Agreement

  	
  I-1

  
	
  EXHIBIT
  J

  	
  Form of
  Borrowing Notice

  	
  J-1

  



 


iv













 


FIVE-YEAR CREDIT AGREEMENT


 


THIS FIVE-YEAR CREDIT AGREEMENT,
dated as of April 12, 2007, is among TARGET CORPORATION,
a Minnesota corporation, the BANKS listed on
the signature pages hereof, the SENIOR MANAGING AGENTS,
MANAGING AGENTS, CO-AGENTS, CO-DOCUMENTATION AGENTS and SYNDICATION AGENT
listed herein and BANK OF AMERICA, N.A.,
as Administrative Agent.


 


The Borrower has requested that the Banks
provide a revolving credit facility, and the Banks 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 1.

DEFINITIONS


 


Section 1.01                                Definitions.
The following terms, as used herein, have the following meanings:


 


“Absolute Rate Auction”
means a solicitation of Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.


 


“Accounts Receivable”
means those amounts due to a Person that would be categorized as “accounts
receivable” in accordance with generally accepted accounting principles.


 


“Added Bank”
has the meaning set forth in Section 2.17(a).


 


“Additional Commitment Bank”
has the meaning set forth in Section 2.18(d)


 


“Adjusted CD Rate”
has the meaning set forth in Section 2.07(b).


 


“Adjusted London Interbank
Offered Rate” has the meaning set forth in Section 2.07(c).


 


“Administrative
Questionnaire” means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.


 


“Agent”
means Bank of America, N.A. in its capacity as administrative agent for the
Banks hereunder, and its successors in such capacity.


 


“Agreement”
means this Five-Year Credit Agreement as the same may be amended or restated
from time to time in accordance with the terms hereof.


 


“Anniversary Date”
has the meaning set forth in Section 2.18(a).


 


“Applicable Lending Office”
means, with respect to any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office, (ii) in the case of its Euro-


 













 


Dollar Loans,
its Euro-Dollar Lending Office and (iii) in the case of its Money Market Loans,
its Money Market Lending Office.


 


“Applicable Margin”
has the meaning set forth in Section 2.07(h).


 


“Approved Fund”
means any Person (other than a natural Person) that (i) is or will be engaged
in making, purchasing, holding or otherwise investing in commercial Loans and
similar extensions of credit in the ordinary course of its business and (ii) is
administered or managed by (x) a Bank, (y) an affiliate of a Bank or (z) an entity
or an affiliate of an entity that administers or manages a Bank.


 


“Arrangers”
means Banc of America Securities LLC and J.P. Morgan Securities Inc., each in
its capacity as a joint lead arranger hereunder, and their successors in such
capacity.


 


“Assessment Rate”
has the meaning set forth in Section 2.07(b).


 


“Assignee”
has the meaning set forth in Section 9.06(c).


 


“Assignment and Assumption
Agreement” has the meaning set forth in Section 9.06(c).


 


“Bank” means
each bank or other financial institution listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(c), and
their respective successors.


 


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


 


“Base Rate”
means, for any day, a rate per annum equal to the higher of (i) the Prime Rate
for such day and (ii) the sum of 1⁄2 of 1% plus the Federal Funds Rate for such
day. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such change in
the Prime Rate or Federal Funds Rate.


 


“Base Rate Loan”
means a Committed Loan to be made by a Bank as a Base Rate Loan in accordance
with the applicable Notice of Committed Borrowing or pursuant to Article 8.


 


“Benefited Bank”
has the meaning set forth in Section 9.04.


 


“Borrower”
means Target Corporation, a Minnesota corporation, and its successors.


 


“Borrower’s 2006 Form 10-K”
means the Borrower’s annual report on Form 10-K for the fiscal year ended
February 3, 2007, as filed with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934, as amended.


 


“Borrowing”
means the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Article 2 on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (e.g., a “Base
Rate Borrowing” is a Borrowing comprised of Base Rate Loans, a “Euro-Dollar Borrowing” is a
Borrowing comprised of Euro-Dollar Loans, a “CD
Borrowing” is a Borrowing comprised of CD Loans, and a “Fixed Rate Borrowing” is a Borrowing


 


2













 


comprised of
Fixed Rate Loans) or by reference to the provisions of Article 2 under
which participation therein is determined (i.e., a “Committed
Borrowing” is a Borrowing under Section 2.01 in which all
Banks participate in proportion to their Commitments, while a “Money Market Borrowing” is a
Borrowing under Section 2.03 in which the Bank participants are
determined on the basis of their bids in accordance therewith).


 


“Capital Lease”
means a lease which gives rise to Capital Lease Obligations.


 


“Capital Lease Obligations”
means all obligations of a Person as lessee which are capitalized in accordance
with generally accepted accounting principles.


 


“CD Base Rate”
has the meaning set forth in Section 2.07(b).


 


“CD Loan”
means a Committed Loan to be made by a Bank as a CD Loan in accordance with the
applicable Notice of Committed Borrowing.


 


“Co-Agents”
means the banks listed on Schedule II hereto, in their capacity as
co-agents of the credit facility hereunder.


 


“Co-Documentation Agents”
means the banks listed on the signature pages hereto, in their capacity as
co-documentation agents of the credit facility hereunder.


 


“Commitment”
means, with respect to each Bank, the amount set forth opposite the name of
such Bank on the signature pages hereof or pursuant to any Assignment and
Assumption Agreement, as such amount may be reduced from time to time pursuant
to Section 2.09 or 2.18, or may be increased at any time pursuant
to Section 2.17, the aggregate amount of which at the Effective Date is
$2,000,000,000.


 


“Committed  Loan” means a loan made by a Bank
pursuant to Section 2.01.


 


“Consolidated
Rental  Expense”
means, for any period, the aggregate amount, determined on a consolidated
basis, of rental expense of the Borrower and its Consolidated Subsidiaries
accrued during such period, but excluding any unusual non-cash adjustments to
rental expenses of the Borrower related to prior periods.


 


“Consolidated
Subsidiary” means, at any date, any
Subsidiary or other entity the accounts of which would be consolidated with
those of the Borrower in its consolidated financial statements if such
statements were prepared as of such date.


 


“Consolidated
Tangible  Net
Worth” means, at any date, the
consolidated stockholders’ equity of the Borrower and its Consolidated
Subsidiaries less their consolidated Intangible Assets, all determined as of
such date. For purposes of this definition “Intangible Assets” means the amount
(to the extent reflected in determining such consolidated stockholders’ equity)
of (i) all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business made within
twelve months after the acquisition of such business) subsequent to February 3,
2007 in the book value of any asset owned by the Borrower or a Consolidated
Subsidiary, (ii) all Investments in unconsolidated Subsidiaries and all equity
investments in Persons which are not Subsidiaries and (iii) all unamortized
debt discount and


 


3













 


expense,
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry-forwards, copyrights,
organization or developmental expenses and other intangible assets.


 


“Convertible Preferred
Stock” means the Series B ESOP Convertible Preferred Stock, $.01
par value, of the Borrower.


 


“Debt” of
any Person means at any date, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (iv) all
Capital Lease Obligations of such Person, (v) all debt secured by a Lien on any
asset of such Person, whether or not such debt is otherwise an obligation of
such Person, and (vi) all debt of others Guaranteed by such Person.


 


“Debt Rating”
means a rating of the Borrower’s long-term debt which is not secured or
supported by a guarantee, letter of credit or other form of credit enhancement.
If a Debt Rating by a Rating Agency is required to be at or above a specified
level and such Rating Agency shall have changed its system of classifications
after the date hereof, the requirement will be met if the Debt Rating by such
Rating Agency is at or above the new rating which most closely corresponds to
the specified level under the old rating system.


 


“Default”
means any condition or event which constitutes an Event of Default or which
with the giving of notice or lapse of time or both would, unless cured or
waived, become an Event of Default.


 


“Defaulting Bank”
means any Bank that (i) has failed to fund any portion of the Loans required to
be funded by it hereunder within one Domestic Business Day of the date required
to be funded by it hereunder, (ii) has otherwise failed to pay over to the
Agent or any other Bank any other amount required to be paid by it hereunder
within one Domestic Business Day of the date when due, unless the subject of a
good faith dispute, or (iii) has been deemed insolvent or become the subject of
a bankruptcy or insolvency proceeding.


 


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


 


“Domestic Business Day”
means any day except a Saturday, Sunday or other day on which commercial banks
in New York City are authorized by law to close.


 


“Domestic Lending Office”
means, as to each Bank, its office located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Domestic Lending Office) or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to the Borrower and the
Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.


 


“Domestic Loans”
means CD Loans or Base Rate Loans or both.


 


4













 


“Domestic Reserve
Percentage” has the meaning set forth in Section 2.07(b).


 


“Effective Date”
means the date this Agreement becomes effective in accordance with Section
3.01.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, or any successor statute.


 


“ERISA Affiliate”
means, with respect to the Borrower or any of its Subsidiaries, at any time,
each trade or business (whether or not incorporated) that would, at the time,
be treated together with the Borrower or any of its Subsidiaries as a single
employer under Section 4001 of ERISA or Section 414(b), (c), (f), (m) or (o) of
the Internal Revenue Code.


 


“Euro-Dollar Business Day”
means any Domestic Business Day on which commercial banks are open for
international business (including dealings in dollar deposits) in London.


 


“Euro-Dollar Lending Office”
means, as to each Bank, its office, branch or affiliate located at its address
set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Dollar Lending Office) or such other
office, branch or affiliate of such Bank as it may hereafter designate as its
Euro-Dollar Lending Office by notice to the Borrower and the Agent.


 


“Euro-Dollar Loan”
means a Committed Loan to be made by a Bank as a Euro-Dollar Loan in accordance
with the applicable Notice of Committed Borrowing.


 


“Euro-Dollar Reserve
Percentage” has the meaning set forth in Section 2.07(c).


 


“Event of Default”
has the meaning set forth in Section 6.01.


 


“Exchange Act”
means, at any time, the Securities Exchange Act of 1934, as amended from time
to time, and any successor statute, and the rules and regulations promulgated
thereunder.


 


“Existing Five-Year
Agreement” means the Five-Year Credit Agreement dated as of June
9, 2005, among the Borrower, the banks listed therein, the senior managing
agents, managing agents, co-agents, co-documentation agents and co-syndication
agents listed therein, and Bank of America, N.A., as administrative agent, as
the same may be amended or restated from time to time.


 


“Existing Termination Date”
has the meaning set forth in Section 2.18(a).


 


“Extending Bank”
has the meaning set forth in Section 2.18(e).


 


“Federal Funds Rate”
means, for any day, the rate per annum (rounded upward, if necessary, to the
nearest 1/100th of 1%) 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 Domestic Business Day next succeeding such day, provided that (i) if such day is not a Domestic


 


5













 


Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Domestic Business Day as so published on the next succeeding
Domestic Business Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to the Agent (in its individual capacity) on such day
on such transactions as determined by the Agent.


 


“Fixed Rate Loans”
means CD Loans or Euro-Dollar Loans or Money Market Loans (excluding Money
Market LIBOR Loans bearing interest at the Base Rate pursuant to Section
8.01(a)) or any combination of the foregoing.


 


“Group”
means the Borrower and its Subsidiaries, taken as a whole.


 


“Guarantee”
by any Person means any obligation, contingent or otherwise, of such Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of such Debt or
other obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt or other obligation of the payment 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 collection or deposit in the ordinary course of business. The
term “Guarantee” used as a verb has a corresponding meaning.


 


“Income Taxes”
means, for any period, the consolidated provision for income taxes of the
Borrower and its Consolidated Subsidiaries accrued for such period.


 


“Increased Commitment Date”
has the meaning set forth in Section 2.17(b).


 


“Increasing Bank”
has the meaning set forth in Section 2.17(a).


 


“Interest Period”
means: (i) with respect to each Euro-Dollar Borrowing, the period commencing on
the date of such Borrowing and ending one, two, three or six months thereafter,
as the Borrower may elect in the applicable Notice of Borrowing; provided that:


 


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


 


(b)                                 any Interest Period
which begins on the last Euro-Dollar 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, subject to clause (c) below,
end on the last Euro-Dollar Business Day of a calendar month; and


 


6













 


(c)                                  any Interest Period
commencing prior to the Termination Date which would otherwise end after the
Termination Date shall end on the Termination Date;


 


(ii)                                  with respect to each
CD Borrowing, the period commencing on the date of such Borrowing and ending
30, 60, 90 or 180 days thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:


 


(a)                                  any Interest Period
(other than an Interest Period determined pursuant to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and


 


(b)                                 any Interest Period
commencing prior to the Termination Date which would otherwise end after the
Termination Date shall end on the Termination Date;


 


(iii)                               with respect to each
Base Rate Borrowing, the period commencing on the date of such Borrowing and
ending 30 days thereafter; provided that:


 


(a)                                  any Interest Period
(other than an Interest Period determined pursuant to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and


 


(b)                                 any Interest Period
commencing prior to the Termination Date which would otherwise end after the
Termination Date shall end on the Termination Date;


 


(iv)                              with respect to each
Money Market LIBOR Borrowing, the period commencing on the date of such
Borrowing and ending such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.03; provided
that:


 


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


 


(b)                                 any Interest Period
which begins on the last Euro-Dollar 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, subject to clause (c) below,
end on the last Euro-Dollar Business Day of a calendar month; and


 


(c)                                  any Interest Period
which would otherwise end after the Termination Date applicable to the Bank
holding a related Money Market LIBOR Loan shall end on the respective
Termination Date for such Bank; and


 


7













 


(v)                                 with respect to each
Money Market Absolute Rate Borrowing, the period commencing on the date of such
Borrowing and ending such number of days thereafter (but not less than 14 days)
as the Borrower may elect in accordance with Section 2.03; provided that:


 


(a)                                  any Interest Period
which would otherwise end on a day which is not a Domestic Business Day shall
be extended to the next succeeding Domestic Business Day; and


 


(b)                                 any Interest Period
which would otherwise end after the Termination Date applicable to the Bank
holding a related Money Market Absolute Rate Loan shall end on the respective
Termination Date for such Bank.


 


“Internal Control Event”
means a determination by management of the Borrower, or by the Borrower’s
Registered Public Accounting Firm in connection with the Borrower’s annual
evaluation of the effectiveness of internal control over financial reporting,
that a material weakness in internal controls over financial reporting, as
described in PCAOB Auditing Standard No. 2, exists in the Borrower’s internal
control over financial reporting.


 


“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended from time to time, or any
successor statute.


 


“Investment”
means any investment in any Person, whether by means of share purchase, capital
contribution, loan, time deposit or otherwise.


 


“Level I Status”
exists at any date if at such date, the Borrower is at Level I in the chart
appearing in the definition of Applicable Margin as a result of its Debt
Ratings as determined in accordance with such definition.


 


“Level II Status”
exists at any date if at such date the Borrower is at Level II in the chart
appearing in the definition of Applicable Margin as a result of its Debt
Ratings as determined in accordance with such definition.


 


“Level III Status”
exists at any date if at such date the Borrower is at Level III in the chart
appearing in the definition of Applicable Margin as a result of its Debt
Ratings as determined in accordance with such definition.


 


“Level IV Status”
exists at any date if at such date the Borrower is at Level IV in the chart
appearing in the definition of Applicable Margin as a result of its Debt
Ratings as determined in accordance with such definition.


 


“Level V Status”
exists at any date if, at such date the Borrower is at Level V in the chart
appearing in the definition of Applicable Margin as a result of its Debt
Ratings as determined in accordance with such definition.


 


“LIBOR Auction”
means a solicitation of Money Market Quotes setting forth Money Market Margins
based on the London Interbank Offered Rate pursuant to Section 2.03.


 


8













 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a security interest, in
respect of such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset, but excluding any asset held under a bona fide
consignment arrangement.


 


“Loan” means
a Domestic Loan or a Euro-Dollar Loan or a Money Market Loan and “Loans” means
Domestic Loans or Euro-Dollar Loans or Money Market Loans or any combination of
the foregoing.


 


“London Interbank Offered
Rate” has the meaning set forth in Section 2.07(c).


 


“Managing Agents”
means the banks listed on Schedule I hereto, in their capacity as
managing agents of the credit facility hereunder.


 


“Material Debt”
means Debt (other than Debt incurred hereunder) of the Borrower and/or one or
more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal amount exceeding $100,000,000.


 


“Money Market Absolute Rate”
has the meaning set forth in Section 2.03(d).


 


“Money Market Absolute Rate
Loan” means a loan to be made by a Bank pursuant to an Absolute
Rate Auction.


 


“Money Market Lending
Office” means, as to each Bank, its Domestic Lending Office or
such other office, branch or affiliate of such Bank as it may hereafter designate
as its Money Market Lending Office by notice to the Borrower and the Agent; provided that any Bank may from time to time by notice to
the Borrower and the Agent designate separate Money Market Lending Offices for
its Money Market LIBOR Loans, on the one hand, and its Money Market Absolute
Rate Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.


 


“Money Market LIBOR Loan”
means a loan to be made by a Bank pursuant to a LIBOR Auction (including such a
loan bearing interest at the Base Rate pursuant to Section 8.01(a)).


 


“Money Market Loan”
means a Money Market LIBOR Loan or a Money Market Absolute Rate Loan.


 


“Money Market Margin”
has the meaning set forth in Section 2.03(d).


 


“Money Market Quote”
means an offer by a Bank to make a Money Market Loan in accordance with Section
2.03.


 


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


 


9













 


“Multiemployer Plan”
means, at any time, a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which contributions are or have been made by the Borrower or any of
its Subsidiaries or any ERISA Affiliate of the Borrower or any of its
Subsidiaries.


 


“Non-Extending Bank”
has the meaning set forth in Section 2.18(b).


 


“Notes”
means promissory notes of the Borrower, substantially in the form of Exhibit
A hereto, evidencing the obligation of the Borrower to repay the Loans and “Note”
means any one of such promissory notes issued hereunder.


 


“Notice Date”
has the meaning set forth in Section 2.18(a).


 


“Notice of Borrowing”
means a Notice of Committed Borrowing (as defined in Section 2.02) or a
Notice of Money Market Borrowing (as defined in Section 2.03(f)).


 


“Parent”
means, with respect to any Bank, any Person controlling such Bank.


 


“Participant”
has the meaning set forth in Section 9.06(b).


 


“PBGC” means
the Pension Benefit Guaranty Corporation or any entity succeeding to any or all
of its functions under ERISA.


 


“Person”
means an individual, a corporation, a partnership, an association, a trust or
any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.


 


“Plan” means
any employee benefit plan which (i) is or has been maintained by the Borrower
or any of its Subsidiaries or any ERISA Affiliate of any of them, or to which
contributions by any such Person are or have been required to be made, (ii) is
subject to the provisions of Title IV of ERISA and (iii) is not a Multiemployer
Plan.


 


“Plan Event”
means (i) the provision of a notice of intent to terminate any Plan under
Section 4041 of ERISA, (ii) the receipt of any notice by any Plan that the PBGC
intends to apply for the appointment of a trustee to administer any Plan, (iii)
the termination of any Plan, (iv) the withdrawal of the Borrower, any of its
Subsidiaries or any ERISA Affiliate of any of them from any Plan described in
Section 4063 of ERISA that may constitute grounds for the imposition of any
liability or lien on the assets of the Borrower or any of its Subsidiaries in
excess of $100,000,000, (v) the complete or partial withdrawal of the Borrower
or any of its Subsidiaries or any ERISA Affiliate of any of them from any
Multiemployer Plan that may constitute grounds for the imposition of any
liability or lien on the assets of the Borrower or any of its Subsidiaries in
excess of $100,000,000, (vi) any other event or condition that would constitute
grounds under Section 4042 of ERISA for the termination of or for the
appointment of a trustee to administer, any Plan and (vii) any other event or
condition which under ERISA or the Internal Revenue Code may constitute grounds
for the imposition of any liability or lien on the assets of the Borrower or
any of its Subsidiaries in excess of $100,000,000 in respect of any Plan or
Multiemployer Plan.


 


10













 


“Prime Rate”
means the rate of interest publicly announced from time to time by Bank of
America, N.A. as its prime rate.


 


“Rating Agency”
means S&P or Moody’s.


 


“Reference Banks”
means Bank of America, N.A., JPMorgan Chase Bank, N.A. and Citicorp USA, Inc.,
or the successors thereof, and “Reference Bank” means any one of such Reference
Banks.


 


“Refunding Borrowing”
means a Committed Borrowing which, after application of the proceeds thereof,
results in no net increase in the outstanding principal amount of Committed
Loans made by any Bank.


 


“Registered Public
Accounting Firm” has the meaning specified in the federal
securities laws.


 


“Regulation U”
means Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time.


 


“Request Period”
has the meaning set forth in Section 2.18(a).


 


“Required Banks”
means at any time Banks having more than 50% of the aggregate amount of the
Commitments or, if the Commitments shall have been terminated, Banks holding
more than 50% of the aggregate unpaid principal amount of the Loans (excluding
Money Market Loans).


 


“Response Deadline”
has the meaning set forth in Section 2.18(b).


 


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


 


“Senior Managing Agents”
means the banks listed on Schedule I hereto, in their capacity as senior
managing agents of the credit facility hereunder.


 


“Significant Subsidiary”
means a “Significant Subsidiary” of the Borrower, as such term is defined in
Regulation S-X promulgated by the Securities and Exchange Commission.


 


“Status”
means, at any date, whichever of Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status exists at such date.


 


“Subsidiary”
means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by the Borrower.


 


“Syndication Agent”
means JPMorgan Chase Bank, N.A. in its capacity as syndication agent of the
credit facility hereunder.


 


11













 


“Termination Date”
means the later of (a) April 12, 2012 or (b) if the term of this Agreement is
extended pursuant to Section 2.18, such extended termination date as
determined pursuant to such Section; provided, however, that, in each case, if such date is not a Domestic
Business Day, the next preceding Domestic Business Day; provided
further that with respect to any
Non-Extending Bank, the Termination Date of such Non-Extending Bank’s Commitment
shall be the Existing Termination Date notwithstanding the extension of
Commitments by any other Bank pursuant to Section 2.18.


 


“Total Capitalization”
means, at any date, the sum (without duplication) of (i) the consolidated
stockholders’ equity of the Borrower and its Consolidated Subsidiaries plus
(ii) the net amount of Convertible Preferred Stock as reflected in the
consolidated statements of financial position of the Borrower and its
Consolidated Subsidiaries plus (iii) Total Finance Liabilities, all determined
as of such date.


 


“Total Finance Liabilities”
means, at any date, the sum of (i) all Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date,
plus (ii) an amount equal to (a) the Consolidated Rental Expense for the period
of four consecutive fiscal quarters of the Borrower ending on such date times
(b) eight.


 


“Usage”
means, at any date prior to the Termination Date, the percentage equivalent of
a fraction (i) the numerator of which is the aggregate outstanding principal
amount of the Loans at such date, after giving effect to any borrowing or
payment on such date, and (ii) the denominator of which is the aggregate amount
of the Commitments at such date. If for any reason any Loans remain outstanding
after termination of the Commitments, the Usage for each date on or after the
date of such termination shall be deemed to be greater than 50%.


 


“Voting Stock”
means capital stock of any class or classes (however designated) having voting
power for the election of directors of the Borrower, other than stock having
such power only by reason of the happening of a contingency.


 


Section 1.02                                Accounting
Terms and Determinations.  Unless
otherwise specified herein, all accounting terms used herein shall be interpreted,
all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance
with generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the Borrower’s
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks (provided that
for the purpose of calculating covenant compliance under Article 5, the
effect of SFAS No. 133 shall not be applied); provided
that, if the Borrower notifies the Agent that the Borrower wishes to amend any
covenant in Article 5 to eliminate the effect of any change in generally
accepted accounting principles on the operation of such covenant (or if the
Agent notifies the Borrower that the Required Banks wish to amend Article 5
for such purpose), then the Borrower’s compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in effect
for purposes of this Agreement immediately before the relevant change in
generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Banks.


 


12













 


ARTICLE 2.

THE CREDITS


 


Section 2.01                                Commitments
to Lend. Each Bank severally agrees, on the terms and conditions set forth
in this Agreement, to make loans to the Borrower pursuant to this Section from
time to time prior to the Termination Date in amounts such that the aggregate
principal amount of Committed Loans by such Bank at any one time outstanding
shall not exceed the amount of its Commitment. Each Borrowing under this
Section shall be in an aggregate principal amount of $25,000,000 or any larger
multiple of $5,000,000 (except that any such Borrowing may be in the aggregate
amount available in accordance with Section 3.02(b)) and shall be made
from the several Banks ratably in proportion to their respective Commitments. Within
the foregoing limits, the Borrower may borrow under this Section, repay, or to
the extent permitted by Section 2.11, prepay Loans and reborrow at any
time prior to the Termination Date under this Section.


 


Section 2.02                                Notice
of Committed Borrowings. The Borrower shall give the Agent notice (a “Notice of Committed Borrowing”) not
later than 11:00 A.M. (New York City time) on (x) the date of each Base Rate
Borrowing, (y) the second Domestic Business Day before each CD Borrowing and
(z) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:


 


(a)                                  the
date of such Borrowing, which shall be a Domestic Business Day in the case of a
Domestic Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing;


 


(b)                                 the
aggregate amount of such Borrowing;


 


(c)                                  whether
the Loans comprising such Borrowing are to be CD Loans, Base Rate Loans or
Euro-Dollar Loans; and


 


(d)                                 in
the case of a Fixed Rate Borrowing, the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of Interest
Period.


 


Section 2.03                                Money
Market Borrowings.


 


(a)                                  The
Money Market Option. In addition to Committed Borrowings pursuant to Section
2.01, the Borrower may, as set forth in this Section, request the Banks to
make offers to make, prior to the Termination Date only, Money Market Loans to
the Borrower. The Banks may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers
in the manner set forth in this Section. No Money Market Loan shall be deemed
to be a use or reduction of the Commitment of any Bank, including the Bank
making such Money Market Loan. Notwithstanding the foregoing, while any Money
Market Loan is outstanding, the availability of Committed Loans under this
Agreement shall be reduced dollar-for-dollar by an amount equal to the
outstanding principal amount of such Money Market Loan.


 


(b)                                 Money
Market Quote Request. When the Borrower wishes to request offers to make
Money Market Loans under this Section, it shall transmit to the Agent by


 


13













 


facsimile
transmission a Money Market Quote Request substantially in the form of Exhibit
B hereto so as to be received no later than 11:00 A.M. (New York City time)
on (x) the fifth Euro-Dollar Business Day prior to the date of Borrowing
proposed therein, in the case of a LIBOR Auction, or (y) the Domestic Business
Day next preceding the date of Borrowing proposed therein, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective) specifying:


 


(i)                                     the
proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the
case of a LIBOR Auction or a Domestic Business Day in the case of an Absolute
Rate Auction;


 


(ii)                                  the
aggregate amount of such Borrowing, which shall be $25,000,000 or a larger
multiple of $5,000,000 and which shall not exceed the aggregate amount
available in accordance with Section 3.02(b);


 


(iii)                               the duration of the
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period; and


 


(iv)                              whether
the Money Market Quotes requested are to set forth a Money Market Margin or a
Money Market Absolute Rate.


 


The Borrower may request offers to make Money Market Loans for more
than one Interest Period in a single Money Market Quote Request. No Money
Market Quote Request shall be given within five Euro-Dollar Business Days (or
such other number of days as the Borrower and the Agent may agree) of any other
Money Market Quote Request.


 


(c)                                  Invitation
for Money Market Quotes. Promptly upon receipt of a Money Market Quote
Request, the Agent shall send to the Banks by facsimile transmission an Invitation
for Money Market Quotes substantially in the form of Exhibit C
hereto, which shall constitute an invitation by the Borrower to each Bank to
submit Money Market Quotes offering to make the Money Market Loans to which
such Money Market Quote Request relates in accordance with this Section.


 


(d)                                 Submission
and Contents of Money Market Quotes.


 


(i)                                     Each
Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d)
and must be submitted to the Agent by facsimile transmission at its offices
specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:15 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower


 


14













 


and
the Agent shall have mutually agreed and shall have notified to the Banks not
later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective); provided that Money Market Quotes submitted by the Agent (or
any affiliate of the Agent) in the capacity of a Bank may be submitted, and may
only be submitted, if the Agent or such affiliate notifies the Borrower of the
terms of the offer or offers contained therein not later than (x) 1:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 10:00 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction. Subject to Articles 3 and 6, any Money
Market Quote so made shall be irrevocable except with the written consent of
the Agent given on the instructions of the Borrower.


 


(ii)                                  Each
Money Market Quote shall be in substantially the form of Exhibit D
hereto and shall in any case specify:


 


(A)                              the
proposed date of Borrowing;


 


(B)                                the
principal amount of the Money Market Loan for which each such offer is being
made, which principal amount (w) may be greater than or less than the
Commitment of the quoting Bank, (x) must be $5,000,000 or a larger multiple of
$l,000,000, (y) may not exceed the principal amount of Money Market Loans for
which offers were requested and (z) may be subject to an aggregate limitation
as to the principal amount of Money Market Loans for which offers being made by
such quoting Bank may be accepted;


 


(C)                                in
the case of a LIBOR Auction, the margin above or below the applicable London
Interbank Offered Rate (the “Money Market Margin”)
offered for each such Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or subtracted from such base
rate;


 


(D)                               in
the case of an Absolute Rate Auction, the rate of interest per annum (specified
to the nearest 1/10,000th of 1%) (the “Money Market Absolute Rate”)
offered for each such Money Market Loan; and


 


(E)                                 the
identity of the quoting Bank.


 


A Money Market Quote may set forth up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.


 


(iii)                               Any Money Market Quote
shall be disregarded if it:


 


(A)                              is
not substantially in conformity with Exhibit D hereto or does not
specify all of the information required by subsection (d)(ii);


 


15













 


(B)                                contains
qualifying, conditional or similar language;


 


(C)                                proposes
terms other than or in addition to those set forth in the applicable Invitation
for Money Market Quotes; or


 


(D)                               arrives
after the time set forth in subsection (d)(i).


 


(e)                                  Notice
to Borrower. The Agent shall promptly notify the Borrower of the terms (i)
of any Money Market Quote submitted by a Bank that is in accordance with
subsection (d) and (ii) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote submitted by such
Bank with respect to the same Money Market Quote Request. Any such subsequent
Money Market Quote shall be disregarded by the Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent’s notice to the Borrower shall specify (A)
the aggregate principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money Market Quote
Request, (B) the respective principal amounts and Money Market Margins or Money
Market Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.


 


(f)                                    Acceptance
and Notice by Borrower. Not later than 11:00 A.M. (New York City time) on
(x) the third Euro-Dollar Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction, or (y) the proposed date of Borrowing, in the
case of an Absolute Rate Auction (or, in either case, such other time or date
as the Borrower and the Agent shall have mutually agreed and shall have notified
to the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e).
In the case of acceptance, such notice (a “Notice of Money Market
Borrowing”) shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept any
Money Market Quote in whole or in part; provided that:


 


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


 


(ii)                                  the
principal amount of each Money Market Borrowing must be $25,000,000 or a larger
multiple of $5,000,000;


 


(iii)                               acceptance of offers may
only be made on the basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be; and


 


16













 


(iv)                              the
Borrower may not accept any offer that is described in subsection (d)(iii)
or that otherwise fails to comply with the requirements of this Agreement.


 


(g)                                 Allocation
by Agent. If offers are made by two or more Banks with the same Money Market
Margins or Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall be allocated by the
Agent among such Banks as nearly as possible (in multiples of $1,000,000, as
the Agent may deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.


 


Section 2.04                                Notice
to Banks; Funding of Loans.


 


(a)                                  Upon
receipt of a Notice of Borrowing, the Agent shall promptly notify each Bank of
the contents thereof and of such Bank’s share (if any) of such Borrowing and
such Notice of Borrowing shall not thereafter be revocable by the Borrower.


 


(b)                                 Not
later than 1:00 P.M. (New York City time) on the date of each Borrowing, each
Bank participating therein shall (except as provided in subsection (c)
of this Section 2.04) make available its share of such Borrowing, in
Federal or other funds immediately available in San Francisco, California, to
the Agent at its address referred to in Section 9.01. Unless the Agent
determines that any applicable condition specified in Article 3 has not
been satisfied, the Agent will make the funds so received from the Banks
available to the Borrower at the Agent’s aforesaid address.


 


(c)                                  If
any Bank makes a new Loan hereunder on a day on which the Borrower is to repay
all or any part of an outstanding Loan from such Bank, such Bank shall apply
the proceeds of its new Loan to make such repayment and only an amount equal to
the difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by such Bank to the Agent as provided in subsection
(b), or remitted by the Borrower to the Agent as provided in Section
2.12, as the case may be.


 


(d)                                 Unless
the Agent shall have received notice from a Bank prior to the date of any
Borrowing that such Bank will not make available to the Agent such Bank’s share
of such Borrowing, the Agent may assume that such Bank has made such share
available to the Agent on the date of such Borrowing in accordance with subsections
(b) and (c) of this Section 2.04 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate or the interest rate applicable thereto pursuant to Section
2.07 and (ii) in the case of such Bank, the


 


17













 


Federal
Funds Rate. If such Bank shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Bank’s Loan included in such
Borrowing for purposes of this Agreement. The failure of any Bank to make
available its share of any Borrowing shall not relieve any other Bank of its
corresponding obligation to do so on the date when due, and no Bank shall be
responsible for the failure of any other Bank to so make its share available.


 


Section 2.05                                Reserved.


 


Section 2.06                                Maturity
of Loans. Each Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.


 


Section 2.07                                Interest
Rates.


 


(a)                                  Each
Base Rate Loan shall bear interest on the outstanding principal amount thereof,
for each day from the date such Loan is made until it becomes due, at a rate
per annum equal to the Base Rate for such day. Such interest shall be payable
for each Interest Period on the last day thereof. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for such day.


 


(b)                                 Each
CD Loan shall bear interest on the outstanding principal amount thereof, for
each day during the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin for such day plus the Adjusted CD
Rate for such Interest Period; provided that
if any CD Loan shall, as a result of clause (ii)(b) of the definition of
Interest Period, have an Interest Period of less than 30 days, such Loan shall
bear interest during such Interest Period at the rate applicable to Base Rate
Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the Applicable Margin for such day plus the Adjusted
CD Rate applicable to such Loan and (ii) the rate applicable to Base Rate Loans
for such day.


 


The “Adjusted CD Rate” applicable to any
Interest Period means a rate per annum determined pursuant to the following
formula:


 


	
  ACDR1 =

  	
  [CDBR]

  	
  + AR

  
	
   

  	
  [1.00-DRP]

  
	
  ACDR =

  	
  Adjusted CD Rate

  
	
  CDBR =

  	
  CD Base Rate

  
	
  DRP =

  	
  Domestic Reserve Percentage

  
	
  AR =

  	
  Assessment Rate

  



 






1
Rounded upward, if necessary, to the next higher 1/100 of 1%.


 


18













 


The “CD Base Rate”
applicable to any Interest Period is the rate of interest determined by the
Agent to be the average (rounded upward, if necessary, to the next higher 1/100
of 1%) of the prevailing rates per annum bid at 11:00 A.M. (New York City time)
(or as soon thereafter as practicable) on the first day of such Interest Period
by two or more New York certificate of deposit dealers of recognized standing
for the purchase at face value from each Reference Bank of its certificates of
deposit in an amount comparable to the principal amount of the CD Loan of such
Reference Bank to which such Interest Period applies and having a maturity
comparable to such Interest Period.


 


“Domestic Reserve
Percentage” means for any day that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.


 


“Assessment Rate”
means for any day the annual assessment rate in effect on such day which is
payable by a member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup “A” (or a comparable successor
assessment risk classification) within the meaning of 12 C.F.R. § 327.4(a) (or
any successor provision) to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation’s (or such successor’s) insuring time deposits,
at offices of such institution in the United States. The Adjusted CD Rate shall
be adjusted automatically on and as of the effective date of any change in the
Assessment Rate.


 


(c)                                  Each
Euro-Dollar Loan shall bear interest on the outstanding principal amount
thereof, for each day during the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin for such day plus the Adjusted London Interbank Offered Rate for such
Interest Period. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.


 


The “Adjusted London Interbank
Offered Rate” applicable to any Interest Period means a rate per
annum equal to the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (i) the applicable London Interbank Offered
Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.


 


The “London Interbank Offered
Rate” means, for such Interest Period, the rate per annum equal
to the British Bankers Association LIBOR Rate (“BBA


 


19













 


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


 


“Euro-Dollar Reserve
Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places)
in effect on such day, whether or not applicable to any Bank, under regulations
issued from time to time by the Board of Governors of the Federal Reserve
System for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The
applicable interest rate for each outstanding Euro-Dollar Loan shall be
adjusted automatically as of the effective date of any change in the
Euro-Dollar Reserve Percentage.


 


(d)                                 Any
overdue principal of or interest on any Euro-Dollar Loan shall bear interest,
payable on demand, for each day from and including the date payment thereof was
due to but excluding the date of actual payment, at a rate per annum equal to
the sum of 2% plus the higher of (i) the sum of
the Applicable Margin for such day plus the Adjusted London Interbank Offered
Rate applicable to such Loan and (ii) the sum of the Applicable Margin for such
day plus the Adjusted London Interbank Offered Rate as of such day applicable
to such Loan amount for a presumed one-month Interest Period (or if such amount
due remains unpaid more than three Euro-Dollar Business Days, then for a
presumed six-month Interest Period), or, if the circumstances described in clause
(a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day.


 


(e)                                  Subject
to Section 8.01(a), each Money Market LIBOR Loan shall bear interest on
the outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the London Interbank Offered
Rate for such Interest Period (determined in accordance with Section 2.07(c)
as if the related Money Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin
quoted by the Bank making such Loan in accordance with Section 2.03. Each
Money Market Absolute Rate Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate


 


20













 


per
annum equal to the Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first day
thereof. Any overdue principal of or interest on any Money Market Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the Base
Rate for such day.


 


(f)                                    The
Agent shall determine each interest rate applicable to the Loans hereunder. The
Agent shall give prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.


 


(g)                                 Each
Reference Bank agrees to use its best efforts to furnish quotations to the
Agent as contemplated by this Section. If any Reference Bank does not furnish a
timely quotation, the Agent shall determined the relevant interest rate on the
basis of the quotation or quotations furnished by the remaining Reference Bank
or Banks or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.


 


(h)                                 The
“Applicable Margin” with respect to
any Euro-Dollar Loan or CD Loan at any date is the applicable percentage amount
set forth below in the applicable column, which shall be (i) determined based
upon the Debt Rating as specified below and (ii) applicable to all Euro-Dollar
Loans and CD Loans existing on and after the first date a specific Debt Rating
is effective (the “Debt Rating Date”) and
continuing until, but not including, the immediate next Debt Rating Date:


 


	
  Level

  	
  Debt Rating

  	
  Applicable

  Margin if

  Usage <50%

  	
  Applicable

  Margin if

  Usage > 50%

  
	
  I

  	
  Greater than or equal to AA- by S&P or
  Aa3 by Moody’s

  	
  0.115%

  	
  0.140%

  
	
  II

  	
  A+ by S&P or A1 by Moody’s

  	
  0.135%

  	
  0.160%

  
	
  III

  	
  A by S&P or A2 by Moody’s

  	
  0.150%

  	
  0.175%

  
	
  IV

  	
  A- by S&P or A3 by Moody’s

  	
  0.190%

  	
  0.240%

  
	
  V

  	
  Equal to or less than BBB+ by S&P or
  Baa1 by Moody’s

  	
  0.270%

  	
  0.320%

  



 


In the event that the Debt Ratings assigned
by S&P and Moody’s differ, the Applicable Margin and the Facility Fee Rate
referred to in Section 2.08 shall be determined by reference to the
rating level having the higher Debt Rating unless such


 


21













 


ratings are more than one level apart, in which case the rating level
that is one tier below the higher of the two ratings shall determine the Applicable
Margin and the Facility Fee Rate. The final Debt Rating level by which the
Applicable Margin and the Facility Fee Rate are determined is referred to
herein as a “Level”.


 


In the event that either S&P or Moody’s
(but not both) shall not make a Debt Rating, the above calculations of the
Applicable Margin and the Facility Fee Rate shall be made based on (i) the
rating provided by S&P or Moody’s, whichever shall then maintain a current
Debt Rating, and (ii) the Debt Rating provided by a nationally recognized
securities rating agency selected by the Borrower and approved by the Agent,
which shall be substituted for either S&P or Moody’s, as the case may be
(the “Alternative Rating Agency”),
and the Alternative Rating Agency’s equivalent rating levels shall be
substituted for the Debt Rating levels of either S&P or Moody’s, whichever
shall no longer then make the applicable Debt Rating.


 


Section 2.08                                Facility
Fees.


 


(a)                                  The
Borrower shall pay to the Agent for the account of the Banks ratably in
proportion to their respective Commitments a facility fee at the Facility Fee
Rate (as defined below). Such facility fee shall accrue from and including the
date hereof to but excluding the Termination Date, on the daily aggregate
amount of the Commitments (whether used or unused).


 


(b)                                 “Facility Fee Rate” means, at any
date, a rate per annum equal to (i) 0.035%, if Level I Status exists at such
date, (ii) 0.040%, if Level II Status exists at such date, (iii) 0.050%, if
Level III Status exists at such date, (iv) 0.060%, if Level IV Status exists at
such date, and (v) 0.080% if Level V Status exists at such date.


 


(c)                                  Accrued
fees under this Section shall be payable quarterly in arrears on each September
1, December 1, March 1 and June 1 and upon the respective Termination Date for
each Bank (and, if later, the date the Loans shall be repaid in their
entirety).


 


Section 2.09                                Optional
Termination or Reduction of Commitments. The Borrower may, upon at least
three Domestic Business Days’ notice to the Agent, (a) terminate the
Commitments at any time, if no Loans are outstanding at such time, or (b)
ratably reduce from time to time by an aggregate amount of $25,000,000 or any
larger multiple of $5,000,000, the aggregate amount of the Commitments in
excess of the aggregate outstanding principal amount of the Loans.


 


Section 2.10                                Mandatory
Termination of Commitments. The Commitments of each Bank shall terminate on
its respective Termination Date, and any Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.


 


Section 2.11                                Optional
Prepayments.


 


(a)                                  The
Borrower may, upon at least one Domestic Business Day’s notice to the Agent,
prepay any Base Rate Borrowing (or any Money Market Borrowing bearing interest
at the Base Rate pursuant to Section 8.01(a)) in whole at any time, or
from time to time in part in amounts aggregating $25,000,000 or any larger
multiple of $5,000,000,


 


22













 


by
paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Borrowing.


 


(b)                                 Except
as provided in Sections 2.18 and 8.02, and subject to Section 2.13,
the Borrower may not prepay all or any portion of the principal amount of any
Fixed Rate Loan prior to the maturity thereof.


 


(c)                                  Upon
receipt of a notice of prepayment pursuant to this Section, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank’s ratable
share (if any) of such prepayment and such notice shall not thereafter be
revocable by the Borrower.


 


Section 2.12                                General
Provisions as to Payments.


 


(a)                                  The
Borrower shall make each payment of principal of and interest on, the Loans and
of fees hereunder, not later than 12:00 Noon (New York City time) on the date
when due, in Federal or other funds immediately available in San Francisco,
California, without set-off, deduction, recoupment or counterclaim, to the
Agent at its address referred to in Section 9.01. The Agent will
promptly distribute to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Domestic Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day unless such Domestic
Business Day occurs after the Termination Date, in which case the date for payment
thereof shall be the next preceding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month or occurs after the
Termination Date, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month or occurs after the Termination Date, in which
case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.


 


(b)                                 Unless
the Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Banks hereunder or that the Borrower will not
make such payment in full, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date and the Agent may, in reliance upon
such assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent that the
Borrower shall not have so made such payment, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the


 


23













 


date
such amount is distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate.


 


Section 2.13                                Funding
Losses. If the Borrower makes any payment of principal with respect to any
Fixed Rate Loan (pursuant to Section 2.16, Article 6 or 8
or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to Section
2.07(d), or if the Borrower fails to borrow any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section 2.04(a), or
if any Bank shall be required to assign to any other Bank any portion of a
Committed Loan pursuant to Section 2.17(b), the Borrower shall reimburse
each Bank within 15 days after demand for any resulting loss or expense
incurred by it (or by an existing or prospective Participant in the related
Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to borrow, provided that such Bank shall have delivered to the Borrower
a certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.


 


Section 2.14                                Computation
of Interest and Fees. Interest based on the Prime Rate hereunder shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the first day but
excluding the last day). All other interest and fees shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).


 


Section 2.15                                Withholding
Tax Exemption.


 


At least five Domestic Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Bank, each Bank that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to each of the
Borrower and the Agent two duly completed copies of United States Internal
Revenue Service Form W-8 (including Form W-8BEN or W-8EC1), certifying in
either case that such Bank is entitled to receive payments under this Agreement
and its Note, if applicable, without deduction or withholding of any United
States federal income taxes. Each Bank which so delivers a Form W-8BEN or
W-8EC1 further undertakes to deliver to the Agent on behalf of the Borrower two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, in each case certifying that such Bank
is entitled to receive payments under this Agreement and its Notes, if
applicable, without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Borrower and the Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.


 


Section 2.16                                Change
of Control. If a Change of Control shall occur (a) the Borrower will,
within ten days after the occurrence thereof, give each Bank notice thereof and
shall


 


24













 


describe in reasonable detail the facts and circumstances
giving rise thereto and (b) each Bank may, by three Domestic Business Days’
notice to the Borrower and the Agent given not later than 60 days after receipt
of such notice of Change of Control, terminate its Commitment, which shall
thereupon be terminated, and declare its pro rata share of the Committed Loans
and the Money Market Loans made by it (together with accrued interest thereon)
and any other amounts payable hereunder for its account to be, and such Loans
and such other amounts (including, without limitation, amounts payable under Section
2.13) shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower. For the purpose of this Section, a “Change of Control” shall occur if
(i) a majority of the directors of the Borrower shall be Persons other than
Persons (x) for whose election proxies shall have been solicited by the Board
of Directors of the Borrower or (y) who are then serving as directors appointed
by the Board of Directors to fill vacancies on the Board of Directors caused by
death or resignation (but not by removal) or to fill newly-created
directorships or (ii) any person or group of persons (within the meaning of Section
13 or 14 of the Exchange Act) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Exchange Act) of 50% or more in voting power of
the outstanding Voting Stock.


 


Section 2.17                                Increase
in Combined Commitments.


 


(a)                                  The
Borrower shall have the right, without the consent of the Banks, subject to the
terms of this Section 2.17, to effectuate from time to time, at any
time prior to the then effective Termination Date, an increase in the combined
Commitments under this Agreement by adding to this Agreement one or more other
banks or other financial institutions reasonably acceptable to the Agent and
the Borrower and qualifying as an Assignee hereunder, who shall, upon
completion of the requirements of this Section 2.17 constitute “Banks”
hereunder (an “Added Bank”), or by allowing
one or more Banks in their sole discretion to increase their respective
Commitments hereunder (each an “Increasing Bank”),
so that such added and increased Commitments shall equal the increase in
Commitments effectuated pursuant to this Section 2.17; provided that (i) there shall not be any increased
Commitment or any added Commitment, unless the aggregate increase or addition
to be effected is at least $25,000,000, (ii) no increase in or added
Commitments pursuant to this Section 2.17 shall result in combined
Commitments exceeding $2,250,000,000, (iii) no Bank’s Commitment shall be
increased under this Section 2.17 without the consent of such Bank, and
(iv) there shall not exist any Default or Event of Default immediately prior to
and immediately after giving effect to such increased or added Commitment. The
Borrower shall deliver or pay, as applicable, to the Agent not later than ten
Domestic Business Days prior to any such increase in Commitments each of the
following items with respect to each Added Bank and Increasing Bank:


 


(i)                                     a
written notice of Borrower’s intention to increase the combined Commitments
pursuant to this Section 2.17, which shall specify each Added Bank and
Increasing Bank, if any, the changes in amounts of Commitments that will
result, and such other information as is reasonably requested by the Agent;


 


25













 


(ii)                                  documents
in the form of Exhibit E or Exhibit F, as may be required by the
Agent, executed and delivered by each Added Bank and each Increasing Bank,
pursuant to which it becomes a party hereto or increases its Commitment, as the
case may be;


 


(iii)                               if requested by the
applicable Bank, Notes or replacement Notes, as the case may be, executed and
delivered by Borrower; and


 


(iv)                              a
non-refundable processing fee of $3,500 with respect to each Added Bank or
Increasing Bank for the sole account of the Agent.


 


(b)                                 Upon
receipt of any notice referred to in clause (a)(i) above, the Agent
shall promptly notify each Bank thereof. Upon execution and delivery of such
documents and the payment of such fee (the “Increased
Commitment Date”), each such Added Bank shall constitute a “Bank”
for all purposes under this Agreement and related documents without any
acknowledgment by or the consent of the other Banks, with a Commitment as
specified in such documents, or such Bank’s Commitment shall increase as
specified in such documents, as the case may be. Immediately upon the
effectiveness of the addition of such Added Bank or the increase in the
Commitment of such Increasing Bank under this Section 2.17, (i) the
respective pro rata shares of the Banks shall be deemed modified as appropriate
to correspond to such changed combined Commitments, and (ii) if there are at
such time outstanding any Committed Loans, each Bank whose pro rata share has
been decreased as a result of the increase in the combined Commitments shall be
deemed to have assigned, without recourse, to each Added Bank and Increasing
Bank such portion of such Bank’s Committed Loans as shall be necessary to
effectuate such adjustment in pro rata shares. Each Increasing Bank and Added
Bank (x) shall be deemed to have assumed such portion of such Committed Loans
and (y) shall fund to each other Bank on the Increased Commitment Date the
amount of Committed Loans assigned by it to such Bank. The Borrower agrees to
pay to the Banks on demand any and all amounts to the extent payable pursuant
to Section 2.13 as a result of any such prepayment of Committed Loans
occasioned by the foregoing increase in Commitments and the reallocation of the
pro rata shares.


 


(c)                                  This
section shall supercede any provisions in Section 9.06(b) to the
contrary.


 


Section 2.18                                Extension
of Termination Date.


 


(a)                                  Requests
for Extension. The Borrower may, by notice to the Agent, given not earlier
than 60 days prior to each of the first and second anniversaries of the
Effective Date hereof (each such anniversary being referred to herein as an “Anniversary Date” and each such 60
day period prior to an Anniversary Date being referred to herein as a “Request Period”), request that each
Bank extend its Commitment beyond such Bank’s Termination Date then in effect
(the “Existing Termination Date”)
for an additional one-year period from the Existing Termination Date; provided
that no more than one such request may be made during each Request Period. The
Agent shall promptly notify each


 


26













 


Bank
of the Borrower’s request for such extension (the date such notice is given
being referred to herein as the “Notice Date”).


 


(b)                                 Bank
Elections to Extend. Each Bank, acting in its sole discretion, shall, by
notice to the Agent given not later than 30 days following the Notice Date,
advise the Agent whether or not such Bank agrees to such extension (each such
Bank that determines not to so extend its Commitment being referred to as a “Non-Extending Bank”)). Any Bank that
does not so advise the Agent on or before the 30th day following the
Notice Date (the “Response Deadline”) shall be
deemed to be a Non-Extending Bank. The election of any Bank to agree to such
extension of the Termination Date shall not obligate any other Bank to so
agree.


 


(c)                                  Notification
by Agent. The Agent shall notify the Borrower of each Bank’s determination
under this Section 2.18 no later than the 5th Domestic
Business Day after the Response Deadline.


 


(d)                                 Additional
Commitment Banks. The Borrower shall have the right on or before the
related Anniversary Date to replace each Non-Extending Bank with, and add as “Banks”
under this Agreement in place thereof, one or more Assignees (each, an “Additional Commitment Bank”) as
provided in Section 9.06, provided that
each of such Additional Commitment Banks shall enter into an Assignment and
Assumption Agreement pursuant to which such Additional Commitment Bank shall
undertake a Commitment (and, if any such Additional Commitment Bank is already
a Bank, its Commitment shall be in addition to such Bank’s Commitment hereunder
on such date).


 


(e)                                  Minimum
Extension Requirement. If (and only if) the total of the Commitments of the
Banks that have agreed to so extend the Termination Date (each, an “Extending Bank”) and the additional
Commitments of the Additional Commitment Banks shall be more than 51% of the
aggregate amount of the Commitments in effect immediately prior to the related
Anniversary Date, then, effective as of the related Anniversary Date (but
subject to the prior satisfaction of the conditions set forth in clause (f)
below), the Termination Date of this Agreement and the Termination Date with
respect to the Commitments of each Extending Bank and of each Additional
Commitment Bank shall be extended to the date falling one year after the
Existing Termination Date (except that, if such date is not a Domestic Business
Day, such Termination Date as so extended shall be the next preceding Domestic
Business Day) and each Additional Commitment Bank shall thereupon become a “Bank”
for all purposes of this Agreement. Notwithstanding anything herein to the
contrary, the Commitment of each Non-Extending Bank shall remain in full force
and effect until and shall terminate on the Existing Termination Date for such
Non-Extending Bank, unless such Non-Extending Bank is replaced prior to the
related Anniversary Date by an Additional Commitment Bank as provided in clause
(d) above.


 


(f)                                    Conditions
to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Termination Date pursuant to this Section shall not be
effective with respect to any Bank unless:


 


27













 


(i)                                     no
Default shall have occurred and be continuing on the date of such extension and
after giving effect thereto;


 


(ii)                                  the
representations and warranties of the Borrower contained in this Agreement that
are qualified by materiality are true and correct and the representations and
warranties of the Borrower contained in the Agreement that are not qualified by
materiality are true and correct in all material respects, in each case on and
as of the date of such extension and after giving effect thereto, as though
made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date);


 


(iii)                               at the time of such
extension no material adverse change has occurred since February 3, 2007 in the
business, financial position or results of operations of the Borrower and its
Consolidated Subsidiaries considered as a whole; and


 


(iv)                              the
chief financial officer, treasurer or assistant treasurer of the Borrower shall
have delivered to the Agent a certificate, dated the Anniversary Date with
respect to such extension, as to the matters referred to in clauses (i) through
(iii) above.


 


(g)                                 Payment
of Non-Extending Banks. On the effective date of any extension of the
Termination Date hereunder, the Borrower shall prepay any Committed Loans
outstanding on such date (and pay any additional amounts required pursuant to Section
2.08 or 2.13) to the extent necessary to keep outstanding Committed
Loans ratable with any revised pro rata allocation of the Commitments of the
respective Banks effective as of such date.


 


(h)                                 Conflicting
Provisions. This Section shall supersede any provisions in Section 9.06
to the contrary.


 


Section 2.19                                Evidence
of Debt. The Loans made by each Bank shall be evidenced by one or more
accounts or records maintained by such Bank and by the Agent in the ordinary
course of business. 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 its obligations hereunder. In
the event of any conflict between the accounts and records maintained by any
Bank and the accounts and records of the Agent in respect of such matters, the
accounts and records of the Agent shall control in the absence of manifest
error.


 


ARTICLE 3.

CONDITIONS


 


Section 3.01                                Effectiveness.
This Agreement shall become effective on the date that each of the following
conditions shall have been satisfied (or waived in accordance with Section 9.05):


 


28













 


(a)                                  receipt
by the Agent of counterparts hereof signed by each of the parties hereto (or,
in the case of any party as to which an executed counterpart shall not have
been received, receipt by the Agent in form satisfactory to it of telegraphic,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party);


 


(b)                                 receipt
by the Agent for the account of each Bank requesting such, of a duly executed
Note dated on or before the Effective Date;


 


(c)                                  receipt
by the Agent of an opinion of Timothy R. Baer, Esq., General Counsel for the
Borrower, substantially in the form of Exhibit G hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;


 


(d)                                 receipt
by the Agent of an opinion of Helms Mulliss & Wicker, PLLC, special counsel
for the Agent, substantially in the form of Exhibit H hereto and
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;


 


(e)                                  receipt
by the Agent of evidence satisfactory to it of (i) the payment of all principal
of and interest on any loans outstanding under, and of all accrued fees under
the Existing Five-Year Agreement, and (ii) the satisfaction of all obligations,
termination of all commitments under, and cancellation or expiration of, the Existing
Five-Year Agreement;


 


(f)                                    receipt
by the Agent of all documents it may reasonably request relating to the
existence of the Borrower, the corporate authority for and the validity of this
Agreement and the Notes, if any, and any other matters relevant hereto, all in
form and substance satisfactory to the Agent;


 


(g)                                 receipt
by the Agent of a certificate signed by the assistant treasurer of the Borrower
certifying that since February 3, 2007 there shall not have occurred any
material adverse change in the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole.


 


Promptly after the Effective Date the Agent
shall deliver to the Borrower for cancellation the promissory note of each lender
under the Existing Five-Year Agreement, or, in lieu thereof, a lost note
affidavit from any such lender which does not return its promissory note to the
Agent. The Agent shall promptly notify the Borrower and each Bank of the
effectiveness of this Agreement, and such notice shall be conclusive and
binding on all parties hereto.


 


Section 3.02                                Borrowings.
The obligation of any Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:


 


(a)                                  receipt
by the Agent of a Notice of Borrowing as required by Section 2.02 or 2.03,
as the case may be;


 


29













 


(b)                                 the
fact that, immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans will not exceed the aggregate amount of the
Commitments;


 


(c)                                  the
fact that, immediately before and after such Borrowing, no Default shall have
occurred and be continuing; and


 


(d)                                 the
fact that (i) the representations and warranties of the Borrower contained in
this Agreement that are qualified by materiality are true and correct, and (ii)
the representations and warranties of the Borrower contained in this Agreement
that are not qualified by materiality are true and correct in all material
respects, in each case on and as of the date of such Borrowing (except, in the
case of a Refunding Borrowing, the representations and warranties set forth in Section
4.05 as to any matter which has theretofore been disclosed in writing by
the Borrower to the Banks).


 


Each Borrowing hereunder shall be deemed to
be a representation and warranty by the Borrower on the date of such Borrowing
as to the facts specified in clauses (b), (c) and, to the extent
applicable, (d) of this Section.


 


ARTICLE 4.

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants that:


 


Section 4.01                                Corporate
Existence and Power. Each of the Borrower and each of its Consolidated
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where, in light of the nature of the business transacted or
the property owned by it, such qualification is necessary and the failure so to
qualify might permanently impair title to property material to its operations
or its right to enforce a material contract against others, or expose it to
substantial liability in such jurisdiction.


 


Section 4.02                                Corporate
and Governmental Authorization; No Contravention. The execution, delivery
and performance by the Borrower of this Agreement and the Notes, if any, are
within the Borrower’s corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the articles of incorporation or by-laws of the Borrower or of any agreement or
instrument evidencing or governing Debt of the Borrower or any other material
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or result in the creation or imposition of any Lien on any asset
of the Borrower or any of its Subsidiaries.


 


Section 4.03                                Binding
Effect. This Agreement constitutes a valid and binding agreement of the
Borrower and the Notes, if any, when executed and delivered in accordance with
this Agreement, will constitute valid and binding obligations of the Borrower
in each case enforceable in accordance with their respective terms, except as
(i) the enforceability thereof


 


30













 


may be limited by bankruptcy, insolvency or similar
laws affecting creditors’ rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles
of general applicability.


 


Section 4.04                                Financial
Information. The consolidated statements of financial position of the Borrower
and its Consolidated Subsidiaries as of February 3, 2007 and the related
consolidated statements of results of operations, cash flows and shareholders’
investment for the fiscal year then ended, reported on by Ernst & Young,
LLP and set forth in the Borrower’s Form 10-K for the fiscal year then ended, a
copy of which has been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
fiscal year.


 


Section 4.05                                Litigation.
There is no action, suit or proceeding pending against, or to the knowledge of
the Borrower threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official which might reasonably be expected to materially adversely affect the
business, consolidated financial position or consolidated results of operations
of the Borrower and its Consolidated Subsidiaries or which in any manner draws
into question the validity of this Agreement or any Note.


 


Section 4.06                                Compliance
with ERISA. No Plan has incurred any “accumulated funding deficiency” (within
the meaning of Section 302 of ERISA or Section 412 of the Internal Revenue
Code), whether or not waived. Neither the Borrower nor any of its Subsidiaries
nor any Plan has engaged in any “prohibited transaction”, as such term is
defined in Section 4975 of the Internal Revenue Code or Section 406 or 407 of
ERISA, which might reasonably be expected to result, directly or indirectly, in
any material liability of the Group. No Plan Event has occurred or is expected
to occur which might reasonably be expected to result, directly or indirectly,
in any liability of the Group. The accumulated benefit obligation of any Plan
(as determined by the Plan’s actuaries) does not exceed the fair market value
of such Plan’s assets as of the end of the most recent year-end of such Plan by
more than $100,000,000. No “reportable event” (as defined in Section 4043 of
ERISA) has occurred with respect to any Plan or any Multiemployer Plan which
might reasonably be expected to result, directly or indirectly, in any
liability of the Group. If the Borrower or any of its Subsidiaries or any ERISA
Affiliate of any of them were to withdraw from any Plan described in Section
4063 of ERISA, or were to withdraw completely or partially from any
Multiemployer Plan, neither the Borrower nor any of its Subsidiaries would
incur, directly or indirectly, any liability under Title IV of ERISA in excess
of $100,000,000.


 


Section 4.07                                Payment
of Taxes. United States Federal income tax returns of the Borrower and its
Subsidiaries have been examined and closed through the fiscal year ended
January 31, 1998. The Borrower and its Subsidiaries have filed all United
States Federal income tax returns and all other material tax returns which, to
the best of the Borrower’s knowledge, are required to be filed by them and have
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower or any Subsidiary, except for any such taxes which are
being contested in good faith by appropriate proceedings and against which the
Borrower in its judgment has set aside adequate reserves in accordance with
generally accepted accounting principles.


 


31













 


Section 4.08                                Full
Disclosure. All information heretofore furnished by the Borrower to the Agent
or any Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information hereafter
furnished by the Borrower to the Agent or any Bank will be, true and accurate
in all material respects on the date as of which such information is stated or
certified.


 


ARTICLE 5.

COVENANTS


 


The Borrower agrees that, so long as any Bank
has any Commitment hereunder or any Loan or other fees hereunder shall remain
unpaid:


 


Section 5.01                                Information.
The Borrower will deliver to each of the Banks:


 


(a)                                  as
soon as available and in any event within 90 days after the end of each fiscal
year of the Borrower, a consolidated statement of financial position of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of results of operations, cash flows
and shareholders’ investment for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported on
in a manner acceptable to the Securities and Exchange Commission by Ernst &
Young, LLP or other Registered Public Accounting Firm of recognized national
standing selected by the Borrower (the “Auditor”)
or other independent public accountants of nationally recognized standing, and
accompanied by a report of management on the Borrower’s internal control over
financial reporting pursuant to Item 308(a) of Regulation S-K promulgated under
the Exchange Act, and any report of the Auditor with respect the Borrower’s internal
controls so long as such reports continue to be required to be publicly filed
with the Securities and Exchange Commission or any successor or analogous
governmental authority pursuant to applicable federal securities laws;


 


(b)                                 as
soon as available and in any event within 60 days after the end of each of the
first three quarters of each fiscal year of the Borrower, a consolidated
statement of financial position of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of results of operations and cash flows for such quarter and for the
portion of the Borrower’s fiscal year ended at the end of such quarter, setting
forth in each case in comparative form the figures for the corresponding quarter
and the corresponding portion of the Borrower’s previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer or the chief accounting officer of the Borrower;


 


(c)                                  within
15 days after the delivery of each set of financial statements referred to in clauses
(a) and (b)) above, a certificate of the chief financial officer or
the chief accounting officer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.07 to 5.08,
inclusive, on the date of such financial statements and (ii) stating whether
any Default exists on the date of such certificate and, if any


 


32













 


Default
then exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;


 


(d)                                 within
15 days after the delivery of each set of financial statements referred to in clause
(a) above, a statement of the Auditor which reported on such statements
whether anything has come to their attention to cause them to believe that any
Default existed on the date of such statements;


 


(e)                                  within
15 days after any officer of the Borrower obtains knowledge of any Default, if
such Default is then continuing, a certificate of the chief financial officer
or the chief accounting officer of the Borrower setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto;


 


(f)                                    within
15 days after the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;


 


(g)                                 within
15 days after the filing thereof copies of all reports on Forms 10-K, 10-Q and
8-K (or their equivalents) which the Borrower shall have filed with the
Securities and Exchange Commission or any governmental authority succeeding to
any of its functions (and if any such filing discloses an Internal Control
Event which the Borrower has determined requires remediation, copies of all
documents, reports or correspondence related thereto which have been publicly
filed with the Securities and Exchange Commission or any governmental authority
succeeding to any of its functions);


 


(h)                                 if
and when any ERISA Affiliate (i) gives or is required to give notice to the
PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect
to any Plan which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has given
or is required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the PBGC; (ii)
receives notice of complete or partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent
or has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails
to make any payment or contribution to any Plan or Multiemployer Plan or makes
any amendment to any Plan which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security, a certificate of the
chief financial officer or the chief accounting officer of the Borrower setting
forth details as to such occurrence and action, if any, which the Borrower or
applicable ERISA Affiliate is required or proposes to take;


 


33













 


(i)                                     promptly
following, and in any event within ten days of any change in a Debt Rating by
any Rating Agency, notice thereof; and


 


(j)                                     from
time to time such additional information regarding the financial position or
business of the Borrower and its Subsidiaries as the Agent, at the request of
any Bank, may reasonably request.


 


As to any information contained in materials furnished pursuant to Section
5.01(g), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above. Notwithstanding the foregoing, the
Borrower shall remain obligated to furnish the information and materials
described in clauses (a) and (b) above at the times specified therein.


 


The Borrower hereby acknowledges that (a) the Agent and/or the
Arrangers will make available to the Banks 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) none of the Banks
will be “public-side” Banks (i.e., Banks 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 (w) no Borrower Materials are to be made available to Public
Lenders, (x) all Borrower Materials shall be treated as private and may contain
material non-public information with respect to the Borrower or its securities
for purposes of United States federal and state securities laws; and (y) the
Agent and the Arrangers shall treat all Borrower Materials as being suitable
only for posting on a portion of the Platform not designated “Public Investor”.
Notwithstanding the foregoing, the Borrower shall be under no obligation to
mark any Borrower Materials “PUBLIC”.


 


Section 5.02                                Maintenance
of Property. The Borrower will keep, and will cause each Subsidiary to
keep, all material property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted, except where the
failure to do so would not reasonably be expected to have a material adverse
effect on the business, financial position or results of operations of the
Borrower and its Subsidiaries taken as a whole.


 


Section 5.03                                Conduct
of Business and Maintenance of Existence. Except as permitted by Section
5.05, the Borrower will continue, and will cause each Significant
Subsidiary to continue, to engage in business of the same general type as now
conducted by the Borrower and its Significant Subsidiaries, and will preserve,
renew and keep in full force and effect, and will cause each Significant
Subsidiary to preserve, renew and keep in full force and effect its respective
corporate existence and its respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; provided
that, neither the Borrower nor any Significant Subsidiary shall be required to
preserve any such right, privilege or franchise if the Borrower shall determine
in good faith (a) that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or any Significant Subsidiary or (b) the
loss thereof will not be disadvantageous in any material respect to the
Borrower.


 


Section 5.04                                Compliance
with Laws. Except where the failure to do so would not reasonably be
expected to have a material adverse effect on the business, financial position
or results of operations of the Borrower and its Subsidiaries taken as a whole,
the Borrower will


 


34













 


comply, and cause each of its Subsidiaries to comply,
in all material respects with all applicable laws, rules, regulations and
orders where material to the assets or operations of the Borrower or any such
Subsidiary, such compliance to include, without limitation, paying before the
same become delinquent all taxes, fees, assessments and other governmental charges
imposed upon it or upon its property except to the extent any such taxes, fees,
assessments or other governmental charges are being contested in good faith by
appropriate proceedings and adequate reserves in the judgment of the Borrower
therefor have been established on the books of such Person in accordance with
generally accepted accounting principles.


 


Section 5.05                                Consolidations,
Mergers and Sale of Assets. The Borrower will not (a) dissolve or
liquidate, (b) merge with or into, or consolidate with, any other Person, (c)
dissolve or liquidate any Subsidiary or permit the merger or consolidation of
any Subsidiary into or with any other Person unless the Borrower shall
determine in good faith (i) that any such transaction is in the best interests
of the Borrower or (ii) such transaction will not be disadvantageous in any
material respect to the Borrower, or (d) sell, convey or transfer all or
substantially all of its property and assets to any other Person; provided, however, that
(x) any Person may be merged with or into, or consolidated with, the Borrower
if the Borrower is the surviving corporation, and (y) the Borrower may merge
with or into, or consolidate with, another corporation or sell, convey or
transfer its properties and assets substantially as an entity to any Person if
the corporation formed by such consolidation or into which the Borrower is
merged, or the Person which acquires by sale, conveyance or transfer the
properties and assets of the Borrower substantially as an entity, shall be a
corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia, and shall expressly
assume by a supplemental agreement hereto, executed and delivered to the Agent
in form satisfactory to the Agent, the full and timely performance and
observance of every covenant and agreement contained herein, including but not
limited to the payment of the principal and interest provided herein, on the
part of the Borrower to be performed or observed, in each case if immediately
after giving effect to such merger, consolidation, sale, conveyance or
transfer, no Default would occur and be continuing.


 


Section 5.06                                Dividends.
The Borrower will not, and will not permit any Subsidiary to, declare or pay
any dividends, purchase or otherwise acquire for value any of its capital stock
now or hereafter outstanding, or make any distribution of assets to its
stockholders as such, or permit any of its Subsidiaries to purchase or
otherwise acquire for value any of the capital stock of the Borrower, if any
such action would result in a breach of a covenant or agreement contained in,
or default under, or constitute an event of default under, any other agreement
then in effect between the Borrower and any Person relating to indebtedness for
money borrowed.


 


Section 5.07                                Negative
Pledge. The Borrower will not permit, at the end of any fiscal quarter, the
aggregate amount of Debt of the Borrower and its Consolidated Subsidiaries
secured by Liens (other than (a) Capital Lease Obligations, (b) Liens on
Accounts Receivable and (c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost of acquiring
or constructing such asset, provided that
such Lien attaches to such asset concurrently or within 120 days after the
acquisition or completion of construction thereof) to exceed 20% of
Consolidated Tangible Net Worth.


 


35













 


Section 5.08                                Leverage
Ratio. The Borrower will not, at the end of any fiscal quarter of the
Borrower, permit the ratio of (a) Total Finance Liabilities to (b) Total Capitalization to be greater than or equal to
3.0:4.0.


 


Section 5.09                                Use
of Proceeds. The proceeds of the Loans made under this Agreement will be
used, directly or indirectly, by the Borrower as a commercial paper backup
facility and for its general corporate purposes. None of such proceeds will be
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any “margin stock” within the meaning of
Regulation U.


 


ARTICLE 6.

DEFAULTS


 


Section 6.01                                Events
of Default. If one or more of the following events (“Events
of Default”) shall have occurred and be continuing:


 


(a)                                  the
Borrower shall fail to pay when due any principal of any Loan, or shall fail to
pay within five Domestic Business Days of the due date thereof any interest on
any Loan, any fees or any other amount payable hereunder;


 


(b)                                 the
Borrower shall fail to observe or perform any covenant contained in Sections
5.05 through 5.09, inclusive;


 


(c)                                  the
Borrower shall fail to observe or perform any covenant or agreement contained
in this Agreement (other than those covered by clause (a) or (b) above) for 30
days after written notice thereof has been given to the Borrower by the Agent
at the request of any Bank;


 


(d)                                 any
representation, warranty, certification or statement made by the Borrower in
this Agreement or in any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect in any
material respect when made (or deemed made);


 


(e)                                  the
Borrower or any of its Subsidiaries shall fail to make any payment in respect
of any Material Debt when due or within any applicable grace period;


 


(f)                                    any
event or condition shall occur which results in the acceleration of the
maturity of any Material Debt or enables the holder of such Material Debt or
any Person acting on such holder’s behalf to accelerate the maturity thereof;


 


(g)                                 the
Borrower or any of its Significant Subsidiaries shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general


 


36













 


assignment
for the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;


 


(h)                                 an
involuntary case or other proceeding shall be commenced against the Borrower or
any of its Significant Subsidiaries seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Significant Subsidiary
under the federal bankruptcy laws as now or hereafter in effect;


 


(i)                                     any
Plan Event that is likely to result in a liability of the Borrower or any
Subsidiary to the PBGC or any Multiemployer Plan in excess of $100,000,000
occurs, or the Borrower or any Subsidiary shall fail to meet its minimum
funding requirements under ERISA with respect to any Plan (or other class of
benefit which the PBGC has elected to insure), or any Plan shall be the subject
of termination proceedings and there shall result from such termination
proceedings a liability of the Borrower to the PBGC in excess of $100,000,000;
or


 


(j)                                     a
judgment or order for the payment of money in excess of $100,000,000 shall be
rendered against the Borrower or any of its Subsidiaries and such judgment or
order shall continue unsatisfied and unstayed for a period of 10 days;


 


then, and in every such event, the Agent shall (i) if requested by
Banks having more than 50% in aggregate amount of the Commitments, by notice to
the Borrower terminate the Commitments and they shall thereupon terminate, and
(ii) if requested by Banks holding more than 50% in aggregate principal amount
of the Loans, by notice to the Borrower declare the unpaid principal amount of
all outstanding Loans (together with accrued interest thereon and all other
fees pursuant to Section 2.08 or 2.13 owing or payable hereunder)
to be, and the unpaid principal amount of all outstanding Loans shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower; provided that in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to the
Borrower, without any notice to the Borrower or any other act by the Agent or
the Banks, the Commitments shall thereupon terminate and the unpaid principal
amount of all outstanding Loans (together with accrued interest thereon and all
other fees pursuant to Section 2.08 or 2.13 owing or payable
hereunder) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.


 


Section 6.02                                Notice
of Default. The Agent shall give notice to the Borrower under Section
6.01(c) promptly upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.


 


37













 


ARTICLE 7.

THE AGENT, THE SENIOR MANAGING AGENTS, THE MANAGING AGENTS,

THE CO-AGENTS, THE CO-DOCUMENTATION AGENTS

AND THE SYNDICATION AGENT


 


Section 7.01                                Appointment
and Authorization. Each Bank irrevocably appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement and the Notes, if any, as are delegated to the Agent by the
terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.


 


Section 7.02                                Agent
and Affiliates. Except as provided in Section 2.03(d), Bank of
America shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Bank of America and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower
or any Subsidiary or affiliate of the Borrower as if it were not the Agent
hereunder. The Banks acknowledge that, pursuant to such activities, Bank of
America or its affiliates may receive information regarding the Borrower or its
affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such affiliate) and acknowledge that
the Agent shall be under no obligation to provide such information to them. With
respect to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any other Bank and may exercise such rights and powers
as though it were not the Agent, and the terms “Bank” and “Banks” include Bank
of America in its individual capacity.


 


Section 7.03                                Action
by Agent. The obligations of the Agent hereunder are only those expressly
set forth herein, and the Agent shall not be a trustee or fiduciary for any
Bank; the term “Agent” is used solely as a matter of market custom to connote
an administrative relationship among independent contracting parties. Without
limiting the generality of the foregoing, the Agent shall not be required to
take any action with respect to any Default, except as expressly provided in Article
6.


 


Section 7.04                                Consultation
with Experts. The Agent may consult with legal counsel (who may be counsel
for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.


 


Section 7.05                                Liability
of Agent. Neither the Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection herewith (a) with the consent or
at the request of the Required Banks or 
all Banks, as the case may be, or (b) in the absence of its own gross
negligence or willful misconduct and in no event shall any such Person be
liable for special, consequential, punitive or indirect damages. Neither the
Agent nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of
items required to be delivered to the Agent; or (iv) the validity,
enforceability,


 


38













 


effectiveness, genuineness or sufficiency of this
Agreement, the Notes, if any, or any other instrument or writing furnished in
connection herewith. Neither the Agent nor any of its affiliates nor any of
their respective directors, officers, agents or employees shall be required to
initiate or conduct any litigation or collection proceedings under this
Agreement or the Notes, if any. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.


 


Section 7.06                                Indemnification.
Each Bank shall, ratably in accordance with its Commitment (determined at the
time such indemnification is sought), indemnify the Agent, its affiliates and
their respective directors, officers, agent and employees (to the extent not
reimbursed by the Borrower) from and against all Indemnified Liabilities, as
defined in Section 9.03(b) (except such as result from such
indemnitees’ gross negligence or willful misconduct; provided,
however, that no action taken in
accordance with directions of the Required Banks or, in the case of an action
expressly requiring the consent of all of the Banks, with the directions of all
of the Banks, shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section), that such indemnitees may suffer or
incur in connection with this Agreement or as a result of any action taken or
omitted by such indemnitees hereunder. Without limitation of the foregoing,
each Bank shall reimburse the Agent upon demand for its ratable share
(determined at the time such reimbursement is sought) of any costs or
out-of-pocket expenses (including fees and expenses of counsel, including the
allocated costs of internal legal services) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of
the Borrower. The undertaking in this Section shall survive termination of the
Commitments, the repayment of all Loans and the resignation of the Agent.


 


Section 7.07                                Credit
Decision. Each Bank acknowledges that it has, independently and without
reliance upon the Agent, any Senior Managing Agent, any Managing Agent, any
Co-Agent, any Co-Documentation Agent, the Syndication Agent or any other Bank,
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
Bank  also acknowledges that it will,
independently and without reliance upon the Agent, any Senior Managing Agent,
any Managing Agent, any Co-Agent, any Co-Documentation Agent, the Syndication
Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under this Agreement.


 


Section 7.08                                Successor
Agent. The Agent may resign at any time by giving notice thereof to the
Banks and the Borrower. Upon any such resignation, the Required Banks shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the acceptance of
its appointment as Agent hereunder by a


 


39













 


successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall thereafter be discharged from its duties
and obligations hereunder. After any retiring Agent’s resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.


 


Section 7.09                                Agent’s
Fee. The Borrower shall pay to the Agent for its own account fees in the
amounts and at the times previously agreed upon between the Borrower and the
Agent.


 


Section 7.10                                Senior
Managing Agents, Managing Agents, Co-Agents, Co-Documentation Agents, and
Syndication Agent. Nothing in this Agreement shall impose on any Co-Agent,
Senior Managing Agent, Managing Agent, Co-Documentation Agent, or Syndication
Agent, in its capacity as such, any duties or obligations whatsoever, nor shall
any Co-Agent, Senior Managing Agent, Managing Agent, Co-Documentation Agent, or
Syndication Agent, in its capacity as such be deemed to have any fiduciary
relationship with any Bank.


 


Section 7.11                                Defaults.
The Agent shall not be deemed to have knowledge or notice of the occurrence of
a Default or Event of Default unless the Agent has received written notice from
a Bank or the Borrower specifying such Default or Event of Default and stating
that such notice is a “Notice of Default”. In the event that the Agent receives
such a notice of the occurrence of a Default or Event of Default, the Agent
shall give prompt notice thereof to the Banks. The Agent shall (subject to Section
7.05 hereof) take such action with respect to such Default or Event of
Default as shall reasonably be directed by the Required Banks, provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interest of the Banks.


 


ARTICLE 8.

CHANGE IN CIRCUMSTANCES


 


Section 8.01                                Basis
for Determining Interest Rate Inadequate or Unfair. If on or prior to the
first day of any Interest Period for any Fixed Rate Borrowing:


 


(a)                                  the
Agent is advised by the Reference Banks that deposits in dollars (in the
applicable amounts) are not being offered to the Reference Banks in the
relevant market for such Interest Period, or


 


(b)                                 the
Agent determines (which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the interest rate for Euro-Dollar Loans for such
Interest Period; or


 


(c)                                  in
the case of a Committed Borrowing, Banks having 50% or more of the aggregate
amount of the Commitments advise the Agent that the Adjusted CD Rate or the
Adjusted London Interbank Offered Rate, as the case may be, as determined by
the Agent will not adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Dollar Loans, as the case may be, for such
Interest Period;


 


40













 


the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless
the Borrower notifies the Agent at least one Domestic Business Day before the
date of any Fixed Rate Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding
the last day of the Interest Period applicable thereto at the Base Rate for
such day.


 


Section 8.02                                Illegality.
If, on or after the date of this Agreement, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Bank shall so notify the Agent,
the Agent shall forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the Agent that
the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Euro-Dollar
Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, the Borrower shall, subject to Section
2.01, borrow a Base Rate Loan in an equal principal amount from such Bank
(on which interest and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and such Bank shall make such a
Base Rate Loan.


 


Section 8.03                                Increased
Cost and Reduced Return.


 


(a)                                  If
on or after (x) the date hereof in the case of any Committed Loan or any
obligation to make Committed Loans or (y) the date of the related Money Market
Quote, in the case of any Money Market Loan, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:


 


41













 


(i)                                     shall
subject any Bank (or its Applicable Lending Office) to any tax, duty or other
charge with respect to its Fixed Rate Loans, its Note, if any, or its
obligation to make Fixed Rate Loans, or shall change the basis of taxation of
payments to any Bank (or its Applicable Lending Office) of the principal of or
interest on its Fixed Rate Loans or any other amounts due under this Agreement
in respect of its Fixed Rate Loans or its obligation to make Fixed Rate Loans
(except for changes in the rate of tax on the overall net income of such Bank
or its Applicable Lending Office imposed by the jurisdiction in which such Bank’s
principal executive office or Applicable Lending Office is located); or


 


(ii)                                  shall
impose, modify or deem applicable any reserve (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding (A) with respect to any CD Loan any such requirement
included in an applicable Domestic Reserve Percentage  and (B) with respect to any Euro-Dollar Loan
any such requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD Loan,
any such requirement reflected in an applicable Assessment Rate) or similar
requirement against assets of deposits with or for the account of or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Note, if any, or its obligation to make
Fixed Rate Loans;


 


and the result of any of the foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any Fixed Rate
Loan, or to reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under its Note, if
any, with respect thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.


 


(b)                                 If
any Bank shall have determined that, after the date hereof the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change in
any such law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on capital of such Bank
(or its Parent) as a consequence of such Bank’s obligations hereunder to a
level below that which such Bank (or its Parent) could have achieved but for
such adoption, change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, within 15 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its Parent) for such reduction.


 


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(c)                                  Each
Bank will promptly notify the Borrower and the Agent of any event of which it
has knowledge, occurring after the date hereof which will entitle such Bank to
compensation pursuant to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce the
amount of such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.


 


Section 8.04                                Base
Rate Loans Substituted for Affected Fixed Rate Loans. If (a) the obligation
of any Bank to make, maintain or convert to Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (b) any Bank has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least five
Euro-Dollar Business Days’ prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist:


 


(a)                                  all
Loans which would otherwise be made, maintained or converted by such Bank as CD
Loans or Euro-Dollar Loans, as the case may be, shall be made, maintained or
converted instead as Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Banks), and


 


(b)                                 after
each of its CD Loans or Euro-Dollar Loans, as the case may be, has been repaid
or converted, all payments of principal which would otherwise be applied to
repay such Fixed Rate Loans shall be applied to repay its Base Rate Loans
instead.


 


ARTICLE 9.

MISCELLANEOUS


 


Section 9.01                                Notices.
All notices, requests and other communications to any party hereunder shall be
in writing (including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party: (a) in the case of the Borrower or
the Agent, at its address, facsimile number set forth on the signature pages
hereof, (b) in the case of any Bank, at its address, facsimile number set forth
in its Administrative Questionnaire or (c) in the case of any party, such other
address, facsimile number as such party may hereafter specify for the purpose
by notice to the Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by mail, upon receipt, (ii) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified in this Section and receipt of such facsimile is
confirmed, either orally or in writing by return facsimile to the transmitting
party at the facsimile number specified in this Section, by the party receiving
such transmission, or (iii) if given by any other means, when delivered at the
address specified in this Section; provided that
notices to the Agent under Article 2 or Article 8 shall not be
effective until received.


 


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Notwithstanding any other provision of this Section
9.01, in the case of any communication required by Section 5.01, in
addition to the methods of delivery described above, any such communication may
be made by the posting of such financial statements, reports, officer’s
certificates or other information to an Internet website established by the
Agent with IntraLinks, Inc. or other similarly available electronic media (a “Posting Website”) or, in the case of
information required under Sections 5.01(a), (b), (f) and (g)
only, by the posting on the Posting Website of the universal resource locator
(URL) where such information may be obtained. Upon the initial establishment of
the Posting Website, the Agent shall give notice to each Bank of the URL for
the Posting Website in writing by mail or facsimile transmission as described
above. Each communication made by the Borrower pursuant to the second preceding
sentence shall be deemed to have been delivered when the information contained
therein is posted to the Posting Website.


 


Section 9.02                                No
Waivers. No failure or delay by the Agent or any Bank in exercising any
right, power or privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.


 


Section 9.03                                Expenses;
Documentary Taxes; Indemnification.


 


(a)                                  The
Borrower shall pay (i) all reasonable out-of-pocket expenses of the Agent,
including reasonable fees and disbursements of special counsel for the Agent,
in connection with the preparation of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-of-pocket expenses
incurred by the Agent and each Bank, including reasonable fees and
disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency, and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify each Bank against any transfer taxes,
documentary taxes, assessments or charges made by any governmental authority by
reason of the execution and delivery of this Agreement or the Notes, if any.


 


(b)                                 The
Borrower agrees to indemnify the Agent and each Bank, their respective
affiliates and the respective directors, officers, agents, attorneys and
employees of the foregoing (each an “Indemnitee”)
and hold each Indemnitee harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind, including, without limitation,
the reasonable fees and disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party thereto)
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder (the “Indemnified Liabilities”);
provided that no Indemnitee shall have
the right to be indemnified hereunder for such Indemnitee’s own gross
negligence or willful misconduct. No Indemnitee shall be liable for any damages
arising from the use by others of information or other materials obtained
through internet, Posting Website or other similarly available electronic media
in connection with the electronic posting of financial statements,
certificates, reports or other information to a


 


44













 


Posting
Website as provided for in Section 9.01 hereof unless such Indemnitee
has engaged in gross negligence or willful misconduct.


 


Section 9.04                                Sharing
of Set-Off. Each Bank agrees that if it shall, by exercising any right of
set-off, recoupment, counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal and interest then due with respect to any
Loans held by it which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest then due with
respect to any Loans held by such other Bank, the Bank receiving such
proportionately greater payment (the “Benefited Bank”)
shall purchase such participations in the Loans held by the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Loans held by the Banks
shall be shared by the Banks pro rata; provided, however, that if all or any portion of such excess payment
is thereafter recovered from such Benefited Bank or is repaid in whole or in
part by such Benefited Bank in good faith settlement of a pending or threatened
avoidance claim, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery or settlement payment, but
without interest; further  provided
that nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under this Agreement. The Borrower agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of a
participation in a Loan, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.


 


Section 9.05                                Amendments
and Waivers. Any provision of this Agreement or the Notes, if any, may be
amended or waived if, but only if, such amendment or waiver is in writing and
is signed by the Borrower and the Required Banks (and, if the rights or duties
of the Agent are affected thereby, by the Agent); provided
that no such amendment or waiver shall, unless signed by all the Banks, (a)
increase or decrease the Commitment of any Bank (except for a ratable decrease
in the Commitments of all Banks and except for any increase in Commitments made
pursuant to, and in compliance with, Sections 2.17 and 2.18, as
applicable, hereof) or subject any Bank to any additional obligation, (b)
reduce the principal of or rate of interest on any Loan or any fees or margins
hereunder, (c) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for the Termination Date (except
pursuant to, and in compliance with Section 2.18 hereof), (d) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Loans, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement, (e) consent to the assignment or transfer by the Borrower of any of
its rights or obligations under this Agreement or (f) amend, modify or waive Section
9.04 or this Section 9.05.


 


Section 9.06                                Successors
and Assigns.


 


(a)                                  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
Agent and each Bank, and no Bank may assign or otherwise transfer any of its
rights or


 


45













 


obligations
hereunder except (i) to an Assignee in accordance with the provisions of subsection
(c) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (b) of this Section, or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(d) or (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 (b)
of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


(b)                                 Any
Bank may at any time grant to one or more banks or other institutions (each a “Participant”) participating
interests in its Commitment or any or all of its Loans. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Borrower
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank’s rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (a), (b)
or (c) of Section 9.05 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article 8 with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).


 


(c)                                  Any
Bank may at any time assign to one or more banks, Approved Funds or other
institutions (each an “Assignee”)
all, or a proportionate part of all, of its rights and obligations under this
Agreement and its Notes, if any, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit I hereto (an “Assignment
and Assumption Agreement”) executed by such Assignee and such
transferor Bank, with and subject to (so long as an Event of Default has not
occurred and is continuing) the subscribed consent of the Borrower, which
consent shall not be unreasonably withheld or delayed, and with the subscribed
acknowledgment of the Agent; provided that
(i) such assignment may, but need not, include rights of the transferor Bank in
respect of outstanding Money Market Loans and (ii) no interest may be assigned
by a Bank pursuant to this subsection (c) in an amount less than
$15,000,000 unless such lesser amount constitutes all of such assigning Bank’s
Commitment. Notwithstanding the foregoing, if an Assignee is an affiliate of
such transferor Bank or a Bank, (x) the subscribed consent of the Borrower
shall not be required and (y) the limitations set forth


 


46












 


in
clause (ii) above shall not be applicable. In all cases, any assignment
to any Approved Fund requires the consent of the Borrower. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, such Assignee shall be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank with a Commitment as
set forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection (c), the transferor Bank,
the Agent and the Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. Except as otherwise provided
herein, in connection with any such assignment, the transferor Bank shall pay
to the Agent an administrative fee for processing such assignment in the amount
of $3,500, unless waived by the Agent in its sole discretion. If the Assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 2.15.


 


The Agent, acting solely for this purpose as
an Agent of the Borrower, shall maintain at the Agent’s principal office a copy
of each Assignment and Assumption Agreement delivered to it and a register for
the recordation of the names and addresses of the Banks, and the Commitments
of, and principal amounts of the Loans owing to, each Bank pursuant to the
terms hereof from time to time (the “Register”).
The entries in the Register as to the identity of the Banks and their
respective Commitments shall be conclusive absent manifest error, and the
Borrower, the Agent and the Banks may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Bank, 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 this Agreement is pending, any Bank wishing to consult
with other Banks in connection therewith may request and receive from the Agent
a copy of the Register.


 


(d)                                 Any
Bank may at any time assign all or any portion of its rights under this
Agreement and its Note, if any, to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.


 


(e)                                  No
Assignee, Participant or other transferee of any Bank’s rights shall be
entitled to receive any greater payment under Section 8.03 than such
Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower’s prior written
consent or by reason of the provisions of Section 8.02 or 8.03
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.


 


(f)                                    Notwithstanding
anything to the contrary contained herein, any Bank that is an Approved Fund
may create a security interest in all or any portion of the Loans owing to it
and the Note, if any, held by it to the trustee for the holders of obligations


 


47













 


owed,
or securities issued, by such Fund as security for such obligations or
securities, provided that unless and until such
trustee actually becomes a Bank in compliance with the other provisions of Section
9.06(c), (i) no such pledge shall release the pledging Bank from any of its
obligations under this Agreement and (ii) such trustee shall not be entitled to
exercise any of the rights of a Bank under this Agreement, including but not
limited to rights to approve amendments, waivers or other modifications of any
provision of this Agreement, even though such trustee may have acquired
ownership rights with respect to the pledged interest through foreclosure or
otherwise.


 


(g)                                 The
words “execution”, “signed”, “signature”, and words of like import in any
Assignment and Assumption Agreement 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.


 


Section 9.07                                Collateral.
Each of the Banks represents to the Agent and each of the other Banks that it
in good faith is not relying upon any “margin stock” (as defined in Regulation
U) as collateral in the extension or maintenance of the credit provided for in
this Agreement.


 


Section 9.08                                Replacement
of Banks. (a)  If any Bank requests
compensation under Section 8.03, or if the obligation of any Bank to
make Euro-Dollar Loans has been suspended pursuant to Section 8.02, or
if any Bank is a Defaulting Bank, or if any Bank is a Non-Extending Bank for
any extension of the Termination Date, then the Borrower may, at its sole
expense and effort, upon notice to such Bank and the Agent, require such Bank
to assign and delegate without unreasonable delay, without recourse (in
accordance with and subject to the restrictions contained in, and consents required
by, Section 9.06), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which
assignee may be another Bank, if a Bank accepts such assignment), provided that:


 


(i)                                     the
Borrower shall have paid to the Agent the assignment fee specified in Section
9.06(c) (except as otherwise provided herein); provided
that any Defaulting Bank that has on more than one occasion failed to fund any
portion of the Loans required to be funded by it hereunder within one Domestic
Business Day of the date required to be funded by it hereunder shall pay to the
Agent the assignment fee specified in Section 9.06(c);


 


(ii)                                  such
Bank shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder (including any amounts under Section 2.13)
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);


 


(iii)                               in the case of any such
assignment resulting from a claim for compensation by a Bank under Section
8.03, such assignment will result in a


 


48













 


reduction
in such compensation or payments that would otherwise result thereafter; and


 


(iv)                              such
assignment does not conflict with applicable laws.


 


A Bank shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such
Bank or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.


 


(b)                                 In
the event any Bank fails to approve any amendment, waiver or consent requested
by the Borrower pursuant to Section 9.05 that has received the written
approval of not less than the Required Banks but also requires the approval of
such Bank (any such Bank, a “Restricted Bank”),
so long as no Default or Event of Default shall have occurred and be continuing
and the Borrower has obtained a commitment (in an amount not less than the
entire amount of such Restricted Bank’s Commitment) from one or more Banks or
Assignees to become a Bank for all purposes hereunder (such Bank or Banks
referred to as the “Replacement Bank”), the
Borrower may cause such Restricted Bank to be replaced by, and to assign all
its rights and obligations under this Agreement (including its Commitment and
its outstanding Loans) pursuant to Section 9.06 to, such Replacement
Bank. Such Restricted Bank agrees to execute and to deliver to the Agent one or
more Assignment and Assumption Agreements with such Replacement Bank as
provided in Section 9.06 upon payment at par of all principal, accrued
interest, accrued fees and other amounts accrued or owing under this Agreement
to such Restricted Bank, and such Replacement Bank shall pay to the Agent the
assignment fee specified in Section 9.06(c) in connection with such
assignment. The Restricted Bank making such assignment will be entitled to
compensation for any expenses or other amounts which would be owing to such
Restricted Bank pursuant to any indemnification provision hereof (including, if
applicable, Section 2.13) as if the Borrower had prepaid the Loans of
such Bank (and terminated its Commitment, if applicable) rather than such
Restricted Bank having assigned its interest hereunder.


 


(c)                                  In
each case of clause (a) and (b) above, the Agent shall distribute
an amended schedule of Commitments, which shall be deemed incorporated into
this Agreement, to reflect changes in the identities of the Banks and
adjustments of their respective Commitments and/or shares thereof resulting
from any such replacement.


 


(d)                                 This
section shall supersede any provision in Section 9.05 to the contrary.


 


Section 9.09                                Governing
Law; Submission to Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the State of New York.
The Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Borrower irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum.


 


49













 


Section 9.10                                Counterparts;
Integration. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement constitutes
the entire agreement and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or written, relating to
the subject matter hereof.


 


Section 9.11                                Confidentiality.
Each Bank agrees to exercise all reasonable efforts to keep any Information
delivered or made available by the Borrower to it which is clearly indicated to
be confidential information, confidential from anyone other than Persons
employed or retained by such Bank who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans; provided that nothing herein shall prevent any Bank from
disclosing such Information (a) to any of its affiliates or any other Bank or
affiliate thereof, (b) to its officers, directors, employees, agents, attorneys
and accountants who have a need to know such Information in accordance with
customary banking practices and who receive such Information having been made
aware of the restrictions set forth in this Section, (c) upon the order of any
court or administrative agency, (d) upon the request or demand of any
regulatory agency or authority having jurisdiction over such Bank or its
affiliates, (e) as required by any applicable law, rule or regulation, (f) to
any other Person if reasonably necessary to the administration of the credit
facility provided herein, (g) which has been publicly disclosed, (h) to the
extent reasonably required in connection with any litigation to which the
Agent, any Bank, the Borrower or their respective affiliates may be a party,
(i) to the extent reasonably required in connection with the exercise of any
remedy hereunder, (j) to such Bank’s legal counsel and independent auditors,
(k) with the prior written consent of the Borrower, and (l) to any actual or
proposed Participant or Assignee of all or part of its rights hereunder which
has agreed in writing to be bound by the provisions of this Section. For
purposes of this Section, “Information”
means all information received from the Borrower relating to the Borrower or
any of its business, other than any such information that is available to the
Agent or any Bank on a nonconfidential basis prior to disclosure by the
Borrower, provided that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential.


 


Section 9.12                                USA
PATRIOT Act Notice. Each Bank that is subject to the Act (as hereinafter
defined) and the Agent (for itself and not on behalf of any Bank) 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 Bank or the Agent, as applicable, to identify the Borrower in
accordance with the Act.


 


[remainder of page intentionally left blank]


 


50













 


IN WITNESS WHEREOF, the parties hereto have
caused this Five-Year Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
  WITNESS:

  	
  TARGET CORPORATION

  
	
   

  	
   

  	
   

  
	
  /s/ Jeff Vanmeter

  	
   

  	
  By:

  	
    /s/ Sara Ross

  	
   

  
	
   

  	
  Name:

  	
  Sara J. Ross

  
	
  /s/ Wendy Mahling

  	
   

  	
  Title:

  	
  Assistant Treasurer

  
	
   

  	
  1000 Nicollet Mall

  
	
   

  	
  Minneapolis, Minnesota 55403

  
	
   

  	
  Attention: Assistant Treasurer

  
	
   

  	
  Telecopy Number: (612) 761-5573

  
							



 


51













 


	
   

  	
  BANKS:

  
	
   

  	
   

  
	
  $_______________

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ross Evans

  	
   

  
	
   

  	
  Name:

  	
  Ross Evans

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Christine Herrick

  	
   

  
	
   

  	
  Name:

  	
  Christine Herrick

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  CITICORP USA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Marc Merlino

  	
   

  
	
   

  	
  Name:

  	
  Marc Merlino

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michael J. Staloch

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Staloch

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 













 


	
  $_______________

  	
  WACHOVIA BANK, NATIONAL

  
	
   

  	
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Beth Rue

  	
   

  
	
   

  	
  Name:

  	
  Beth Rue

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  BANK OF TOKYO-MITSUBISHI, LTD.,

  
	
   

  	
  CHICAGO BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Matthew A. Ross

  	
   

  
	
   

  	
  Name:

  	
  Matthew A. Ross

  
	
   

  	
  Title:

  	
  Vice President & Manager

  



 













 


	
  $_______________

  	
  LEHMAN BROTHERS BANKS, FSB

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Janine M. Shugan

  	
   

  
	
   

  	
  Name:

  	
  Janine M. Shugan

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 













 


	
  $_______________

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Derek Befus

  	
   

  
	
   

  	
  Name:

  	
  Derek Befus

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  WILLIAM STREET COMMITMENT

  CORPORATION (recourse only to the

  assets of William Street Commitment

  Corporation)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Mark Walton

  	
   

  
	
   

  	
  Name:

  	
  Mark Walton

  
	
   

  	
  Title:

  	
  Assistant Vice President

  



 













 


	
  $_______________

  	
  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Raymond Ventura

  	
   

  
	
   

  	
  Name:

  	
  Raymond Ventura

  
	
   

  	
  Title:

  	
  Deputy General Manager

  



 













 


	
  $_______________

  	
  WELLS FARGO BANK, NATIONAL

  
	
   

  	
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Mark H. Halldorson

  	
   

  
	
   

  	
  Name:

  	
  Mark H. Halldorson

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  HSBC BANK USA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Sam Opitz

  	
   

  
	
   

  	
  Name:

  	
  Sam Opitz

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  BNP PARIBAS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Curtis Price

  	
   

  
	
   

  	
  Name:

  	
  Curtis Price

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Christopher Grumboski

  	
   

  
	
   

  	
  Name:

  	
  Christopher Grumboski

  
	
   

  	
  Title:

  	
  Director

  



 













 


	
  $_______________

  	
  STATE STREET BANK AND TRUST

  
	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ 
  Fred Epstein

  	
   

  
	
   

  	
  Name:

  	
  Fred Epstein

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kelly Gunter

  	
   

  
	
   

  	
  Name:

  	
  Kelly Gunter

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  FIFTH THIRD BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Christopher Motley

  	
   

  
	
   

  	
  Name:

  	
  Christopher Motley

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
  $_______________

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Douglas Bernegger

  	
   

  
	
   

  	
  Name:

  	
  Douglas Bernegger

  
	
   

  	
  Title:

  	
  Director

  



 













 


	
  $_______________

  	
  FORTIS CAPITAL CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Egensmichael Van Iterson

  	
   

  
	
   

  	
  Scholten

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Egensmichael Van Iterson

  
	
   

  	
   

  	
  Scholten

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Timothy Streb

  	
   

  
	
   

  	
  Name:

  	
  Timothy Streb

  
	
   

  	
  Title:

  	
  Managing Director

  
							



 













 


	
  $_______________

  	
  PNC BANK, NA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Benjamin Kline

  	
   

  
	
   

  	
  Name:

  	
  Benjamin Kline

  
	
   

  	
  Title:

  	
  Credit Officer

  



 













 


	
  $_______________

  	
  MELLON BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Daniel J. Lenckos

  	
   

  
	
   

  	
  Name:

  	
  Daniel J. Lenckos

  
	
   

  	
  Title:

  	
  First Vice President

  



 













 


	
  $_______________

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Alex Nikolov

  	
   

  
	
   

  	
  Name:

  	
  Alex Nikolov

  
	
   

  	
  Title:

  	
  Second-Vice President

  



 













 


	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/     Don B.
  Pinzon

  	
   

  
	
   

  	
  Name:

  	
  Don B. Pinzon

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Agency Management Group

  
	
   

  	
  335 Madison Avenue, 4th Floor

  
	
   

  	
  Mail Code: NY1-503-04-03

  
	
   

  	
  New York, New York 10017

  
	
   

  	
  Attention: Vice President

  
	
   

  	
  Telecopy Number: (212) 901-7843

  



 













 


	
   

  	
  SYNDICATION AGENT:

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,
  as

  Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Christine Herrick

  	
   

  
	
   

  	
  Name:

  	
  Christine Herrick

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


	
   

  	
  CO-DOCUMENTATION AGENTS:

  
	
   

  	
   

  
	
   

  	
  CITICORP USA, INC.,   as

  Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Marc Merlino

  	
   

  
	
   

  	
  Name:

  	
  Marc Merlino

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL

  ASSOCIATION, as Co-Documentation

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michael J. Staloch

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Staloch

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION, as Co-Documentation

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Beth Rue

  	
   

  
	
   

  	
  Name:

  	
  Beth Rue

  
	
   

  	
  Title:

  	
  Vice President

  



 













 


SCHEDULE
I:  SENIOR
MANAGING AGENTS AND MANAGING AGENTS


 


SENIOR MANAGING AGENTS:


 


THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH


LEHMAN BROTHERS BANKS, FSB


MERRILL LYNCH BANK USA


WILLIAM STREET COMMITMENT CORPORATION


MIZUHO CORPORATE BANK, LTD.


WELLS FARGO BANK, NATIONAL ASSOCIATION


 


 


MANAGING AGENTS:


 


HSBC BANK USA


BNP PARIBAS


 


S-I













 


SCHEDULE
II: 
CO-AGENTS


 


FIFTH THIRD BANK


SUNTRUST BANK


STATE STREET BANK AND TRUST COMPANY


 


S-II













 


EXHIBIT A


 


NOTE


 


[__________, __________]


_______ __, 2007


 


For value received, Target Corporation, a
Minnesota corporation (the “Borrower”), promises to pay to
the order of ________________ (the “Bank”), for the account of its
Applicable Lending Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred to below on the
last day of the Interest Period relating to such Loan. The Borrower promises to
pay interest on the unpaid principal amount of each such Loan on the dates and
at the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Bank of America,
N.A., Mail Code: CA4-702-02-25 Building B, 2001 Clayton Road, Concord,
California  94520-2405.


 


All Loans made by the Bank, the respective
types and maturities thereof and all repayments of the principal thereof shall
be recorded by the Bank and, if the Bank so elects in connection with any
transfer or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed by
the Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.


 


This note is one of the Notes referred to in
the Five-Year Credit Agreement dated as of April 12, 2007 among the Borrower,
the Banks party thereto, the Senior Managing Agents, Managing Agents,
Co-Agents, Co-Documentation Agents and Syndication Agent listed therein and
Bank of America, N.A., as Agent (as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Terms defined in the Credit Agreement are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the prepayment hereof and
the acceleration of the maturity hereof.


 


[Signature page follows.]


 


A-1













 


	
   

  	
  TARGET CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


A-2













 


Note
(Cont’d)


 


LOANS AND
PAYMENTS OF PRINCIPAL


 


	
   

  	
   

  	
  Principal

  	
   

  	
   

  	
   

  	
  Amount of

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Amount
  of

  	
   

  	
  Type
  of

  	
   

  	
  Principal

  	
   

  	
  Maturity

  	
   

  	
  Notation

  	
   

  
	
  Date

  	
   

  	
  Loan

  	
   

  	
  Loan

  	
   

  	
  Repaid

  	
   

  	
  Date

  	
   

  	
  Made
  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-3













 


EXHIBIT B


 


FORM OF
MONEY MARKET QUOTE REQUEST


 


[Date]


 


To:                              Bank
of America, N.A. (the “Agent”)


 


From:                  Target
Corporation


 


Re:                               Five-Year Credit Agreement
(the “Credit Agreement”)
dated as of April 12, 2007 among the Borrower, the Banks party thereto, the
Senior Managing Agents, Managing Agents, Co-Agents, Co-Documentation Agents and
Syndication Agent listed therein and the Agent


 


We hereby give notice pursuant to Section
2.03 of the Credit Agreement that we request Money Market Quotes for the
following proposed Money Market Borrowing(s):


 


Date of Borrowing:                                                                                                                                                                                                                                           


 


Principal Amount*                                                                                                                                                                                                                                                                                            Interest
Period**


 


$


 


Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The
applicable base rate is the London Interbank Offered Rate.]


 


Terms used herein have the meanings assigned
to them in the Credit Agreement.


 


	
   

  	
  TARGET CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 






 


* Amount must be $25,000,000 or a larger multiple of $5,000,000.


 


** Not less than one month (LIBOR Auction) or not less than 14 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.


 


B-1













 


EXHIBIT C


 


FORM OF
INVITATION FOR MONEY MARKET QUOTES


 


[Date]


 


To:                              [Name
of Bank]


 


Re:                               Invitation
for Money Market Quotes


to Target Corporation (the “Borrower”)


 


Pursuant to Section 2.03 of the
Five-Year Credit Agreement dated as of April 12, 2007 among the Borrower, the
Banks party thereto, the Senior Managing Agents, Managing Agents, Co-Agents,
Co-Documentation Agents and Syndication Agent listed therein and the
undersigned, as Agent, we are pleased on behalf of the Borrower to invite you
to submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):


 


Date of Borrowing:                                                                                                                                                                                                                                           


 


Principal Amount                                                                                                                                                                                                                                                   Interest
Period


 


$


 


Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The
applicable base rate is the London Interbank Offered Rate.]


 


Please respond to this invitation by no later
than [2:00 P.M.] [9.15 A.M.] (New York City time) on [date].


 


 


	
   

  	
  BANK OF AMERICA, N.A., as Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Authorized
  Officer

  



 


C-1













 


EXHIBIT D


 


FORM OF
MONEY MARKET QUOTE


 


BANK OF AMERICA, N.A.


Agency Services


Mail Code:
CA4-702-02-25


Building B


2001 Clayton Road


Concord, California  94520-2405


 


Attention: ____________________


 


Re:                               Money
Market Quote to


Target Corporation (the “Borrower”)


 


In response to your invitation on behalf of
the Borrower dated ________, ____, we hereby make the following Money Market
Quote on the following terms:


 


1.                                       Quoting
Bank:                                                                                                                                                                                                                                                                   


 


2.                                       Person
to contact at Quoting Bank:                                                                                                                                                                                                                                                     


 


3.                                       Date
of Borrowing:                                                                                                                                                                                           *


 


4.                                       We hereby offer
to make Money Market Loan(s) in the following principal amounts, for the
following Interest Periods and at the following rates:


 


 


 






* As specified in the related Invitation.


 


D-1













 


	
  Principal

  	
   

  	
  Interest

  	
   

  	
  Money Market

  	
   

  	
  [Absolute

  
	
  Amount**

  	
   

  	
  Period***

  	
   

  	
  [Margin]****

  	
   

  	
  Rate]*****

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[Provided, that the aggregate principal
amount of Money Market Loans for which the above offers may be accepted shall
not exceed $__________.]**


 


We understand and agree that the offer(s) set
forth above, subject to the satisfaction of the applicable conditions set forth
in the Five-Year Agreement dated as of April 12, 2007 among the Borrower, the
Banks party thereto, the Senior Managing Agents, Managing Agents, Co-Agents,
Co-Documentation Agents and Syndication Agent listed therein and yourselves, as
Agent, irrevocably obligates us to make the Money Market Loan(s) for which any
offer(s) are accepted, in whole or in part.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF BANK]

  
	
   

  	
   

  
	
  Dated:

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  



 


 






 


** Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids must be
made for $5,000,000 or a larger multiple of $1,000,000.


 


*** Not less than one month or not less than 14 days, as specified in
the related invitation. No more than five bids are permitted for each Interest
Period.


 


**** Margin over or under the London Interbank Offered Rate determined
for the applicable Interest Period. Specify percentage (to the nearest 1/10,000
of 1%) and specify whether “PLUS” or “MINUS”.


 


***** Specify rate of interest per annum (to the nearest 1/10,000th of
1%).


 


D-2













 


EXHIBIT E


 


FORM OF COMMITMENT INCREASE AGREEMENT


 


Date: ___________________


 


Bank of America, N.A.,


as Agent


Mail Code:
CA4-702-02-25


Building B


2001 Clayton Road


Concord, California  94520-2405


 


Target Corporation


1000 Nicollet Mall


Minneapolis, Minnesota 55403


 


Ladies and Gentlemen:


 


We refer to the Five-Year Agreement dated as
of April 12, 2007 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”) among Target
Corporation, a Minnesota corporation (the “Borrower”), the Banks referred
to therein, the Senior Managing Agents, Managing Agents, Co-Agents,
Co-Documentation Agents and Syndication Agent referred to therein and Bank of
America, N.A., as administrative agent (in such capacity, the “Agent”). Terms
defined in the Credit Agreement are used herein as therein defined.


 


This Commitment Increase Agreement is made
and delivered pursuant to Section 2.17 of the Credit Agreement.


 


Subject to the terms and conditions of Section
2.17 of the Credit Agreement, _______________________________ (“Increasing Bank”)
will increase its Commitment to an amount equal to $___________, on the
Increased Commitment Date applicable to it. The Increasing Bank hereby confirms
and agrees that with effect on and after such Increased Commitment Date, the
Commitment of the Increasing Bank shall be increased to the amount set forth
above, and the Increasing Bank shall have all of the rights and be obligated to
perform all of the obligations of a Bank under the Credit Agreement with a
Commitment in the amount set forth above.


 


Effective the on the Increased Commitment
Date applicable to it, the Increasing Bank (i) accepts and assumes from
the assigning Banks, without recourse, such assignment of Committed Loans as
shall be necessary to effectuate the adjustments in the pro rata shares of
Banks contemplated by Section 2.17 of the Credit Agreement, and (ii)
agrees to fund on such Increased Commitment Date such assumed amounts of
Committed Loans to Agent for the account of the assigning Banks in accordance
with the provisions of the Credit Agreement, in the amount notified to
Increasing Bank by Agent.


 


E-1













 


THIS COMMITMENT INCREASE AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK, NOTWITHSTANDING ITS EXECUTION OUTSIDE SUCH STATE.


 


IN WITNESS WHEREOF, Increasing Bank has
caused this Commitment Increase Agreement to be duly executed and delivered in
_____________, ______________, by its proper and duly authorized officer as of
the day and year first above written.


 


	
   

  	
  [INCREASING BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  CONSENTED TO as of

  	
   

  	
  :

  
	
   

  	
   

  
	
  TARGET CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A.,

  	
   

  
	
  as Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
								



 


E-2













 


EXHIBIT F


 


FORM OF ADDED BANK AGREEMENT


 


Date: ___________________


 


Bank of America, N.A.,


as Agent


Mail Code:
CA4-702-02-25


Building B


2001 Clayton Road


Concord, California  94520-2405


 


Target Corporation


1000 Nicollet Mall


Minneapolis, Minnesota 55403


 


Ladies and Gentlemen:


 


We refer to the Five-Year Credit Agreement
dated as of April 12, 2007 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”) among Target
Corporation, a Minnesota corporation (the “Borrower”), the Banks referred
to therein, the Senior Managing Agents, Managing Agents, Co-Agents,
Co-Documentation Agents and Syndication Agent referred to therein and Bank of
America, N.A., as administrative agent (in such capacity, the “Agent”). Terms
defined in the Credit Agreement are used herein as therein defined.


 


This Added Bank Agreement is made and
delivered pursuant to Section 2.17 of the Credit Agreement.


 


Subject to the terms and conditions of Section
2.17 of the Credit Agreement, _________________________ (the “Added Bank”)
will become a party to the Credit Agreement as a Bank, with a Commitment equal
to $___________, on the Increased Commitment Date applicable to it. The Added
Bank hereby confirms and agrees that with effect on and after such Increased
Commitment Date, the Added Bank shall be and become a party to the Credit
Agreement as a Bank and have all of the rights and be obligated to perform all
of the obligations of a Bank thereunder with a Commitment in the amount set
forth above.


 


Effective the on the Increased Commitment
Date applicable to it, the Added Bank (i) accepts and assumes from the
assigning Banks, without recourse, such assignment of Committed Loans as shall
be necessary to effectuate the adjustments in the pro rata shares of the Banks
contemplated by Section 2.17 of the Credit Agreement, and (ii) agrees to
fund on such Increased Commitment Date such assumed amounts of Committed Loans
to Agent for the account of the assigning Banks in accordance with the
provisions of the Credit Agreement, in the amount notified to the Added Bank by
the Agent.


 


F-1













 


The following administrative details apply to
the Added Bank:


 


(A)                              Lending
Office(s):


 


	
  Bank name:

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
  Telephone:

  	
  (    )

  
	
  Facsimile:

  	
  (    )

  
	
   

  	
   

  
	
  Bank name:

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
  Telephone:

  	
  (    )

  
	
  Facsimile:

  	
  (    )

  



 


(B)                                Notice
Address:


 


	
  Bank name:

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
  Telephone:

  	
  (    )

  
	
  Facsimile:

  	
  (    )

  



 


(C)                                Payment
Instructions:


 


	
  Account No.:

  	
   

  
	
  At:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Reference:

  	
   

  
	
  Attention:

  	
   

  



 


THIS ADDED BANK AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, NOTWITHSTANDING ITS
EXECUTION OUTSIDE SUCH STATE.


 


F-2













 


IN WITNESS WHEREOF, the Added Bank has caused
this Added Bank Agreement to be duly executed and delivered in _____________,
______________, by its proper and duly authorized officer as of the day and
year first above written.


 


	
   

  	
  [ADDED BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  CONSENTED TO as of

  	
   

  	
  :

  
	
   

  	
   

  
	
  TARGET CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A.,

  	
   

  
	
  as Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
								



 


F-3













 


EXHIBIT G


 


OPINION
OF


COUNSEL
FOR THE BORROWER


 


__________, 2007


 


To the Banks and the Agent


Referred to Below


c/o Bank of America, N.A., as Agent


100 N. Tryon Street


Charlotte, North Carolina 28255-0001


 


Dear Ladies and Gentlemen:


 


I am Executive Vice President and General
Counsel of Target Corporation (the “Borrower”), and I have acted as
counsel to the Borrower in connection with the Five-Year Credit Agreement (the “Credit Agreement”)
dated as of April 12, 2007 among the Borrower, the banks listed on the
signature pages thereof (the “Banks”), the Senior Managing
Agents (the “Senior
Managing Agents”), Managing Agents (the “Managing Agents”),
Co-Agents (the “Co-Agents”), Co-Documentation
Agents (the “Co-Documentation Agents”) and
Syndication Agent (the “Syndication Agent”) listed
therein and Bank of America, N.A., as Agent (in such capacity, the “Agent”). As such
counsel, I, or the attorneys over whom I exercise supervision, have examined
(i) the Restated Articles of Incorporation of the Borrower, as amended to date;
(ii) the By-laws of the Borrower, as amended to date; and (iii) the corporate
proceedings of the Borrower relating to the Credit Agreement. I, or the
attorneys over whom I exercise supervision, have also examined certificates of
public officials and have made such other examinations as we have deemed
necessary to enable me to give the opinions herein expressed.


 


In our examination, I, and the attorneys over
whom I exercise supervision, have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity to, and authenticity of the originals of, all documents submitted to
us as certified, photostatic or conformed documents. In such examination we
have relied on certificates of public officials as to the incorporation, good
standing and valid existence of the Borrower, and, as to matters of fact, upon
inquiry of officers of the Borrower and the representations and warranties of
the Borrower contained in the Credit Agreement.


 


All terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.


 


Upon the basis of the foregoing, I am of the
opinion that:


 


1.                                       Each of the
Borrower and its Consolidated Subsidiaries is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction where, in light of the nature of the
business transacted or the property owned by it, such qualification is
necessary and the failure so to qualify might


 


G-1













 


permanently
impair title to property material to its operations or its right to enforce a
material contract against others, or expose it to substantial liability in such
jurisdiction.


 


2.                                       The Credit
Agreement and the Notes have been duly executed and delivered by Borrower to
the Agent. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower’s corporate powers, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the articles of incorporation or by-laws of the Borrower or
of any agreement or instrument evidencing or governing Debt of the Borrower or
any other material agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries.


 


3.                                       There is no
action, suit or proceeding pending against, or to the best of my knowledge
threatened against or affecting, the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official which
might reasonably be expected to materially adversely affect the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries or which in any manner draws into
question the validity of the Credit Agreement or the Notes.


 


This opinion letter is delivered solely to
the Banks, the Senior Managing Agents, the Managing Agents, the Co-Agents, the
Co-Documentation Agents, the Syndication Agent and the Agent, and may not be relied
upon by any other Person other than the addressees hereof, any successor or
assignee of any addressee (including successive assignees), Helms Mulliss &
Wicker, PLLC (who may rely upon this opinion as to matters of Minnesota law as
if this opinion were addressed to such firm) and any Person who shall acquire a
participation interest of any Bank (collectively, the “Reliance Parties”). This
opinion letter may be relied upon only in connection with matters related to
the Credit Agreement and then only as if it were delivered to the Reliance
Party on the date hereof. My opinions herein shall not be quoted or otherwise
included, summarized or referred to in any publication or document, in whole or
in part, for any purposes whatsoever, or furnished to any Person other than a
Reliance Party (or a Person considering whether to become a Reliance Party),
except as may be required of any Reliance Party, by applicable law, or
regulation or in accordance with any auditing or oversight function or request
of regulatory agencies to which a Reliance Party is subject.


 


Very truly yours,


 


G-2













 


EXHIBIT H


 


OPINION
OF


HELMS
MULLISS & WICKER, PLLC, SPECIAL COUNSEL


FOR THE
AGENT


 


__________, 2007


 


To the Banks and the Agent


Referred to Below


c/o Bank of America, N.A., as Agent


100 N. Tryon Street


Charlotte, North Carolina 28255-0001


 


Ladies and Gentlemen:


 


We have participated in the preparation of
the Five-Year Credit Agreement (the “Credit  Agreement”)
dated as of April 12, 2007 among Target Corporation, a Minnesota corporation
(the “Borrower”),
the banks listed on the signature pages thereof (the “Banks”), the Senior Managing
Agents, Managing Agents, Co-Agents, Co-Documentation Agents and Syndication
Agent listed therein and Bank of America, N.A., as the administrative agent (in
such capacity, the “Agent”), and have acted as
special counsel for the Agent for the purpose of rendering this opinion
pursuant to Section 3.01(d) of the Credit Agreement. Terms defined in
the Credit Agreement are used herein as therein defined.


 


We have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other instruments and
have conducted such other investigations of fact and law as we have deemed
necessary or advisable for purposes of this opinion.


 


Upon the basis of the foregoing, we are of
the opinion that the Credit Agreement constitutes a valid and binding agreement
of the Borrower and the Notes constitute valid and binding obligations of the
Borrower, except that, in each case, (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.


 


Our opinion is subject to the following
qualifications:


 


(a)                                  enforcement of the
obligations under the Credit Agreement and the Notes may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors’ rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at law);


 


(b)                                 we express no opinion
as to the effect on the opinion expressed herein of (i) the compliance or
non-compliance of any party to the Credit Agreement with any


 


H-1













 


state, federal or other laws or regulations applicable to it or (ii)
the legal or regulatory status or the nature of the business of any party;


 


(c)                                  we express no opinion
as to the enforceability of any rights to contribution, exculpation or
indemnification provided for in the Credit Agreement which purport to
indemnify, or provide exculpation to, a Person against the consequences of its
own negligence or willful misconduct or are violative of the public policy
underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation);


 


(d)                                 we express no opinion
with respect to any provision of the Credit Agreement that purports to select a
governing law in conflict with mandatory choice of law rules set forth in
Section 5-116 of the Uniform Commercial Code as in effect in the State of New
York (the “UCC”);


 


(e)                                  we express no opinion
as to the enforceability of any provision of the Credit Agreement that purports
to affect venue or the subject matter jurisdiction of courts, to waive the
right to a jury trial or to waive any objection a Person may have that a suit,
action or proceeding has been brought in an inconvenient forum;


 


(f)                                    we express no
opinion with respect to the validity, perfection or priority of any security
interest;


 


(g)                                 we express no opinion
with respect to any provision of the Credit Agreement to the extent it
authorizes or permits any purchaser of a participation interest to set-off or
apply any deposit, property or indebtedness with respect to any participation
interest;


 


(h)                                 our opinion with
respect to the enforceability of the choice of New York law and choice of New
York forum provisions of the Credit Agreement 
is rendered in reliance upon the Act of July 19, 1984, ch. 421, 1984
McKinney’s Sess. Laws of N.Y. 1406 (codified at N.Y. Gen. Oblig. Law §§
5-1401, 5-1402 (McKinney 1989) and N.Y. CPLR 327(b) (McKinney 1990)) and is
subject to the qualifications that such enforceability may be limited by public
policy considerations of any jurisdiction, other than the courts of the State
of New York, in which enforcement of such provisions, or of a judgment upon an
agreement containing such provisions, is sought;


 


(i)                                     we express no
opinion as to any state or federal securities law;


 


(j)                                     the opinion
expressed herein only considers the application of those laws and regulations
that, in our experience, are customarily applicable to transactions of the type
embodied by the Credit Agreement; and


 


(k)                                  we express no opinion
as to the effect of any possible judicial, administrative or other action
giving effect to, or which constitute, the actions of governmental authorities
or laws of any country other than the United States of America.


 


Certain members of the firm are members of
the Bar of the State of New York and the foregoing opinion is limited to the
laws of the State of New York and the federal laws of the


 


H-2













 


United States
of America. In giving the foregoing opinion, (i) we express no opinion as to
the effect (if any) of any law of any jurisdiction (except the State of New
York) in which any Bank is located which limits the rate of interest that such
Bank may charge or collect and (ii) we have relied, without independent
investigation, as to all matters governed by the laws of Minnesota, upon the
opinion of Timothy R. Baer, Esq., General Counsel for the Borrower, dated the
date hereof, a copy of which has been delivered to you.


 


This opinion letter is delivered solely to
the Banks, the Senior Managing Agents, the Managing Agents, the Co-Agents, the
Co-Documentation Agents, the Syndication Agent and the Agent, and may not be
relied upon by any other Person other than the addressees hereof, any successor
or assignee of any addressee (including successive assignees) and any Person
who shall acquire a participation interest of any Bank (collectively, the “Reliance Parties”). This
opinion letter may be relied upon only in connection with matters related to
the Credit Agreement and then only as if it were delivered to the Reliance
Party on the date hereof. Our opinions herein shall not be quoted or otherwise
included, summarized or referred to in any publication or document, in whole or
in part, for any purposes whatsoever, or furnished to any Person other than a
Reliance Party (or a Person considering whether to become a Reliance Party),
except as may be required of any Reliance Party by applicable law or regulation
or in accordance with any auditing or oversight function or request of
regulatory agencies to which a Reliance Party is subject.


 


Very truly yours,


 


H-3













 


EXHIBIT I


 


ASSIGNMENT
AND ASSUMPTION AGREEMENT


 


AGREEMENT dated as of _________, ____ among [ASSIGNOR]
(the “Assignor”),
[and] [ASSIGNEE] (the
“Assignee”),
[and TARGET CORPORATION  (the “Borrower”)].


 


WITNESSETH


 


WHEREAS, this Assignment and Assumption Agreement
(the “Agreement”)
relates to the Five-Year Credit Agreement dated as of April 12, 2007 among the
Borrower, the Assignor and the other Banks party thereto, as Banks, the Senior
Managing Agents, Managing Agents, Co-Agents, Co-Documentation Agents and
Syndication Agent listed therein, and Bank of America, N.A., as Agent (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the “Credit
Agreement”);


 


WHEREAS, as provided under the Credit
Agreement, the Assignor has a Commitment to make Loans to the Borrower for an
aggregate principal amount at any time outstanding not to exceed $___________;


 


WHEREAS, Committed Loans made to the Borrower
by the Assignor under the Credit Agreement in the aggregate principal amount of
$__________ are outstanding at the date hereof;


 


WHEREAS, the Assignor proposes to assign to
the Assignee all of the rights of the Assignor under the Credit Agreement in
respect of a portion of its Commitment thereunder in an amount equal to
$__________ (the “Assigned
Amount”), together with a corresponding portion of its
outstanding Committed Loans, and the Assignee proposes to accept assignment of
such rights and assume the corresponding obligations from the Assignor on such
terms;


 


NOW, THEREFORE, in consideration of the
foregoing and the mutual agreements contained herein, the parties hereto agree
as follows:


 


SECTION 1. Definitions.
All capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Credit Agreement.


 


SECTION 2. Assignment.
The Assignor hereby assigns and sells to the Assignee without recourse,
representation or warranty of any kind except as expressly stated below all of
the rights of the Assignor under the Credit Agreement to the extent of the
Assigned Amount, and the Assignee hereby accepts such assignment from the
Assignor and assumes all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, including the purchase from the
Assignor of the corresponding portion of the principal amount of the Committed
Loans made by the Assignor outstanding at the date hereof. Upon the execution
and delivery hereof by the Assignor[,
and] the Assignee[ and the Borrower], acknowledgment hereof by the Agent and
the payment of the amounts specified in Section 3 required to be paid on
the date hereof (a) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (b)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the


 


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Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.


 


SECTION 3. Payments.
As consideration for the assignment and sale contemplated in Section 2
hereof, the Assignee shall pay to the Assignor on the date hereof in Federal
funds the amount heretofore agreed between them.*  It is understood that facility fees accrued
to the date hereof with respect to the Assigned Amount are for the account of
the Assignor and such fees accruing from and including the date hereof are for
the account of the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party’s interest
therein and shall promptly pay the same to such other party.


 


[SECTION 4. Consent
of the Borrower. This Agreement is conditioned upon
the consent of the Borrower pursuant to Section 9.06(c) of the Credit
Agreement. The execution of this Agreement by the Borrower is evidence of this
consent. Pursuant to Section 9.06(c) the Borrower agrees to execute and
deliver a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.]


 


SECTION 5.
Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.


 


SECTION 6. Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.


 


SECTION 7.
Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.


 






 


*                                         Amount
should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.


 


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


 


	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [TARGET CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Title:]

  
	
   

  	
   

  
	
  Acknowledged by:

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A., as Agent

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
						



 


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EXHIBIT J





FORM OF
BORROWING NOTICE


 


To:                              Bank of America, N.A., as
Agent


Mail Code:
CA4-702-02-25


Building B


2001 Clayton Road


Concord, California  94520-2405


Attention: Agency Services


 


Reference is hereby made to the Five-Year
Credit Agreement dated as of April 12, 2007 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among Target
Corporation, a Minnesota corporation (the “Borrower”), the Banks referred
to therein, the Senior Managing Agents, Managing Agents, Co-Agents,
Co-Documentation Agents and Syndication Agent referred to therein and Bank of
America, N.A., as administrative agent (in such capacity, the “Agent”). Terms
defined in the Credit Agreement are used herein as therein defined.


 


The Borrower through its authorized
representative hereby gives notice to the Agent that Loans of the type and
amount set forth below be made on the date indicated:


 


	
  Type of Loan

  (check one)

  	
   

  	
  Interest Period(1)

  	
   

  	
  Aggregate Amount(2)

  	
   

  	
  Date of Loan(3)

  
	
    Base Rate Loan

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
    Euro-Dollar Loan

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
    CD Loan

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






 


(1)                                  For any Euro-Dollar
Loan, one, two, three or six months, and for any CD Loan, 30, 60, 90 or 180
days.


(2)                                  Must be $25,000,000
or if greater an integral multiple of $5,000,000.


(3)                                  At least three (3)
Domestic Business Days later if a Euro-Dollar Loan, and at least two (2)
Domestic Business Days later if a CD Loan.


 


The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows:    [insert transmittal instructions]  .


 


The undersigned hereby
certifies that all conditions contained in the Credit Agreement to the making
of any Loan requested hereby, including those conditions required under Section
3.02, have been met or satisfied in full.


 


	
   

  	
  TARGET CORPORATION

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
  TITLE:

  	
   

  	
   

  
	
   

  	
  DATE:

  	
   

  	
   

  
					



 


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