exv4w13






Exhibit 4.13


 


 

 






CUSIP Number: 25466DAA3




CREDIT AGREEMENT




Dated as of June 15, 2004,




among




DISCOVERY COMMUNICATIONS, INC.,

as Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent and L/C Issuer,




SUNTRUST BANK,

as Swing Line Lender,




The Other Lenders Party Hereto,




BANC OF AMERICA SECURITIES LLC,

WACHOVIA CAPITAL MARKETS, LLC,

and

TD SECURITIES (USA) INC.,

as Joint Lead Arrangers and Joint Book Managers,




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent,




and




TORONTO DOMINION (TEXAS), INC.,

CITIBANK, N.A.,

RBC CAPITAL MARKETS,

THE BANK OF NOVA SCOTIA,

and

THE ROYAL BANK OF SCOTLAND PLC,

as Documentation Agents.




 

 






 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	 
	 	 	 	 
	1.02 Other Interpretive Provisions
	 	 	26	 
	 
	 	 	 	 
	1.03 Accounting Terms
	 	 	27	 
	 
	 	 	 	 
	1.04 Exchange Rates; Currency Equivalents
	 	 	27	 
	 
	 	 	 	 
	1.05 Additional Alternative Currencies
	 	 	27	 
	 
	 	 	 	 
	1.06 Change of Currency
	 	 	28	 
	 
	 	 	 	 
	1.07 Times of Day
	 	 	29	 
	 
	 	 	 	 
	1.08 Letter of Credit Amounts
	 	 	29	 
	 
	 	 	 	 
	ARTICLE II. COMMITMENTS AND CREDIT EXTENSIONS
	 	 	29	 
	 
	 	 	 	 
	2.01 Revolving Loans; Term Loans; and Incremental Term Loans
	 	 	29	 
	 
	 	 	 	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	30	 
	 
	 	 	 	 
	2.03 Letters of Credit
	 	 	32	 
	 
	 	 	 	 
	2.04 Swing Line Loans
	 	 	42	 
	 
	 	 	 	 
	2.05 Prepayments
	 	 	45	 
	 
	 	 	 	 
	2.06 Termination or Reduction of Commitments
	 	 	46	 
	 
	 	 	 	 
	2.07 Repayment of Loans
	 	 	47	 
	 
	 	 	 	 
	2.08 Interest
	 	 	47	 
	 
	 	 	 	 
	2.09 Fees
	 	 	48	 
	 
	 	 	 	 
	2.10 Computation of Interest and Fees
	 	 	48	 
	 
	 	 	 	 
	2.11 Evidence of Debt
	 	 	49	 
	 
	 	 	 	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	49	 
	 
	 	 	 	 
	2.13 Sharing of Payments by Lenders
	 	 	51	 
	 
	 	 	 	 
	2.14 Increase in Revolving Commitments
	 	 	52	 
	 
	 	 	 	 
	2.15 Increases in Term Commitments
	 	 	53	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	54	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	54	 
	 
	 	 	 	 
	3.02 Illegality
	 	 	57	 
	 
	 	 	 	 
	3.03 Inability to Determine Rates
	 	 	57	 
	 
	 	 	 	 
	3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	58	 






-i-









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	Section	 	Page	 
	3.05 Compensation for Losses
	 	 	59	 
	 
	 	 	 	 
	3.06 Mitigation Obligations; Replacement of Lenders.
	 	 	60	 
	 
	 	 	 	 
	3.07 Survival
	 	 	60	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	61	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	61	 
	 
	 	 	 	 
	4.02 Conditions to all Credit Extensions
	 	 	62	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	63	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	63	 
	 
	 	 	 	 
	5.02 Authorization; No Contravention
	 	 	63	 
	 
	 	 	 	 
	5.03 Governmental Authorization; Other Consents
	 	 	64	 
	 
	 	 	 	 
	5.04 Binding Effect
	 	 	64	 
	 
	 	 	 	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	64	 
	 
	 	 	 	 
	5.06 Litigation
	 	 	65	 
	 
	 	 	 	 
	5.07 No Default
	 	 	65	 
	 
	 	 	 	 
	5.08 Ownership of Property; Liens
	 	 	65	 
	 
	 	 	 	 
	5.09 Environmental Compliance
	 	 	65	 
	 
	 	 	 	 
	5.10 Insurance
	 	 	65	 
	 
	 	 	 	 
	5.11 Taxes
	 	 	66	 
	 
	 	 	 	 
	5.12 ERISA Compliance
	 	 	66	 
	 
	 	 	 	 
	5.13 Equity Interests
	 	 	67	 
	 
	 	 	 	 
	5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act
	 	 	67	 
	 
	 	 	 	 
	5.15 Disclosure
	 	 	67	 
	 
	 	 	 	 
	5.16 Compliance with Laws
	 	 	67	 
	 
	 	 	 	 
	5.17 Intellectual Property; Licenses, Etc
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	68	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	68	 
	 
	 	 	 	 
	6.02 Certificates; Other Information
	 	 	69	 
	 
	 	 	 	 
	6.03 Notices
	 	 	71	 
	 
	 	 	 	 
	6.04 Payment of Obligations
	 	 	72	 






-ii-









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	Section	 	Page	 
	6.05 Preservation of Existence, Etc
	 	 	72	 
	 
	 	 	 	 
	6.06 Maintenance of Properties
	 	 	72	 
	 
	 	 	 	 
	6.07 Maintenance of Insurance
	 	 	72	 
	 
	 	 	 	 
	6.08 Compliance with Laws
	 	 	73	 
	 
	 	 	 	 
	6.09 Books and Records
	 	 	73	 
	 
	 	 	 	 
	6.10 Inspection Rights
	 	 	73	 
	 
	 	 	 	 
	6.11 Use of Proceeds
	 	 	73	 
	 
	 	 	 	 
	6.12 Further Assurances
	 	 	73	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	74	 
	 
	 	 	 	 
	7.01 Liens
	 	 	74	 
	 
	 	 	 	 
	7.02 Investments
	 	 	75	 
	 
	 	 	 	 
	7.03 Indebtedness
	 	 	76	 
	 
	 	 	 	 
	7.04 Fundamental Changes
	 	 	77	 
	 
	 	 	 	 
	7.05 Dispositions
	 	 	78	 
	 
	 	 	 	 
	7.06 Restricted Payments
	 	 	79	 
	 
	 	 	 	 
	7.07 Change in Nature of Business
	 	 	79	 
	 
	 	 	 	 
	7.08 Transactions with Affiliates
	 	 	80	 
	 
	 	 	 	 
	7.09 Burdensome Agreements
	 	 	80	 
	 
	 	 	 	 
	7.10 Use of Proceeds
	 	 	81	 
	 
	 	 	 	 
	7.11 Unrestricted Subsidiaries
	 	 	81	 
	 
	 	 	 	 
	7.12 Consolidated Leverage Ratio; Consolidated Interest Coverage Ratio
	 	 	81	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	82	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	82	 
	 
	 	 	 	 
	8.02 Remedies Upon Event of Default
	 	 	84	 
	 
	 	 	 	 
	8.03 Application of Funds
	 	 	84	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	85	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	85	 
	 
	 	 	 	 
	9.02 Rights as a Lender
	 	 	85	 
	 
	 	 	 	 
	9.03 Exculpatory Provisions
	 	 	86	 
	 
	 	 	 	 
	9.04 Reliance by Administrative Agent
	 	 	86	 






-iii-









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	Section	 	Page	 
	9.05 Delegation of Duties
	 	 	87	 
	 
	 	 	 	 
	9.06 Resignation of Administrative Agent
	 	 	87	 
	 
	 	 	 	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	88	 
	 
	 	 	 	 
	9.08 No Other Duties, Etc
	 	 	88	 
	 
	 	 	 	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	88	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	89	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	89	 
	 
	 	 	 	 
	10.02 Notices Effectiveness; Electronic Communication
	 	 	90	 
	 
	 	 	 	 
	10.03 No Waiver; Cumulative Remedies
	 	 	92	 
	 
	 	 	 	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	92	 
	 
	 	 	 	 
	10.05 Payments Set Aside
	 	 	94	 
	 
	 	 	 	 
	10.06 Successors and Assigns
	 	 	94	 
	 
	 	 	 	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	98	 
	 
	 	 	 	 
	10.08 Right of Setoff
	 	 	99	 
	 
	 	 	 	 
	10.09 Interest Rate Limitation
	 	 	99	 
	 
	 	 	 	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	100	 
	 
	 	 	 	 
	10.11 Survival of Representations and Warranties
	 	 	100	 
	 
	 	 	 	 
	10.12 Severability
	 	 	100	 
	 
	 	 	 	 
	10.13 Replacement of Lenders
	 	 	100	 
	 
	 	 	 	 
	10.14 Governing Law; Jurisdiction, Etc.
	 	 	101	 
	 
	 	 	 	 
	10.15 Waiver of Right to Trial by Jury
	 	 	102	 
	 
	 	 	 	 
	10.16 USA Patriot Act Notice
	 	 	102	 
	 
	 	 	 	 
	10.17 Time of the Essence
	 	 	102	 
	 
	 	 	 	 
	10.18 Judgment Currency
	 	 	102	 
	 
	 	 	 	 
	10.19 Entire Agreement
	 	 	103	 







-iv-









 








	 	 	 
	SCHEDULES
	 	 
	1.01
	 	Mandatory Cost Formulae
	2.01
	 	Commitments and Applicable Percentages
	5.05
	 	Supplement to Interim Financial Statements
	5.13
	 	Subsidiaries, Other Equity Investments and Equity Interests in Borrower
	7.01
	 	Existing Liens
	7.03
	 	Existing Indebtedness
	10.02
	 	Administrative Agent's Office, Certain Addresses for Notices






	 	 	 
	EXHIBITS
	 	 
	Form of
	 	 
	A
	 	Loan Notice
	B
	 	Swing Line Loan Notice
	C-1
	 	Term Note
	C-2
	 	Revolving Note
	D
	 	Compliance Certificate
	E
	 	Assignment and Assumption
	F
	 	Opinion Matters







-ii-









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT (this “Agreement”) is entered into as of June 15, 2004, among
DISCOVERY COMMUNICATIONS, INC., a Delaware close corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), BANK OF AMERICA, N.A., as Administrative Agent, and L/C Issuer, and SUNTRUST
BANK, as Swing Line Lender.



RECITALS




     WHEREAS, the Borrower has requested that the Lenders provide a revolving credit facility and a
term credit facility, and the Lenders are willing to do so on the terms and conditions set forth
herein;



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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



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



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



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



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



     “Agreement Currency” has the meaning specified in Section 10.18.



     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Revolving
Lenders.



     “Aggregate Term Commitments” means prior to giving effect to any Term Borrowing on the
Closing Date, the Term Commitments of all Term Lenders.



     “Agreement” means this Credit Agreement.



 









 





     “Alternative Currency” means each of Euro, Sterling, Yen and each other currency
(other than Dollars) that is approved in accordance with Section 1.05.



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



     “Alternative Currency Sublimit” means an amount equal to 50% of the Aggregate
Revolving Commitments. The Alternative Currency Sublimit is part of, and not in addition to, the
Aggregate Commitments.



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



     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b):



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Applicable	 	 
	 	 	 	 	 	 	 	 	 	 	Margin for	 	Applicable
	 	 	 	 	 	 	 	 	 	 	LIBOR	 	Margin for
	 	 	 	 	 	 	 	 	 	 	Revolving	 	LIBOR Term
	 	 	 	 	 	 	 	 	 	 	Loans/	 	Loans/Revolving
	Pricing	 	Consolidated	 	 	 	 	 	Letters of	 	Loans All-in-
	Level	 	Leverage Ratio	 	Facility Fee	 	Credit Fee	 	Drawn
	 	1	 	 	34.00:1
	 	 	0.375	%	 	 	1.125 	%	 	 	1.500 	%
	 	2	 	 	33.50:1 but <4.00:1
	 	 	0.375 	%	 	 	0.875 	%	 	 	1.250 	%
	 	3	 	 	33.00:1 but <3.50:1
	 	 	0.325 	%	 	 	0.800 	%	 	 	1.125 	%
	 	4	 	 	32.50:1 but <3.00:1
	 	 	0.275 	%	 	 	0.600 	%	 	 	0.875 	%
	 	5	 	 	32.00:1 but <2.50:1
	 	 	0.175 	%	 	 	0.575 	%	 	 	0.750 	%
	 	6	 	 	<2.00:1
	 	 	0.125 	%	 	 	0.500 	%	 	 	0.625 	%






2









 






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered. The Applicable Rate in effect from the
Closing Date through the date on which a Compliance Certificate is required to be delivered
pursuant to Section 6.02(b) in respect of the fiscal quarter ending June 30, 2004, shall be
determined based upon the Consolidated Leverage Ratio as set forth in the Compliance Certificate
delivered on the Closing Date pursuant to Section 4.01(a).



     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with normal banking procedures
in the place of payment.



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



     “Arrangers” means each of Banc of America Securities LLC, Wachovia Capital Markets,
LLC, and TD Securities (USA) Inc., in their capacity as lead arrangers and joint book managers.



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



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, and (b) in respect of any Off-Balance
Sheet Obligation of any Person, (i) in the case of an Off-Balance Sheet Obligation in an asset
securitization transaction of the type described under clause (a) of the definition thereof, the
unrecovered investment of transferees in transferred assets as to which such Person has or may have
recourse obligations; or (ii) in the case of an Off-Balance Sheet Obligation in an off balance
sheet lease transaction of the type described under clauses (b), (c) and (d) of the definition
thereof, the capitalized amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such
off balance sheet lease were accounted for as a Capitalized Lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2003, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



3









 





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



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



     “Base Rate”  means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime
rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



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



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



     “Borrowing” means a Revolving Borrowing or a Term Borrowing, as the context may
require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:




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




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




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



4









 






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



     “Capitalized Lease” means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee which in accordance with GAAP, is or
should be accounted for, as a capital lease on the balance sheet of such Person.



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



     “Cash Equivalents” means any of the following types of Investments, to the extent
owned by Borrower or a Restricted Subsidiary free and clear of all Liens (other than Liens created
under the Loan Documents):




     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having maturities
of not more than 360 days from the date of acquisition thereof; provided that the full faith
and credit of the United States of America is pledged in support thereof;




     (b) readily marketable obligations or securities issued or directly and fully
guaranteed or insured by any other sovereign country or any agency or instrumentality
thereof having maturities of not more than 360 days from the date of acquisition thereof;
provided that the full faith and credit of such country is pledged in support thereof;




     (c) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the
United States or is the principal banking subsidiary of a bank holding company organized
under the laws of the United States of America, any state thereof or the District of
Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which
issues) commercial paper rated as described in clause (d) of this definition and (iii) has
combined capital and surplus of at least $1,000,000,000, in each case with maturities of not
more than 360 days from the date of acquisition thereof;




     (d) commercial paper issued by any Person organized under the laws of any state of the
United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at
least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more
than 180 days from the date of acquisition thereof;




     (e) repurchase agreements with respect to Investments of the type described in clauses
(a), (b), (c) and (d) of this definition with financial institutions having a long term
unsecured debt rating of A3 or better from Moody’s or A- or better from S&P, in each case
with terms of not more than 360 days from the date of the applicable agreement; and



5









 






     (f) Investments, classified in accordance with GAAP as current assets of the Borrower
or a Restricted Subsidiary, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial institutions
that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of
which are limited primarily to Investments of the character, quality and maturity described
in clauses (a), (b), (c), (d) and (e) of this definition.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



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




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934), but excluding any Significant Shareholder or any
combination of Significant Shareholders becomes the “beneficial owner” (as defined in Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of more
than 50% of the equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower or entitled to vote on management
or policies of the Borrower; and




     (b) within a period of 90 days after the occurrence of the event or series of events
described in clause (a) above, the Borrower shall not have procured and delivered to the
Administrative Agent (i) a debt rating as determined by either S&P or Moody’s of the
Borrower’s non-credit enhanced, senior unsecured long-term debt of at least BBB-/Baa3 and
(ii) any other debt rating required to be obtained under the Note Purchase Agreements after
the occurrence of such event of series of events.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 4.01 (or, in the case of
Section 4.01(b), waived by the Person entitled to receive the applicable payment).



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means a Revolving Commitment or a Term Commitment.



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



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Restricted Subsidiaries on a consolidated basis, without duplication, the sum of
(a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed
money (including Obligations (other than in respect of Swap Contracts) hereunder) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments,
(b) all purchase money Indebtedness (except as provided in clause (d) below), (c) all direct
obligations arising under letters of credit (including standby and commercial), bankers’



6









 







acceptances, bank guaranties, surety bonds and similar instruments (other than (i) commercial
letters of credit in an aggregate face amount of not more than $15,000,000 and (ii) surety bonds in
an aggregate face amount of not more than $10,000,000), (d) all obligations in respect of the
deferred purchase price of property or services (other than trade accounts payable in the ordinary
course of business), (e) Attributable Indebtedness in respect of Capitalized Leases and Off-Balance
Sheet Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness
of the types specified in clauses (a) through (e) above of, or other obligation payable by, Persons
other than the Borrower or a Restricted Subsidiary, and (g) all Indebtedness of the types referred
to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture
that is itself a corporation, limited liability company or similar limited liability entity
organized under the laws of a jurisdiction other than the United States or a state thereof) in
which the Borrower or a Restricted Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to the Borrower or such Restricted Subsidiary.



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Restricted Subsidiaries determined on a consolidated basis, the sum of all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with GAAP, including the portion of rent
expense with respect to such period under Capitalized Leases that is treated as interest in
accordance with GAAP.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Operating Cash Flow for the period of four consecutive fiscal quarters
most recently ended on or prior to such date to (b) Consolidated Interest Charges for such period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated Operating Cash Flow for the
period of four consecutive fiscal quarters most recently ended on or prior to such date.



     “Consolidated Operating Cash Flow” means, for any period, the Operating Cash Flow of
the Borrower and its Restricted Subsidiaries on a consolidated basis for that period.



     “Consolidated Total Assets” means, as of any date, the total consolidated assets of
the Borrower and its Restricted Subsidiaries in accordance with GAAP as of the last day of the
fiscal quarter most recently ended prior to such date.



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



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



7









 





     “Control Event” means an event whereby any Person or two or more Persons acting in
concert (other than any Significant Shareholders or any combination of Significant Shareholders)
shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies of the Borrower, or
control over the equity securities of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower or entitled to vote on management or
policies of the Borrower on a fully-diluted basis representing more than 50% of the combined voting
power of such securities.



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



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



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



     “Default Rate” means (a) in the case of Eurocurrency Rate Loans, the sum of (i) the
Eurocurrency Rate for such Loans plus (ii) the Applicable Rate and any Mandatory Cost
applicable to such Loans, plus (iii) 2% per annum, (b) in the case of Letter of Credit
Fees, a rate equal to (i) the Applicable Rate plus (ii) 2% per annum and (c) in the case of
Base Rate Loans and for all other purposes, the sum of (i) the Base Rate for such Loans
plus the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per
annum.



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



     “Designation” means (a) a designation by the Borrower of a newly organized or newly
acquired Subsidiary as an Unrestricted Subsidiary, (b) a later designation by the Borrower of a
Restricted Subsidiary as an Unrestricted Subsidiary, or (c) a designation of an Unrestricted
Subsidiary as a Restricted Subsidiary; in each case, as confirmed pursuant to Section
6.02(g). “Designate” has a meaning correlative thereto.



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



8









 







assignment, transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.



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



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



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



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates
or Subsidiaries; and provided further, however, that in the case of any
assignment of a Revolving Commitment, an Eligible Assignee shall include only a Lender, an
Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending
the applicable Alternative Currencies to the Borrower without the imposition of any Taxes or
additional Taxes, as the case may be.



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



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



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



9









 







assumed or imposed on the Borrower or a Restricted Subsidiary with respect to any of the
foregoing.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



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



     “Eurocurrency Base Rate” has the meaning specified in the definition of Eurocurrency
Rate.



     “Eurocurrency Rate” means for any Interest Period with respect to a Eurocurrency Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 
	Eurocurrency Rate =

	 	           Eurocurrency Base Rate

1.00 – Eurodollar Reserve Percentage







10









 






     Where,




     “Eurocurrency Base Rate” means, for such Interest Period:




     (a) the applicable Screen Rate for such Interest Period; or




     (b) if the applicable Screen Rate shall not be available, the rate per annum determined
by the Administrative Agent as the rate of interest at which deposits in the relevant
currency for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch (or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for such currency at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first day of such
Interest Period.




     “Eurodollar 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 Lender, under regulations issued from
time to time by the FRB 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 Eurocurrency Rate for
each outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.



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



     “Eurodollar Reserve Percentage” has the meaning specified in the definition of
Eurocurrency Rate.



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



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
10.13), any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in



11









 







Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the applicable Borrower with respect to such
withholding tax pursuant to Section 3.01(a).



     “Existing Credit Agreement” means that certain Second Amended and Restated Loan
Agreement dated as of December 28, 2001, as amended, among the Borrower, the lenders party thereto
and Toronto Dominion (Texas), Inc., as administrative agent for such lenders.



     “Existing Letters of Credit” means, collectively (a) the letters of credit outstanding
under the Existing Credit Agreement on the Closing Date and (b) any letters of credit issued by
Bank of America for the account of the Borrower which are outstanding on the Closing Date.



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



     “Fee Letter” means the fee letter agreement, dated April 27, 2003, among the Borrower,
the Administrative Agent and certain of the Arrangers.



     “Film Rights Amortization” means, for any Person, the amortization of payments for the
acquisition of film rights and broadcast programming, which payments shall, at all times, be
amortized in accordance with GAAP.



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



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



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the



12









 







accounting profession in the United States, that are applicable to the circumstances as of the
date of determination, consistently applied.



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



     “Granting Lender” has the meaning specified in Section 10.06(h).



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



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



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



     “Increase Effective Date” means a Revolving Commitment Increase Effective Date or a
Term Commitment Increase Effective Date as the case may be.



     “Incremental Term Loan” has the meaning specified in Section 2.01(c). Each
Incremental Term Loan shall be deemed to be a Term Loan hereunder.



13









 





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



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



     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments (other than (i) commercial letters of credit in an aggregate face amount of not more
than $15,000,000 and (ii) surety bonds in an aggregate face amount of not more than $10,000,000);



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



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



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



     (f) Capitalized Leases and Off-Balance Sheet Obligations; and



     (g) all Guarantees of such Person in respect of any of the foregoing of, or in respect of any
obligation payable by, any other Person.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation, limited
liability company or similar limited liability entity organized under the laws of a jurisdiction
other than the United States or a state thereof) in which such Person is a general partner or a
joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount
of any net obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. The amount of any Capitalized Lease or Off-Balance
Sheet Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.05.



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



14









 





     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Borrower in its Loan Notice; provided that:




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




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




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



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment. Any Designation of an existing
Restricted Subsidiary as an Unrestricted Subsidiary hereunder shall be deemed to be an Investment
in such Unrestricted Subsidiary by the Borrower and any Restricted Subsidiary holding Equity
Interests or Indebtedness of such Unrestricted Subsidiary or which has guaranteed any such
Indebtedness.



     “IP Rights” has the meaning specified in Section 5.17.



     “IRS” means the United States Internal Revenue Service.



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



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



     “Joint-Venture Partner” means, with respect to a Restricted Subsidiary of the Borrower
which is not a wholly-owned Subsidiary of the Borrower, each Person which owns an Equity Interest
in such Restricted Subsidiary other than the Borrower or another Restricted Subsidiary.



15









 





     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law including, without limitation, all Environmental Laws.



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



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



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



     “L/C Issuer” means (a) Bank of America, in its capacity as issuer of Letters of Credit
hereunder and certain Existing Letters of Credit, or any successor issuer of Letters of Credit
hereunder or (b) The Toronto-Dominion Bank, in its capacity as issuer of certain Existing Letters
of Credit, as the context may require.



     “L/C Obligations” means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination
a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes each Revolving Lender, each Term Lender and the Swing Line Lender; for
purposes of clarification only, to the extent that the Swing Line Lender may have rights and
obligations in addition to those of the other Lenders due to its status as Swing Line Lender, its
status as such will be specifically referenced.



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



     “Letter of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit. Letters of Credit shall be denominated in Dollars or an
Alternative Currency (or other currency approved by the L/C Issuer).



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



16









 





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



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) $200,000,000
and (b) the Aggregate Revolving Commitments. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement any easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same economic effect as any of the
foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Loan or Term Loan pursuant to Section 2.01 or a Swing
Line Loan.



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



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



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



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, liabilities (actual or contingent), or
condition (financial or otherwise) of the Borrower and its Restricted Subsidiaries taken as a
whole; (b) a material impairment of the ability of the Borrower to perform its obligations under
any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Borrower of any Loan Document to which it is
a party.



     “Maturity Date” means (a) in the case of any Revolving Loans, Swing Line Loans and
Letters of Credit, the fifth anniversary of the Closing Date and (b) in the case of Term Loans, the
fifth anniversary of the Closing Date.



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



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



17









 





     “Net Income” means, for any period, for any Person, the net income of such Person for
that period, determined in accordance with GAAP.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of (a) Exhibit C-1, for Term Loans,
and (b) Exhibit C-2, for Revolving Loans, with such changes as the Administrative Agent and
the Borrower shall agree.



     “Note Purchase Agreements” means (a) the Note Purchase Agreement dated as of September
30, 2002, among the Borrower and the purchasers signatory thereto, entered into in connection with
the issuance of $290,000,000 principal amount of Senior Unsecured Notes of the Borrower, consisting
of $55,000,000 of 7.45% Series A Senior Unsecured Notes due September 30, 2009, and $235,000,000 of
8.13% Series B Senior Unsecured Notes due September 30, 2012; and (b) the Note Purchase Agreement
dated as of March 9, 2001, among the Borrower and the purchasers signatory thereto, entered into in
connection with the issuance of $700,000,000 Senior Unsecured Notes of the Borrower, consisting of
$300,000,000 of 7.81% of Series A Senior Unsecured Notes due March 9, 2006, $180,000,000 of 8.06%
Series B Senior Unsecured Notes due March 9, 2008 and $220,000,000 of 8.37% Series C Senior
Unsecured Notes due March 9, 2011.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Loan Document (including, any Swap Contract entered
into after the date of this Agreement to which a Swap Bank is a party) or otherwise with respect to
any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against the Borrower or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.



     “Off-Balance Sheet Obligation” means, with respect to any Person as of any date of
determination thereof, without duplication and to the extent not included as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP: (a) with
respect to any asset securitization transaction (including any accounts receivable purchase
facility) (i) the unrecovered investment of purchasers or transferees of assets so transferred, and
(ii) any other payment, recourse, repurchase, hold harmless, indemnity or similar obligation of
such Person or any of its Subsidiaries in respect of assets transferred or payments made in respect
thereof, other than limited recourse provisions that are customary for transactions of such type
and that neither (x) have the effect of limiting the loss or credit risk of such purchasers or
transferees with respect to payment or performance by the obligors of the assets so transferred nor
(y) impair the characterization of the transaction as a true sale under applicable Laws (including
Debtor Relief Laws); (b) the monetary obligations under any financing lease or so-called
“synthetic,” tax retention or off-balance sheet lease transaction where such Person has retained
the tax benefits of the equipment subject to the applicable lease and which, upon the application
of any Debtor Relief Law to such Person or any of its Subsidiaries, would be characterized as
indebtedness; (c) the monetary obligations under any sale and leaseback transaction involving a
lease of the type described in clause (b) above; or (d) any other monetary



18









 







obligation arising with respect to any other transaction which is characterized as
indebtedness for tax purposes but not for accounting purposes in accordance with GAAP.



     “Operating Cash Flow” means, for any period, for any Person, the sum of (a) the Net
Income of such Person, plus (b) interest expense, depreciation, amortization (other than
Film Rights Amortization), provision for income tax and other non-cash expenses deducted in
determining such Net Income of such Person, in each case, determined in accordance with GAAP.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



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



     “Outstanding Amount” means (a) with respect to any Term Loans on any date, the
aggregate principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Term Loans occurring on the same date; (b) with respect to any Revolving Loans on any
date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Revolving Loans occurring on
such date; (c) with respect to any Swing Line Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments or repayments of
such Swing Line Loans occurring on such date; and (d) with respect to any L/C Obligations on any
date, the aggregate outstanding amount of such L/C Obligations on such date after giving effect to
any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance
with banking industry rules on interbank compensation, and (b) with respect to any amount
denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the amount with respect
to which such rate is being determined, would be offered for such day by a branch or Affiliate of
Bank of America in the applicable offshore interbank market for such currency to major banks in
such interbank market. 



19









 





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



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



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



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



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



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the sum of (a) the Total Term Outstandings or, prior to giving effect to any Term Borrowing
on the Closing Date, the Aggregate Term Commitments, and (b) the Aggregate Revolving Commitments
or, if the commitment of each Revolving Lender to make Revolving Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, the
Total Revolving Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition); provided that the portion of the Total Term Outstandings and
the Revolving Commitment of, and the portion of the Total Revolving Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.



     “Required Revolving Lenders” means, as of any date of determination, Lenders having
more than 50% of the Aggregate Revolving Commitments or, if the commitment of each Revolving Lender
to make Revolving Loans and the obligation of the L/C Issuer to make L/C



20









 







Credit Extensions have been terminated pursuant to Section 8.02, the Total Revolving
Outstandings (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition); provided that the portion of the Revolving Commitment of, and
the portion of the Total Revolving Outstandings held or deemed held by, any Defaulting Lender shall
be excluded for purposes of making a determination of Required Revolving Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, senior executive vice president, executive vice president, senior vice president,
treasurer or assistant treasurer of the Borrower. Any document delivered hereunder that is signed
by a Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of the Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest or on
account of any return of capital stock to the Borrower’s stockholders, partners or other members
(or the equivalent Person thereof).



     “Restricted Subsidiary” means any Subsidiary of the Borrower which is not an
Unrestricted Subsidiary.



     “Revaluation Date” means (a) with respect to any Revolving Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative
Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the
Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to
any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit
having the effect of increasing the amount thereof (solely with respect to the increased amount),
(iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an
Alternative Currency, (iv) in the case of the Existing Letters of Credit, July 1, 2004, and (v)
such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required
Lender shall require.



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same
Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(a), or a
Swing Line Borrowing, as the context may require.



     “Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving
Loans to the Borrower pursuant to Section 2.01(a), (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount
at any one time outstanding not to exceed the Dollar amount set forth opposite such



21









 







Lender’s name on Schedule 2.01, as such Schedule may be supplemented from time to time
pursuant to Section 2.14, or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.



     “Revolving Commitment Increase Effective Date” has the meaning specified in
Section 2.14(d).



     “Revolving Lender” means each Lender with a Revolving Commitment, and if the Revolving
Commitments have been terminated pursuant to Section 8.02, each Lender holding any
outstanding Revolving Loans or participations in outstanding Swing Line Loans and L/C Obligations.



     “Revolving Loan” has the meaning specified in Section 2.01(a).



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



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



     “Screen Rate” means, for any Interest Period:




     (a) the rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the page of the Telerate screen (or any successor thereto)
that displays an average British Bankers Association Interest Settlement Rate for deposits
in the relevant currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period; or




     (b) if the rate referenced in the preceding clause (a) does not appear on such page or
service or such page or service shall cease to be available, the rate per annum equal to the
rate determined by the Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest Settlement Rate
for deposits in the relevant currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest Period.



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



22









 





     “Significant Shareholders” means Cox Communications Holdings, Inc., Advance/Newhouse
Programming Partnership and LMC Discovery, Inc. (or one or more corporations or other entities of
which 80% or more of the outstanding Equity Interests of all classes is owned directly or
indirectly by any such Person or by Liberty Media Corporation).



     “SPC” has the meaning specified in Section 10.06(h).



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



     “Spot Rate” for a currency means the rate determined by the Administrative Agent to be
the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such
Person of such currency with another currency through its principal foreign exchange trading office
at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign
exchange computation is made; provided that the Administrative Agent may obtain such spot
rate from another financial institution designated by the Administrative Agent if the Person acting
in such capacity does not have as of the date of determination a spot buying rate for any such
currency.



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



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the Equity Interests having
ordinary voting power for the election of directors or other governing body (other than Equity
Interests having such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person and shall also include such entities
not less than 50% of the Equity Interests of which are owned by such Person but which are not so
Controlled by such Person but which are nonetheless indicated on the audited financial statements
of such Person as a consolidated entity of such Person. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Borrower.



     “Swap Bank” means any Lender or Affiliate of a Lender in its capacity as a party to a
Swap Contract entered into after the date of this Agreement.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International



23









 







Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement,
or any other master agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.



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



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



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



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



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B hereto.



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



     “Target Business” has the meaning specified in Section 7.07.



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



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



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



24









 





     “Term Commitment” means, as to each Lender, (a) its obligation to make a Term Loan to
the Borrower on the Closing Date pursuant to Section 2.01(b) in an aggregate principal
amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or
(b) its obligation to make a Term Loan to the Borrower on any Term Commitment Increase Effective
Date pursuant to Section 2.01(c) in an aggregate principal amount not to exceed the amount
set forth opposite such Lender’s name on any supplement to Schedule 2.01 delivered to the
Borrower and the Lenders by the Administrative Agent pursuant to Section 2.15(d), in each
case, as such amount may be adjusted pursuant to Section 2.06(b), as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.



     “Term Commitment Increase Effective Date” has the meaning specified in Section
2.15(d).



     “Term Lender” means each Lender with a Term Commitment.



     “Term Loan” has the meaning specified in Section 2.01(b).



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



     “Total Initial Term Outstandings” means the sum of the Total Term Outstandings on the
Closing Date plus the total Outstanding Amount of all the Incremental Term Loans made by all Term
Lenders on each Term Commitment Increase Effective Date prior to the third anniversary of the
Closing Date.



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



     “Total Revolving Outstandings” means, as of any date, the aggregate Outstanding Amount
of all Revolving Loans, Swing Line Loans and all L/C Obligations on such date minus the
amount of L/C Obligations which have been Cash Collateralized.



     “Total Term Outstandings” means, as of any date, the aggregate Outstanding Amount of
all Term Loans on such date.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or
Eurocurrency Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used by the actuary to that Pension Plan in its most
recent valuation of that Pension Plan, determined as of the most recent financial statement
reflecting such amounts.



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



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



25









 





     “Unrestricted Subsidiary” means any Subsidiary of the Borrower organized or acquired
after the Closing Date and Designated as an Unrestricted Subsidiary or any Restricted Subsidiary
which is Designated as an Unrestricted Subsidiary, in each case, pursuant to Sections 6.02(f)
and 7.11. Each Subsidiary of an Unrestricted Subsidiary shall be deemed to be an Unrestricted
Subsidiary.



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



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



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



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



     (c) Each reference to “basis points” or “bps” shall be interpreted in accordance with the
convention that 100 bps = 1.0%.



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



     (e) All references to any Person shall also refer to the successors and assigns of such Person
permitted hereunder.



26









 





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



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



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



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



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



27









 







respect to the issuance of Letters of Credit, such request shall be subject to the approval of
the Administrative Agent and the L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20
Business Days prior to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of
Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to Revolving Borrowings, the Administrative Agent shall promptly notify each Revolving
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the L/C Issuer thereof. Each Revolving Lender (in the
case of any such request pertaining to Revolving Borrowings) or the L/C Issuer (in the case of a
request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than
11:00 a.m., ten Business Days after receipt of such request whether it consents, in its sole
discretion, to the making of Revolving Borrowings or the issuance of Letters of Credit, as the case
may be, in such requested currency.



     (c) Any failure by a Revolving Lender or the L/C Issuer, as the case may be, to respond to
such request within the time period specified in Section 1.05(b) shall be deemed to be a
refusal by such Revolving Lender or the L/C Issuer, as the case may be, to permit Revolving Loans
to be made or Letters of Credit to be issued in such requested currency. If the Administrative
Agent and all the Lenders consent to making Revolving Borrowings in such requested currency, the
Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any Revolving Borrowings of
Eurocurrency Rate Loans; and if the Administrative Agent and the L/C Issuer consent to the issuance
of Letters of Credit in such requested currency, the Administrative Agent shall so notify the
Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency
hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to
obtain consent to any request for an additional currency under this Section 1.05, the
Administrative Agent shall promptly so notify the Borrower. Any specified currency of an Existing
Letter of Credit that is neither Dollars nor one of the Alternative Currencies specifically listed
in the definition of “Alternative Currency” shall be deemed an Alternative Currency with respect to
such Existing Letter of Credit only.



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



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to



28









 







reflect the adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.



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



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



     1.08 Letter of Credit Amounts. Unless otherwise specified, all references herein to the
amount of a Letter of Credit which is not denominated in Dollars at any time shall be deemed to
mean the Dollar Equivalent of the maximum face amount of such Letter of Credit after giving effect
to all increases thereof contemplated by the applicable Letter of Credit Application therefor,
whether or not such maximum face amount is in effect at such time.



ARTICLE II.

COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Loans; Term Loans; and Incremental Term Loans. (a) Subject to the terms and
conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan,
a “Revolving Loan”) to the Borrower in Dollars or in one or more Alternative Currencies
from time to time, on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of such Revolving Lender’s Revolving Commitment;
provided, however, that after giving effect to any Revolving Borrowing, (i) the
Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such
Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Revolving Lender’s Revolving Commitment, and (iii) the aggregate
Outstanding Amount of all Revolving Loans denominated in Alternative Currencies shall not exceed
the Alternative Currency Sublimit. Within the limits of each Revolving Lender’s Revolving
Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.



     (b) Subject to the terms and conditions set forth herein, each Term Lender severally agrees to
make a single loan (each such loan, together with any Incremental Term Loan, a “Term Loan”)
to the Borrower in Dollars on the Closing Date in an aggregate amount not to exceed (i) when taken
together with the aggregate amount of all Term Loans made to the Borrower on the Closing Date by
the other Term Lenders, the aggregate of all Term Commitments of all Term Lenders as of the Closing
Date or (ii) such Lender’s Term Commitment as of the Closing Date. The Term Borrowing by the
Borrower made on the Closing Date shall consist of Term Loans made to the Borrower simultaneously
by the Term Lenders ratably according to their Term



29









 







Commitments. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may
not be reborrowed.



     (c) Subject to the terms and conditions set forth herein, each Term Lender that has agreed to
increase its Term Commitments on any Term Commitment Increase Effective Date pursuant to the terms
and provisions of Section 2.15 severally agrees to make a single loan (each such loan, an
“Incremental Term Loan”) to the Borrower in Dollars on such Term Commitment Increase
Effective Date in an aggregate amount not to exceed (i) when taken together with the aggregate
amount of all Incremental Term Loans made to the Borrower on such Term Commitment Increase
Effective Date by the other Term Lenders, the aggregate of all Term Commitments of all Term Lenders
as of such Term Commitment Increase Effective Date or (ii) such Lender’s Term Commitment as of such
Term Commitment Increase Effective Date. The Incremental Term Borrowing made on such Term
Commitment Increase Effective Date shall consist of Incremental Term Loans made simultaneously by
the Term Lenders as of such Term Commitment Increase Effective Date ratably according to their Term
Commitments as of such Term Commitment Increase Effective Date. Amounts borrowed under this
Section 2.01(c) and repaid or prepaid may not be reborrowed.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in
Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans,
(ii) four Business Days (or five Business Days in the case of a Special Notice Currency)
prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a
conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or
continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted or
continued, (v) if applicable, the duration of the Interest Period with respect thereto, and (vi) in
the case of a Loan Notice requesting a Revolving Borrowing, the currency of the Loans to be
borrowed. If the Borrower fails to specify a currency in a Loan Notice requesting a Revolving
Borrowing, then the Revolving Loans so requested shall be made in Dollars. If the Borrower fails
to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans



30









 







shall be made as, or converted to, Base Rate Loans; provided, however, that in
the case of a failure to timely request a continuation of Loans denominated in an Alternative
Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with
an Interest Period of one month. Any automatic conversion to Base Rate Loans shall be effective as
of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency
Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of
Eurocurrency Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month. No Loan may be converted into or
continued as a Loan denominated in a different currency, but instead must be prepaid in the
original currency of such Loan and reborrowed in the other currency.



     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Term Lender or Revolving Lender, as the case may be, of the amount (and, in the case of a Loan
Notice of a Revolving Borrowing, currency) of its Applicable Percentage of the applicable Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each applicable Lender of the details of any automatic conversion
to Base Rate Loans or continuation of Loans denominated in a currency other than Dollars, in each
case as described in the preceding subsection (a). In the case of a Borrowing, each Lender shall
make the amount of its Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office for the applicable currency not later than 12:00 noon, in the case of
any Loan denominated in Dollars, and not later than the Applicable Time specified by the
Administrative Agent in the case of any Loan in an Alternative Currency, in each case on the
Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by
(i) crediting an account of the Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Loan Notice with respect to such Borrowing denominated in
Dollars is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and,
second, shall be made available to the applicable Borrower as provided above.



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



     (d) The Administrative Agent shall promptly notify the Borrower and the applicable Lenders of
the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination
of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of



31









 







America’s prime rate used in determining the Base Rate promptly following the public
announcement of such change.



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than sixteen (16)
Interest Periods in effect with respect to Loans.



     (f) The failure of any Lender to make any Loan to be made by it as part of any Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of
such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make any
Loan to be made by such other Lender on the date of any Borrowing.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the other Revolving Lenders set forth in this Section
2.03, (1) from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in
Dollars for the account of the Borrower, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the
Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters
of Credit issued for the account of the Borrower and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate
Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any
Revolving Lender, plus such Revolving Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving
Lender’s Revolving Commitment, or (z) the Outstanding Amount of the L/C Obligations shall
not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso
of the preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and governed by the terms
and conditions hereof.




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




     (A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit would occur more than twelve months after the date of issuance



32









 







or last extension, unless the Required Revolving Lenders have approved such
expiry date; or




     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Revolving Lenders have approved
such expiry date;




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




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




     (B) the issuance of such Letter of Credit would violate any Laws or one or more
policies of the L/C Issuer;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial face amount less than $100,000;




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




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




     (F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.




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




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit



33









 







in its amended form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.




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



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




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




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy



34









 







thereof. Promptly after receipt by the Administrative Agent of such Letter of Credit
Application, the Administrative Agent shall provide notice thereof to each Revolving Lender.
Unless the L/C Issuer has received written notice from any Revolving Lender, the
Administrative Agent or the Borrower, at least one Business Day prior to the requested date
of issuance or amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Article IV shall not then be satisfied, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of
Credit for the account of the Borrower or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product
of such Revolving Lender’s Applicable Percentage times the amount of such Letter of
Credit.




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




     (iv) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof after
any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific
request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter
of Credit has been issued, except as provided in the following sentence, the Revolving
Lenders shall be deemed to have authorized (but may not



35









 







require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in
accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if
such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all
or any portion of the stated amount thereof after a drawing thereunder by giving notice of
such non-reinstatement within a specified number of days after such drawing (the
“Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if
it has received a notice (which may be by telephone or in writing) on or before the day that
is five Business Days before the Non-Reinstatement Deadline (A) from the Administrative
Agent that the Required Revolving Lenders have elected not to permit such reinstatement or
(B) from the Administrative Agent, any Revolving Lender or the Borrower that one or more of
the applicable conditions specified in Section 4.02 is not then satisfied (treating
such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each
case, directing the L/C Issuer not to permit such reinstatement.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Borrower shall reimburse the L/C Issuer in such Alternative
Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that
it will require reimbursement in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly following
receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in Dollars.
In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit
denominated in an Alternative Currency or other currency (other than Dollars), the L/C
Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the
Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in an Alternative Currency (each such date, an “Honor Date”), the
Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal
to the amount of such drawing and in the applicable currency. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each
Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in
Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Alternative Currency or any other currency other than Dollars) (the
“Unreimbursed Amount”), and the amount of such Revolving Lender’s Applicable
Percentage thereof. In such event, the Borrower shall be deemed to have requested a
Revolving Borrowing of Base Rate Loans denominated in Dollars to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the



36









 







principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Revolving Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or
the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of such notice.




     (ii) Each Revolving Lender (including the Revolving Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative
Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Revolving Lender that so makes funds available shall be
deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the L/C Issuer in Dollars, or if requested by the
L/C Issuer, the equivalent amount thereof in an Alternative Currency as determined by the
Administrative Agent at such time on the basis of the Spot Rate (determined as of such
funding date) for the purchase of such Alternative Currency with Dollars.




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




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




     (v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Lender may have against the L/C Issuer, the Borrower, any Subsidiary or
any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Lender’s obligation to
make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions
set forth in Section 4.02 (other than delivery by the Borrower of a Loan



37









 







Notice). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Revolving Lender
pursuant to the foregoing provisions of this Section 2.03(c) by the time specified
in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such
Revolving Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of the L/C Issuer
submitted to any Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




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




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



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



38









 






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




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




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




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law;




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or in the relevant currency markets generally;
or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



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



     (f) Role of L/C Issuer. Each Revolving Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. Neither the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Revolving Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in



39









 







the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties, nor any correspondent, participant or assignee of the L/C Issuer, shall
be liable or responsible for any of the matters described in clauses (i) through (v) of Section
2.03(e); provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.



     (g) Cash Collateral. (i) Upon the request of the Administrative Agent, (A) if the
L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date,
any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.




     (ii) In addition, if the Administrative Agent notifies the Borrower at any time that the
Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit
Sublimit then in effect, then, within two Business Days after receipt of such notice, the
Borrower shall Cash Collateralize the L/C Obligations in an amount equal to the amount by
which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.




     (iii) The Administrative Agent may, at any time and from time to time after the initial
deposit of Cash Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations.




     (iv) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of
the L/C Issuer and the Revolving Lenders, as collateral for the L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to by the
Revolving Lenders).



40









 






Derivatives of such term have corresponding meanings. The Borrower hereby grants to
the Administrative Agent, for the benefit of the L/C Issuer and the Revolving Lenders, a
security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America.



     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Percentage, in Dollars, a Letter
of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the
Applicable Rate times the Dollar Equivalent of the actual daily maximum amount available to
be drawn under such Letter of Credit (whether or not such maximum amount is then available to be
drawn under such Letter of Credit). Letter of Credit Fees shall be (i) computed on a quarterly
basis in arrears and (ii) due and payable on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there
is any change in the Applicable Rate during any quarter, the daily maximum amount of each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Revolving Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account, in Dollars a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on
the Dollar Equivalent of the actual daily maximum amount available to be drawn under such Letter of
Credit (whether or not such maximum amount is then in effect under such Letter of Credit) and on a
quarterly basis in arrears, and due and payable on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. In addition, the Borrower shall pay directly to the L/C Issuer for its own account, in
Dollars, the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.



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



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or will otherwise
benefit a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance
of



41









 







Letters of Credit for the benefit of Subsidiaries inures to the benefit of the Borrower, and
that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.



     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in
this Section 2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”)
to the Borrower from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage
of the Outstanding Amount of Revolving Loans and L/C Obligations of the Revolving Lender acting as
Swing Line Lender, may exceed the amount of such Revolving Lender’s Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Revolving Lender’s Revolving Commitment. Within the foregoing limits, and subject
to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line
Loan shall be a Base Rate Loan for all purposes of this Agreement, including, without limitation
pursuant to Section 2.08(b), except that by separate agreement between the Borrower and the
Swing Line Lender, the Swing Line Lender may otherwise agree with the Borrower that the Swing Line
Lender shall accept interest in respect of Swing Line Loans which are prepaid or timely repaid in
full to the Swing Line Lender which interest has been calculated at a different rate of interest
than the interest rate provided in this Agreement (and the Borrower and the Swing Line Lender, with
the written consent of the Administrative Agent, may also separately agree to a different cut-off
time for delivering notices of Swing Line Borrowings, minimum amounts of Swing Line Borrowings and
other matters than is provided for such matters in Section 2.04(b)); provided that
no other Revolving Lender shall be bound by any such separate agreement. Immediately upon the
making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage
times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender not later than 1:00 p.m. on
the requested borrowing date (and must be received by the Administrative Agent promptly
thereafter), and shall specify (i) the amount to be borrowed, which shall be a minimum of
$1,000,000 or a whole multiple of $500,000 in excess thereof, and (ii) the requested borrowing
date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the



42









 







Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that
the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the
date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence
of Section 2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by (1)
crediting the account of the Borrower on the books of the Swing Line Lender in Same Day Funds or
(2) wire transfer of such funds in accordance with instructions provided to (and reasonably
acceptable to) the Swing Line Lender by the Borrower.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Revolving Lender make a Base Rate Revolving Loan in an
amount equal to such Revolving Lender’s Applicable Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified therein for
the principal amount of Base Rate Loans, but subject to the unutilized portion of the
Revolving Commitments and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Revolving Lender shall make an
amount equal to its Applicable Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the Swing Line
Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than
1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have
made a Base Rate Revolving Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.




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




     (iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the Swing Line Lender any amount required to be paid by such



43









 







Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c)
by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled
to recover from such Revolving Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the applicable Overnight Rate from time to time in effect. A certificate
of the Swing Line Lender submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




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



     (d) Repayment of Participations.




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




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



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



44









 







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



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.05 Prepayments.



     (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time
or from time to time voluntarily prepay Term Loans and Revolving Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the Administrative
Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of
prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Alternative Currencies, and (C) on the date of prepayment of
Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in
a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any
prepayment Eurocurrency Rate Loans in Alternative Currencies shall be in a minimum principal amount
of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv) any prepayment of Base
Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such
notice shall specify whether the Loans to be prepaid are Term Loans or Revolving Loans, the date
and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Loans are
to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify
each Term Lender or Revolving Lender, as the case may be, of its receipt of each such notice, and
of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given
by the Borrower, the applicable Borrower shall irrevocably make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Loans of the applicable Lenders in accordance with their
respective Applicable Percentages. Each prepayment of Term Loans under this Section
2.05(a) shall be applied ratably to the then remaining scheduled principal amortization
payments of the Term Loans under Section 2.07(a).



     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 2:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



     (c) If the Administrative Agent notifies the Borrower at any time that the Total Revolving
Outstandings at any such time exceed an amount equal to 105% of the Aggregate



45









 







Revolving Commitments then in effect, then, within two Business Days after receipt of such
notice, the Borrower shall prepay Revolving Loans and/or the Borrower shall Cash Collateralize the
L/C Obligations in an aggregate amount sufficient to reduce the Total Revolving Outstandings as of
such date of payment to an amount not to exceed 100% of the Aggregate Revolving Commitments then in
effect; provided, however, that, subject to the provisions of Sections
2.03(g)(ii), the Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(c) unless after the prepayment in full of the Revolving Loans
the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect. The
Administrative Agent may, at any time and from time to time after the initial deposit of such Cash
Collateral, request additional Cash Collateral be provided in order to protect against the results
of further exchange fluctuations.



     (d) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount
of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal
to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after
receipt of such notice, the Borrower shall prepay Revolving Loans in an aggregate amount sufficient
to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the
Alternative Currency Sublimit then in effect.



     2.06 Termination or Reduction of Commitments. (a) The Borrower may, upon notice to the
Administrative Agent, terminate the Revolving Commitments, or from time to time permanently reduce
the Revolving Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Revolving Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, and
(iv) if, after giving effect to any reduction of the Revolving Commitments, the Alternative
Currency Sublimit, the Letter of Credit Sublimit, or the Swing Line Sublimit exceeds the amount of
the Aggregate Revolving Commitments, such Sublimit shall be automatically reduced by the amount of
any such excess. The Administrative Agent will promptly notify the Revolving Lenders of any such
notice of termination or reduction of the Revolving Commitments. The amount of any such Revolving
Commitment reduction shall not be applied to the Alternative Currency Sublimit or the Letter of
Credit Sublimit unless otherwise specified by the Borrower. Any reduction of the
Aggregate Commitments shall be applied to the Revolving Commitment of each Revolving Lender
according to its Applicable Percentage. All fees accrued until the effective date of any
termination of the Revolving Commitments shall be paid on the effective date of such termination.



     (b) The Term Commitment of each Term Lender as set forth in Schedule 2.01 as of the
date hereof shall be automatically and permanently reduced by the amount of the Term Loan made by
such Term Lender on the Closing Date.



     (c) The Term Commitment of each Term Lender as set forth on any supplement to Schedule
2.01 delivered by the Administrative Agent pursuant to Section 2.15(d) in respect of
any Term Commitment Increase Effective Date shall be automatically and permanently reduced



46









 








by the amount of the Incremental Term Loan made by such Term Lender on such Term Commitment
Increase Effective Date.



     2.07 Repayment of Loans. (a) The Borrower shall repay to the Term Lenders (i) on the last
Business Day of each March, June, September and December (commencing with the first such date
following the third anniversary of the Closing Date) aggregate Term Loans in the following amounts:
(A) on each of the first four such quarterly installment payment dates following the third
anniversary of the Closing Date, an amount equal to 6.25% of the Total Initial Term Outstandings
and (B) on each of the next three such quarterly installments and on the Maturity Date, an amount
equal to 18.75% of the Total Initial Term Outstandings, and (ii) on the Maturity Date, the Total
Outstanding Amount of Term Loans on such date.



     (b) The Borrower shall repay to the Revolving Lenders on the Maturity Date the Outstanding
Amount of Revolving Loans on such date.



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



     2.08 Interest. (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency
Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period
at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the
Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent
from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost;
(ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate; and (iii) each Swing Line
Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing
date at a rate per annum equal to the Base Rate plus the Applicable Rate, provided
that, prior to any Revolving Lender funding its risk participation in any Swing Line Loan pursuant
to Section 2.04, the Swing Line Lender may agree to accept interest on Swing Line Loans
which are timely repaid in full by the Borrower to the Swing Line Lender which interest has been
calculated at any other lawful rate of interest as the Borrower and the Swing Line Lender may
separately agree from time to time.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at the Default Rate to the fullest extent permitted by applicable
Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), then
upon the request of the Required Lenders, such amount shall thereafter bear interest at the
Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at the Default Rate to the fullest extent permitted by applicable Laws.



47









 






     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



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



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



     (a) Facility Fee. The Borrower shall pay to the Administrative Agent for the account
of each Revolving Lender in accordance with its Applicable Percentage, a facility fee in Dollars
equal to the Applicable Rate times the actual daily amount of the Aggregate Revolving
Commitments (or, if the Aggregate Revolving Commitments have terminated, on the Outstanding Amount
of all Revolving Loans, Swing Line Loans and L/C Obligations), regardless of usage. The facility
fee shall accrue at all times during the Availability Period (and thereafter so long as any
Revolving Loans, Swing Line Loans or L/C Obligations remain outstanding), including at any time
during which one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the Maturity Date (and,
if applicable, thereafter on demand). The facility fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.



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




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



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees
and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year),
or, in the case of interest in respect of Loans denominated in Alternative Currencies as to which
market practice differs from the foregoing, in accordance with such market practice. Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid; provided that
any Loan that is repaid on the same day on which it is made



48









 







shall, subject to Section 2.12(a), bear interest for one day. Each determination by
the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes absent manifest error.



     2.11 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender to the
Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the
Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and
endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and
payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     (c) Entries made in good faith by the Administrative Agent in the Register pursuant to
subsections (a) and (b) above, and by each Lender in its accounts pursuant to subsections (a) and
(b) above, shall be prima facie evidence of the amount of principal and interest due and payable
or to become due and payable from the Borrower to, in the case of the Register each Lender and, in
the case of such account or accounts, such Lender, under this Agreement and the other Loan
Documents, absent manifest error; provided that the failure of the Administrative Agent or such
Lender to make any entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the Borrower under this
Agreement and the other Loan Documents.



     2.12 Payments Generally; Administrative Agent’s Clawback. (a) General. All payments
to be made by the Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein and except with
respect to principal of and interest on Loans denominated in an Alternative Currency, all payments
by the Borrower hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office
in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder with respect to
principal and interest on Loans denominated in an



49









 







Alternative Currency shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office
in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by
the Administrative Agent on the dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under this Agreement be made
in the United States. If, for any reason, the Borrower is prohibited by any Law from making any
required payment hereunder in an Alternative Currency, the Borrower shall make such payment in
Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative
Agent will promptly distribute to each applicable Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent (i) after 2:00
p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall in each case be
deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by the Borrower shall become due on a day other than
a Business Day, payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the
Overnight Rate and (B) in the case of a payment to be made by the Borrower, the interest rate
applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.




     (ii) Payments by the Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the



50









 







Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with
interest thereon, for each day from and including the date such amount is distributed to it
to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.



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



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



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



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



     (f) Charge Authorized. The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder, or in the case of a Lender under
the Note held by such Lender, to charge from time to time against any and all of the Borrower’s
accounts with such Lender any amount so due.



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it
resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans
or participations and accrued interest thereon greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall



51









 







be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them, provided that:




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




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



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



     2.14 Increase in Revolving Commitments.



     (a) Request for Increase in Revolving Commitments. Provided there exists no Default,
upon notice to the Administrative Agent (which shall promptly notify the Revolving Lenders), the
Borrower may, from time to time after the Closing Date, request an increase in the Aggregate
Revolving Commitments by an aggregate amount (for all such requests and any requests for additional
Term Commitments pursuant to Section 2.15) not to exceed an additional $1,000,000,000 of
Commitments; provided that any such request for an increase shall be in a minimum amount of
$100,000,000; and provided, further, that the Borrower shall not make more than an
aggregate of four requests for an increase in Commitments under this Section 2.14 and
Section 2.15. At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Revolving Lender is requested
to respond (which shall in no event be less than ten Business Days from the date of delivery of
such notice to the Revolving Lenders).



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



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Revolving Lender of the Revolving Lenders’ responses to
each request made hereunder. To achieve the full amount of a requested increase and subject to the
approval of the Borrower and the L/C Issuer (which approvals shall not be unreasonably



52









 







withheld), the Administrative Agent may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel.



     (d) Effective Date and Allocations. If the Aggregate Revolving Commitments are
increased in accordance with this Section, the Administrative Agent and the Borrower shall
determine the effective date (each a “Revolving Commitment Increase Effective Date”) and
the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower
and the Lenders of the final allocation of such increase and the Revolving Commitment Increase
Effective Date, which notice shall include an amended and restated Schedule 2.01 which
reflects the Revolving Commitment of each Revolving Lender after giving effect to such final
allocation.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower
dated as of the Revolving Commitment Increase Effective Date (in sufficient copies for each Lender)
signed by a Responsible Officer of the Borrower (i) certifying and attaching the resolutions
adopted by the Borrower approving or consenting to such increase, and (ii) certifying that, before
and after giving effect to such increase, (A) the representations and warranties contained in
Article V and the other Loan Documents are true and correct on and as of the Revolving
Commitment Extension Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.14, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (B) no Default exists. The Borrower shall prepay any Revolving Loans outstanding on the
Revolving Commitment Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.05) to the extent necessary to keep the outstanding Revolving Loans ratable with
any revised Applicable Percentages arising from any nonratable increase in the Revolving
Commitments under this Section.



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



     2.15 Increases in Term Commitments.



     (a) Request for Additional Term Commitments. Provided there exists no Default, upon
notice to the Administrative Agent (which shall promptly notify the Term Lenders), the Borrower
may, from time to time after the Closing Date and prior to the third anniversary of the Closing
Date, request additional Term Commitments in an aggregate amount (for all such requests, and any
increases in the Aggregate Revolving Commitments requests pursuant to Section 2.14) not to
exceed an additional $1,000,000,000 of Commitments; provided that any such request shall be
in a minimum amount of $100,000,000; and provided, further, that the Borrower shall
not make more than an aggregate of four requests for an increase in Commitments under Section
2.14 and this Section 2.15. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period within which each Term
Lender is requested to respond (which shall in no event be less than ten Business Days from the
date of delivery of such notice to the Term Lenders).



53









 





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



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Term Lender of the Term Lenders’ responses to each request
made hereunder. To achieve the full amount of a requested increase and subject to the approval of
the Borrower and the L/C Issuer (which approvals shall not be unreasonably withheld), the
Administrative Agent may also invite additional Eligible Assignees to become Lenders pursuant to a
joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.



     (d) Effective Date and Allocations. If additional Term Commitments are offered in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date, which shall be a date prior to the third anniversary of the Closing Date (the
“Term Commitment Increase Effective Date”), and the final allocation of such increase. The
Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of
such increase and the Term Commitment Increase Effective Date, which notice shall include a
supplement to Schedule 2.01 which reflects the additional Term Commitments of each Term
Lender after giving effect to such allocation.



     (e) Conditions to Effectiveness of Additional Term Commitments. As a condition
precedent to such additional Term Commitments, the Borrower shall deliver to the Administrative
Agent a certificate of the Borrower dated as of the Term Commitment Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of the Borrower (i) certifying
and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and
(ii) certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and correct on and
as of the Term Commitment Increase Effective Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Section 2.15, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, and (B) no Default exists.



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



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the respective Borrower hereunder or under any other Loan Document shall be



54









 







made free and clear of and without reduction or withholding for any Indemnified Taxes or Other
Taxes, provided that if the Borrower shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or L/C
Issuer, as the case may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.



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



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



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



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



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




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




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




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




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



     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the
Administrative Agent or the Borrower shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrower pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in such other jurisdiction. Each Lender shall
promptly (i) notify the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws of any such jurisdiction that the Borrower make any deduction or withholding for
taxes from amounts payable to such Lender. Additionally, the Borrower shall promptly deliver to
the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably
request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and
forms required by any relevant taxing authority under the Laws of any jurisdiction, duly executed
and completed by the



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Borrower, as are required to be furnished by such Lender or the Administrative Agent under
such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or
Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



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



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof
that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in
the applicable offshore interbank market for such currency for the



57









 







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



     3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.



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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
reflected in the Eurocurrency Rate and (B) the requirements of the Bank of England and the
Financial Services Authority or the European Central Bank reflected in the Mandatory Cost,
other than as set forth below) or the L/C Issuer;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer);




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




     (iv) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request


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of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as
the case may be, for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



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



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



59









 





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



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



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


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



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank
market for such currency for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders.



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



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



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



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ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:



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




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




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




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents to which the Borrower is a party;




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that (A) the Borrower is duly organized or formed, and that the Borrower
is validly existing, in good standing and qualified to engage in business in its
jurisdiction of organization and in the State of Maryland, including, certified copies of
the Borrower’s Organization Documents, and certificates of good standing and/or
qualification to engage in business and tax clearance certificates for the Borrower from the
States of Delaware and Maryland and (B) each Domestic Subsidiary is validly existing, in
good standing and qualified to engage in business in its jurisdiction of organization (other
than any such Domestic Subsidiary organized as a partnership under the laws of the State of
Colorado);




     (v) copies of the financial statements referred to in Sections 5.05(a) and
(b);




     (vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied,
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) that there are no consents, licenses and
approvals required in connection with the execution, delivery and performance of the Loan
Documents by the Borrower or for the Loan Documents to be enforceable against the Borrower,
other than those that have been obtained and remain in full force and effect;



61









 






     (vii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Borrower most recently ended prior to the Closing Date, signed by a Responsible
Officer of the Borrower;




     (viii) evidence that, effective as of and concurrently with the Closing Date, each
Subsidiary Guarantor (as defined in the Note Purchase Agreements) has been discharged from
all its obligations and liabilities under the Subsidiary Guaranty Agreement (as defined in
the Note Purchase Agreements);




     (ix) evidence that the Existing Credit Agreement has been or concurrently with the
Closing Date is being terminated;




     (x) a favorable opinion of Baker & McKenzie, counsel to the Borrower, addressed to the
Administrative Agent, the L/C Issuer and each Lender, as to the matters set forth in
Exhibit F hereto and such other matters concerning the Borrower and the Loan
Documents as the Required Lenders may reasonably request; and




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



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



     (c) The Borrower shall have paid all fees, charges and disbursements of counsel to the
Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional
amounts of fees, charges and disbursements of counsel shall constitute its reasonable estimate of
fees, charges and disbursements of counsel incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts
between the Borrower and the Administrative Agent).



     (d) The Closing Date shall have occurred on or before June 30, 2004.



     (e) Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other
Type, or a continuation of Eurocurrency Rate Loans), and any additional Term Commitments in
accordance with Section 2.15 is subject to the following conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V or any
other Loan Document, or which are contained in any document furnished at any time under or in



62









 







connection herewith or therewith, shall be true and correct on and as of the date of such
Credit Extension, (i) except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of such earlier date, and
(ii) except that for purposes of this Section 4.02, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to subsections (a) and (b), respectively, of Section
6.01.



     (b) No Default shall exist, or would result from any such proposed Credit Extension or the
application of the Proceeds thereof.



     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall
have received a Request for Credit Extension, in accordance with the requirements hereof.



     (d) In the case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent or the Required Revolving Lenders would make it impracticable for such Credit
Extension to be denominated in the relevant Alternative Currency.



     (e) The Administrative Agent shall have received such other approvals, opinions or documents
as the L/C Issuer or any Lender, through the Administrative Agent, may reasonably request.



     Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurocurrency Rate Loans) shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




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



     5.01 Existence, Qualification and Power; Compliance with Laws. The Borrower and each
Restricted Subsidiary thereof (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses, authorizations, consents and
approvals to (i) own its assets and carry on its business and (ii) in the case of the Borrower,
execute, deliver and perform its obligations under the Loan Documents, and (c) is duly qualified
and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such qualification or license;
except in each case referred to in subsection (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by the Borrower
of each Loan Document to which the Borrower is party, have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a) contravene



63









 







the terms of any of the Borrower Organization Documents, (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any payment to be made
under (i) any Contractual Obligation to which the Borrower is a party or affecting the Borrower or
the properties of the Borrower or any of its Restricted Subsidiaries or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its
property is subject; or (c) violate any Law to which the Borrower or its property is subject. The
Borrower and each Restricted Subsidiary is in compliance with all Contractual Obligations referred
to in clause (b)(i), except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.



     5.03 Governmental Authorization; Other Consents. Except to the extent the same have been
obtained, no approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, the Borrower of this
Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document to which the
Borrower is a party, when delivered hereunder, will have been, duly executed and delivered by the
Borrower. This Agreement constitutes, and each other Loan Document to which the Borrower is party
when so delivered will constitute, a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii)
fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.



     (b) The unaudited consolidated financial statements of the Borrower and its Subsidiaries dated
March 31, 2004, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present in all material respects the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments. Schedule 5.05 sets forth all material indebtedness and
other material liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries
as of the date of such financial statements, including liabilities for taxes, material commitments
and Indebtedness.



64









 





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



     (d) The consolidated forecasted balance sheet and statements of income and cash flows of the
Borrower and its Subsidiaries and the consolidating forecasted balance sheet and statements of
income and cash flows of each Unrestricted Subsidiary delivered pursuant to Section 6.01(c)
were prepared in good faith on the basis of the assumptions stated therein, which assumptions were
fair in light of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower’s best estimate of its goals for its future
financial performance.



     5.06 Litigation. There are no (a) actions, suits, proceedings, investigations, litigations,
claims, disputes or proceedings pending or, to the knowledge of the Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority, or (b)
orders, decrees, judgments, rulings, injunctions, writs, temporary restraining orders or other
orders of any nature issued by any Governmental Authority, by or against the Borrower or any of the
Restricted Subsidiaries or against any of their respective properties or revenues that (i) purport
to affect, pertain to, or enjoin or restrain the execution, delivery or performance of, this
Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby,
(ii) in the case of any such proceedings which are reasonably likely to be adversely determined,
either individually or in the aggregate, if determined adversely, could reasonably be expected to
have a Material Adverse Effect or (iii) purport to affect the legality, validity or enforceability
of the Loan Documents or the consummation of the transactions contemplated hereby or thereby.



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



     5.08 Ownership of Property; Liens. Each of the Borrower and each Restricted Subsidiary has
good record and marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except to the extent the same
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The property of the Borrower and its Restricted Subsidiaries is subject to no Liens, other
than Liens permitted by Section 7.01.



     5.09 Environmental Compliance. The Borrower has reasonably concluded that the effect of
existing Environmental Laws and any claims alleging potential liability or responsibility for
violation of any Environmental Law on the respective businesses, operations and properties of the
Borrower and its Restricted Subsidiaries could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.



     5.10 Insurance. The Borrower and its Restricted Subsidiaries maintain with financially sound
and reputable insurance companies which are not Affiliates of the Borrower,



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insurance with respect to their properties and businesses against loss or damage of the kinds
customarily insured against by Persons engaged in similar businesses and owning similar properties
in localities where the Borrower or its applicable Restricted Subsidiary operates of such types and
in such amounts (after giving effect to any self-insurance compatible with such standards), with
such deductibles and covering such risks as are customarily carried under similar circumstances by
such Persons.



     5.11 Taxes. The Borrower and its Restricted Subsidiaries have timely filed all Federal,
material state and other material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and payable whether or not
shown on any tax return, except those (a) which are being contested in good faith by appropriate
proceedings diligently conducted or (b) in respect of which an extension therefore has been filed
on a timely basis and, in each case, for which adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against the Borrower or any of its Restricted
Subsidiaries that would, if made, have a Material Adverse Effect.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other
Federal or state Laws, except where noncompliance could not reasonably be expected to result in a
Material Adverse Effect. Each Plan that is intended to qualify under Section 401(a) of the Code
has received a favorable determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best knowledge of the
Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. The
Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code, except for any such contributions which individually or in the aggregate
do not exceed the Threshold Amount, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could
be subject to Sections 4069 or 4212(c) of ERISA.



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     5.13 Equity Interests. As of the Closing Date and as of the date of delivery of each
supplement to Schedule 5.13 pursuant to Section 6.02(f) or (g), the
Borrower and each Restricted Subsidiary has no Subsidiaries other than those specifically disclosed
in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and (with respect to such Equity Interests in
Domestic Subsidiaries) nonassessable and are owned by the Borrower or the applicable Restricted
Subsidiary in the amounts specified on Part (a) of Schedule 5.13 free and clear of
all Liens. As of the Closing Date and as of the date of delivery of each supplement to
Schedule 5.13 pursuant to Section 6.02(f) or (g), (i) the Borrower and each
Restricted Subsidiary has no equity investments in any other corporation or entity other than those
specifically disclosed in Part (b) of Schedule 5.13 and (ii) all of the outstanding
Equity Interests in the Borrower have been validly issued, are fully paid and nonassessable and are
owned by each Significant Shareholder in the amounts specified on Part (c) of Schedule
5.13.



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



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB) or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Restricted Subsidiaries on a consolidated basis) subject to the provisions of
Section 7.01 or Section 7.05 or subject to any restriction contained in any
agreement or instrument between any Borrower and any Lender or any Affiliate of any Lender relating
to Indebtedness and within the scope of Section 8.01(e) will be margin stock.



     (b) Neither the Borrower nor any Restricted Subsidiary (i) is a “holding company,” or a
“subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a
“subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding
Company Act of 1935, or (ii) is or is required to be registered as an “investment company” under
the Investment Company Act of 1940.



     5.15 Disclosure. No report, financial statement, certificate or other written information
furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement and the other Loan
Documents or delivered hereunder or under any other Loan Document (in each case, as modified or
supplemented by other information so furnished) contained any material misstatement of fact or
omitted to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading at the time the same were so provided;
provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.



     5.16 Compliance with Laws. Each of the Borrower and each Restricted Subsidiary is in
compliance in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in good faith
by



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appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



     5.17 Intellectual Property; Licenses, Etc. The Borrower and the Restricted Subsidiaries own,
or possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
“IP Rights”) that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person, except for any such conflicts
which, individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect. To the best knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Restricted Subsidiary infringes upon any rights held by any other
Person, except for any such infringement which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of
the foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02 and 6.03) cause each Restricted Subsidiary to:



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



     (a) as soon as available, but in any event within 120 days after the end of each fiscal year
of the Borrower (commencing with the fiscal year ended December 31, 2004), a consolidated balance
sheet of the Borrower and its Subsidiaries and a consolidating balance sheet of each Unrestricted
Subsidiary as at the end of such fiscal year, and the related consolidated (and in the case of each
Unrestricted Subsidiary, consolidating) statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such
consolidated balance sheet and statements to be audited and accompanied by a report and opinion of
an independent certified public accountant of nationally recognized standing reasonably acceptable
to the Required Lenders, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or like qualification
or exception or any qualification or exception as to the scope of such audit and such consolidating
balance sheet and statements to be certified by a Responsible Officer of the Borrower to the effect
that such statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Borrower and its Subsidiaries;



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     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended
June 30, 2004), a consolidated balance sheet of the Borrower and its Subsidiaries and consolidating
balance sheet of each Unrestricted Subsidiary as at the end of such fiscal quarter, and the related
consolidated (and, in the case of each Unrestricted Subsidiary consolidating) statements of income
or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of
the Borrower’s (or Unrestricted Subsidiary’s, as applicable), fiscal year then ended, setting forth
in each case in comparative form the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and
such consolidated balance sheet and statements to be certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity
and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes and such consolidating balance sheet and
statements to be certified by a Responsible Officer of the Borrower to the effect that such balance
sheet and statements are fairly stated in all material respects when considered in relation to the
consolidated balance sheet and financial statements of the Borrower and its Subsidiaries; and



     (c) as soon as available, but in any event not later than 60 days after the end of each fiscal
year of the Borrower (commencing with the fiscal year ending December 31, 2004), forecasts prepared
by management of the Borrower, in form reasonably satisfactory to the Administrative Agent, of
consolidated balance sheets and statements of income or operations and cash flows of the Borrower
and its Subsidiaries and consolidating statements of income of each Unrestricted Subsidiary for the
immediately following fiscal year (including the fiscal year in which the Maturity Date occurs).



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



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



     (a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of its independent certified public accountants certifying
such financial statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default under the financial covenants set forth herein or in the Note
Purchase Agreements or, if any such Default shall exist, stating the nature and status of such
event;



     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial statements
for the fiscal quarter ended June 30, 2004), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower;



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     (c) promptly after receipt thereof, copies of any detailed audit reports, management letters
or recommendations submitted to the board of directors (or the audit committee of the board of
directors) or shareholders of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Restricted Subsidiary, or any audit of any of them;



     (d) promptly after the same are available, (i) copies of management discussion and analysis in
relationship to the financial statements delivered pursuant to Sections 6.01(a) and
6.01(b) and (ii) copies of each annual report, proxy or financial statement sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto; and



     (e) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of the Borrower or any Restricted Subsidiary thereof pursuant to the
terms of the Note Purchase Agreements or any other note purchase agreement, indenture, loan or
credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to
Section 6.01 or any other clause of this Section 6.02;



     (f) promptly, and in any event (i) within five (5) Business Days after the Designation of any
Restricted Subsidiary as an Unrestricted Subsidiary or of an Unrestricted Subsidiary as a
Restricted Subsidiary, a certificate of a Responsible Officer of the Borrower certifying (A) the
name and jurisdiction of organization of such Subsidiary, (B) a Designation of any such Restricted
Subsidiary as an Unrestricted Subsidiary or of any such Unrestricted Subsidiary as a Restricted
Subsidiary, and (C) that no Default has occurred and is continuing or has resulted by reason of
such Designation, including, pursuant to Sections 7.02 and 7.11, together with a
schedule demonstrating in reasonable detail the calculations used to determine compliance with such
Sections, and (ii) within 30 days after the organization or acquisition of any Subsidiary by the
Borrower or any Restricted Subsidiary, a certificate of a Responsible Officer of the Borrower
certifying as to (A) the name, jurisdiction of organization and brief description of the business
or proposed business of such Subsidiary, (B) if such Subsidiary is to be an Unrestricted
Subsidiary, a Designation to that effect, (C) that, no Default has occurred and is continuing or
has resulted by reason of such Designation, including, pursuant to Sections 7.02 and
7.11, together with a schedule demonstrating in reasonable detail the calculations used to
determine compliance with such Sections, and (D) attaching a supplement to Schedule 5.13
reflecting the addition of such Subsidiary (and any other information contemplated by Section
5.13 not already reflected in said Schedule, as so previously supplemented);



     (g) promptly, and in any event not later than the date of delivery of the financial statements
referred to in Section 6.01(a), a supplement to Schedule 5.13 setting forth any
information contemplated by Section 5.13 not already reflected in said Schedule, as so
previously supplemented; and



     (h) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan



70









 







Documents, as the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Sections 6.01(a) or (b) or
Section 6.02(d) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents, or provides a link
thereto on the Borrower’s website on the Internet at the website address listed on Schedule
10.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender, the L/C Issuer and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent, the L/C Issuer or any Lender that requests the Borrower to deliver such paper
copies until a written request to cease delivering paper copies is given by the Administrative
Agent, the L/C Issuer or such Lender and (ii) the Borrower shall notify (which may be by facsimile
or electronic mail) the Administrative Agent, the L/C Issuer and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(c) to the Administrative Agent. The Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the documents (except for such
Compliance Certificate) referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender and the L/C Issuer
shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



     6.03 Notices. Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;



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



     (c) of the occurrence of any ERISA Event;



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Restricted Subsidiary; and



     (e) of any Control Event not later than five Business Days after any Responsible Officer of
the Borrower shall have obtained knowledge thereof.



     Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each



71









 







notice pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been breached. Notices under
Section 6.03(e) are subject to Section 10.07.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable in
accordance with its customary practices (a) all tax liabilities, fees, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Restricted Subsidiary, (b) all lawful claims which, if
unpaid, would by Law become a Lien upon its property (other than any Lien permitted under
Section 7.01), (c) all its Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing such Indebtedness; and
(d) all its other obligations and liabilities; provided, however, that the Borrower
and its Restricted Subsidiaries may contest any such other obligation or liability in good faith by
appropriate proceedings diligently conducted and for which the Borrower and the Applicable
Subsidiary are maintaining an adequate reserve in accordance with GAAP and, without duplication, a
cash deposit or credit availability reserve during the pendency of such contest by maintaining (i)
a deposit of cash or Cash Equivalents in the amount of such contested obligation or liability in a
separate deposit account or securities account of the Borrower or the applicable Restricted
Subsidiary which is maintained for such purpose and is not subject to any Lien, (ii) undrawn
availability hereunder such that on any day during the pendency of such contest on a pro forma
basis the Borrower may make a Borrowing of Revolving Loans in the amount of such contested
obligation or liability and no Default would result or (C) any combination of such a deposit and
such undrawn availability in an aggregate amount equal to the amount of such contested obligation
or liability.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing (or equivalent status) under the Laws of the
jurisdiction of its organization except in a transaction permitted by Sections 7.04 or
7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses,
approvals and franchises in each case which are necessary or desirable in the normal conduct of its
business, except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation or non-renewal of which could reasonably be expected
to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies which are not Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar businesses and owning similar properties in localities where the Borrower or the
applicable Restricted Subsidiary operates, of such types and in such



72









 







amounts (after giving effect to any self-insurance compatible with such standards) with such
deductions and covering such risks, as are customarily carried under similar circumstances by such
other Persons.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



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



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its Responsible Officers, at any meetings which may
be scheduled for that purpose by the Administrative Agent (at the request of any Lender) not more
than once in any calendar quarter; provided, that the Administrative Agent should give all
Lenders and the Borrower not less than five (5) Business Days’ advance notice of any such requested
meeting; and provided, further, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing (without the necessity of scheduling a meeting for that
purpose) at the expense of the Borrower at any time during normal business hours on not less than
one (1) Business Days’ advance written notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions to refinance all loans and
other obligations outstanding under the Existing Credit Agreement on the Closing Date and for
working capital, to finance capital expenditures, acquisitions, Investments, Restricted Payments
and other corporate purposes not in contravention of any Law applicable to the Borrower or the
applicable Restricted Subsidiary or of any Loan Document.



     6.12 Further Assurances. As soon as is reasonably practicable after the Borrower has obtained
a private placement rating of NAIC-2 or better from the National Association of Insurance
Commissioners for the Indebtedness under the Note Purchase Agreements, the Borrower shall take all
commercially reasonable actions to solicit the consent of the requisite holders of such
Indebtedness to an amendment under each Note Purchase Agreement to Section 10.1 of each Note
Purchase Agreement which modifies the financial covenants thereunder to be no more onerous on the
Borrower than are the covenants provided in Section 7.12 hereunder, which amendments shall
be in form and substance reasonably satisfactory to the Administrative Agent.



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ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor
with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured
or benefited thereby is permitted by Section 7.03(b);



     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, laborer’s, landlord’s
or other like Liens arising in the ordinary course of business which are not overdue for a period
of more than 30 days or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred in the ordinary
course of business;



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;



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     (i) Liens either (i) securing obligations (other than Indebtedness) under stockholder
agreements, joint venture agreements, voting trust agreements and similar agreements between the
Borrower and/or a Restricted Subsidiary, on the one hand, and any other Persons holding Equity
Interests in a Subsidiary of the Borrower or in any other Person in which the Borrower or such
Restricted Subsidiary has an Investment, on the other hand, or (ii) in the nature of the voting,
equity transfer, redemptive rights or similar terms under any such agreement or other term (other
than Liens securing Indebtedness) customarily found in such agreements, in each case, encumbering
the Borrower’s or such Restricted Subsidiary’s Equity Interests or other Investments in such
Subsidiary or other Person;



     (j) Liens securing Indebtedness of a Restricted Subsidiary to the Borrower or another
Restricted Subsidiary permitted under Section 7.03(c); provided, however,
that no promissory note or instrument evidencing any such Indebtedness shall be subject to any Lien
or otherwise pledged in favor of any Person other than the Borrower or a Restricted Subsidiary;



     (k) Liens securing Indebtedness permitted under Section 7.03(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition; and



     (l) Liens securing Indebtedness permitted under Section 7.03(f) and/or (g);
provided that such Liens do not encumber property with an aggregate fair market value
which, together with the fair market value of the property subject to any Liens described in
Section 7.01(k), is in excess of 15% of Consolidated Total Assets.



     7.02 Investments. Make any Investments, except:



     (a) Investments held by the Borrower or a Restricted Subsidiary in Cash Equivalents;



     (b) (i) advances to officers, directors and employees of the Borrower and Restricted
Subsidiaries (A) for travel, entertainment, relocation and analogous ordinary business purposes in
an aggregate amount not to exceed $1,000,000 at any time outstanding, and (B) pursuant to employee
compensation plans and unit appreciation plans of the Borrower approved by the shareholders of the
Borrower; and (ii) Investments elected by employees of the Borrower and its Restricted Subsidiaries
in respect of obligations of the Borrower and its Restricted Subsidiaries to such employees under
employee benefit plans;



     (c) Investments of the Borrower in any Restricted Subsidiaries; provided,
however, that both immediately before and after giving effect to such Investment no Default
shall have occurred and be continuing and Investments of any Restricted Subsidiary in the Borrower
or in another Restricted Subsidiary;



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss; and



75









 





     (e) other Investments; provided, however, that both immediately before and
after giving effect to such other Investment no Default shall have occurred and be continuing and;
provided, further, that immediately after giving effect to any such other
Investment which is in an Unrestricted Subsidiary, including any such Investment in a newly
organized or acquired Unrestricted Subsidiary and any Designation of an existing Restricted
Subsidiary as an Unrestricted Subsidiary, if on a pro forma basis, as of the last day of the most
recent fiscal quarter in respect of which a Compliance Certificate has been delivered pursuant to
Section 6.02(b), the combined Operating Cash Flow of all Unrestricted Subsidiaries for the
four quarter period then ended is a negative amount, the absolute amount of such negative amount
(expressed as a positive amount) shall not exceed 50% of Consolidated Operating Cash Flow for such
period.



     7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder;



     (c) (i) Indebtedness (other than Guarantees) of the Borrower to a Restricted Subsidiary, and
Indebtedness (other than Guarantees) of a Restricted Subsidiary to the Borrower or another
Restricted Subsidiary; provided, however, that at the time such Indebtedness is
incurred no Event of Default shall have occurred and be continuing; and (ii) Guarantees by the
Borrower of Indebtedness of a Restricted Subsidiary to a Person (other than a Restricted
Subsidiary), and Guarantees by a Restricted Subsidiary of Indebtedness of the Borrower or another
Restricted Subsidiary to a Person (other than a Restricted Subsidiary); provided that such
Indebtedness is either (A) in respect of ordinary course obligations of a Restricted Subsidiary
(other than any Indebtedness of the type described in clauses (a) to (f) of the definition
thereof), or (B) Indebtedness otherwise permitted under this Section 7.03; and
provided, further, that both immediately before and after the incurrence of any
such Indebtedness no Default shall have occurred and be continuing;



     (d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract; provided that (i) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation; and (ii) such Swap Contract does not contain any provision exonerating
the non-defaulting party from its obligation to make payments on outstanding transactions to the
defaulting party;



     (e) purchase money Indebtedness, including Capitalized Leases or Off-Balance Sheet
Obligations; provided, however, (i) the sum of the total aggregate amount of all
such



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Indebtedness at any one time outstanding for the Borrower and its Restricted Subsidiaries
plus the sum of the total outstanding principal amount of all Indebtedness of the types
described under Section 7.03(f) and (g) shall not exceed 15% of Consolidated Total
Assets, (ii) such Indebtedness when incurred shall not exceed 100% of the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition, (iii) such
Indebtedness is created and any Lien attaches to such property concurrently with or within
forty-five (45) days of the acquisition thereof, and (iv) such Lien does not at any time encumber
any property other than the property financed by such Indebtedness;



     (f) other secured Indebtedness of the Borrower; provided, however, that, both
immediately before and after the incurrence of such Indebtedness, no Default shall have occurred
and been continuing; and provided, further, that the total outstanding principal
amount of such Indebtedness, plus the total outstanding principal amount of all Indebtedness of the
types described under Section 7.03(e) and (g) shall not exceed 15% of Consolidated
Total Assets;



     (g) other secured and unsecured Indebtedness of Restricted Subsidiaries; provided,
however, that both immediately before and after the incurrence of any such Indebtedness no
Default shall have occurred and been continuing; and provided, further, that the
sum of the total outstanding principal amount such Indebtedness plus the total outstanding
principal amount of all Indebtedness of the types described under Section 7.03(e) and
(f) shall not exceed 15% of Consolidated Total Assets; and



     (h) additional unsecured Indebtedness of the Borrower; provided, however, that
both immediately before and after the incurrence of any such Indebtedness no Default shall have
occurred and be continuing.



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



     (a) the Borrower may merge with any other Person; provided that the Borrower shall be
the continuing or surviving Person; and



     (b) any Restricted Subsidiary (for these purposes, the “Subject Restricted
Subsidiary”) may merge, liquidate, consolidate with or into:




     (i) the Borrower; provided that the Borrower shall be the continuing or
surviving Person,




     (ii) a wholly-owned Restricted Subsidiary; provided that such wholly-owned
Restricted Subsidiary shall be the continuing or surviving Person; or




     (iii) any other Subsidiary or other Person; provided, that if a wholly-owned
Restricted Subsidiary shall not be the continuing or surviving Person, then such transaction
shall be deemed to be a Disposition of the following percentage of the assets of the Subject
Restricted Subsidiary (and such deemed Disposition shall be subject to, and shall be
permitted only to the extent provided by, Section 7.05(f));



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     (A) if the continuing or surviving Person is not a Restricted Subsidiary, 100%
of the assets of the Subject Restricted Subsidiary or,




     (B) if the continuing or surviving Person is a Restricted Subsidiary in which
the Borrower and its other Restricted Subsidiaries own, in aggregate, a percentage
of the outstanding Equity Interests of such Restricted Subsidiary which is less than
the percentage of the outstanding Equity Interests of the Subject Restricted
Subsidiary owned by the Borrower and its Restricted Subsidiaries, the percentage of
all the assets of the Subject Restricted Subsidiary which is equal to the difference
between (1) the percentage of the outstanding Equity Interests in the Subject
Restricted Subsidiary owned by the Borrower and its Restricted Subsidiaries
immediately before such transaction and (2) the percentage of the outstanding Equity
Interests in the continuing or surviving Person owned by the Borrower and its
Restricted Subsidiaries immediately after giving effect to such transaction.



     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:



     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;



     (b) Dispositions of inventory in the ordinary course of business;



     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;



     (d) Dispositions of property by any Restricted Subsidiary to the Borrower or to a Restricted
Subsidiary which is wholly-owned by the Borrower and/or its other Restricted Subsidiaries;



     (e) Dispositions permitted by Section 7.04; and



     (f) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under
this Section 7.05, including, without limitation, Dispositions to a Restricted Subsidiary
which is not wholly-owned by the Borrower and its Restricted Subsidiaries; provided that
(i) at the time of such Disposition, no Default shall exist or would result from such Disposition
and (ii) the aggregate book value of all property Disposed of (or deemed Disposed of) in reliance
on this clause (f) or clause (b)(iii) of Section 7.04 or clause
(a)(ii) of Section 7.06 in any period of four consecutive fiscal quarters (ending with
the quarter in which such Disposition occurs) shall not exceed 15% of Consolidated Total Assets as
of the last day of the most recently ended fiscal quarter prior to such Disposition;
provided, further, that, for purposes of such calculation, if any such transferee
is a Restricted Subsidiary, and the percentage of the aggregate outstanding Equity Interests of
such Restricted Subsidiary owned by the Borrower and its Restricted Subsidiaries is less than the
percentage of the outstanding Equity Interests in the transferor Restricted Subsidiary owned by the
Borrower and its Restricted Subsidiaries, then



78









 







such Disposition shall be deemed to be Disposition of only that percentage of assets so
Disposed of which is equal to the difference between (A) the percentage of outstanding Equity
Interests of the transferor Restricted Subsidiary owned by the Borrower and its Restricted
Subsidiaries immediately before such Disposition and (B) the percentage of the outstanding Equity
Interests of the transferee Restricted Subsidiary owned by the Borrower and its Restricted
Subsidiaries immediately after giving effect to such Disposition.



     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or would result
therefrom:



     (a) Each Restricted Subsidiary (for these purposes, the “Subject Restricted
Subsidiary”) may make Restricted Payments (i) to the Borrower, any other Restricted Subsidiary
that owns an Equity Interest in the Subject Restricted Subsidiary and any Joint-Venture Partner in
the Subject Restricted Subsidiary, ratably according to their respective holdings of the type of
Equity Interest in respect of which the subject Restricted Payment is being made (or on a basis
which is more favorable to the Borrower and any such other Restricted Subsidiary) and (ii) on a
basis which is more favorable to such Joint-Venture Partner; provided that, in the case of
this clause (ii) (except to the extent of any transaction involving the purchase, redemption,
retirement, acquisition or cancellation of the Equity Interests in the Subject Restricted
Subsidiary owned by such Joint-Venture Partner where, after giving effect to such transaction, the
aggregate Equity Interests of the Subject Restricted Subsidiary owned by the Borrower and its
Restricted Subsidiaries is correspondingly increased), the amount of such Restricted Payments shall
be deemed to be a Disposition and the aggregate amount of all such Dispositions, together with all
other Dispositions pursuant to Section 7.04(b)(iii) and Section 7.05(f) in any
period of four consecutive quarters (ending with the quarter in which such adverse Restricted
Payment is made), shall not exceed 15% of Consolidated Total Assets as of the last day of the most
recently ended fiscal quarter prior to such Restricted Payment;



     (b) the Borrower and each Restricted Subsidiary may declare and make ratable dividend payments
or other ratable distributions payable solely in the common stock or other common Equity Interests
of such Person; and



     (c) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or
otherwise acquire for cash Equity Interests issued by it in an aggregate amount during the period
commencing on the Closing Date not to exceed the sum of: (i) $225,000,000, plus (ii) for
each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2004), the
greater of (A) $25,000,000 and (B) 50% of Net Income of the Borrower and its Restricted
Subsidiaries for such fiscal year, plus (iii) an amount equal to the aggregate cash
proceeds received by the Borrower from any capital contribution from its shareholders after the
Closing Date and the aggregate cash proceeds received by the Borrower from the issuance and sale of
any Equity Interests of the Borrower after the Closing Date, in each case, net of all out-of-pocket
costs and expenses incurred by the Borrower in connection therewith.



     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines conducted by the Borrower and/or any of its Restricted



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Subsidiaries on the date hereof or other cable and other standard and nonstandard television,
television programming, multimedia or education business, or any business substantially related or
incidental thereto (collectively, the “Target Businesses”).



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Borrower, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or such Restricted Subsidiary as would
be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate; provided that the foregoing
restriction shall not apply to (a) transactions between or among the Borrower and/or any Restricted
Subsidiary, on the one hand, and any of its Restricted Subsidiaries which is a joint venture with
any Joint-Venture Partner which Joint-Venture Partner is also a Significant Shareholder or an
Affiliate of a Significant Shareholder, on the other hand, which transactions are made pursuant to
a joint venture agreement with such Joint-Venture Partner, if such agreement is on fair and
reasonable terms substantially as favorable to the Borrower and its Restricted Subsidiaries as
would be obtainable by the Borrower or such Restricted Subsidiary in a comparable arm’s length
transaction with a Person other than Affiliate, (b) transactions between or among the Borrower and
any of its other Restricted Subsidiaries or between and among any such other Restricted
Subsidiaries, and (c) Guarantees by the Borrower or a Restricted Subsidiary of Indebtedness of any
Affiliate of the Borrower; provided, however, that any such Guarantee is otherwise
permitted hereunder.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any other Restricted Subsidiary or to otherwise transfer property to
the Borrower or any other Restricted Subsidiary, (ii) of any Restricted Subsidiary to Guarantee the
Indebtedness of the Borrower or any other Restricted Subsidiary, or (iii) of the Borrower or any
Restricted Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under Section
7.03(e), (f), or (g) solely to the extent any such negative pledge relates to
the property financed by or the subject of any Lien securing such Indebtedness; and
provided, further, that in the case of any Restricted Subsidiary which is a joint
venture between the Borrower and/or any other Restricted Subsidiary, on the one hand, and any
Joint-Venture Partner, on the other hand, where all the owners of the Equity Interests of such
joint venture Restricted Subsidiary have entered, or may in the future enter, into a Contractual
Obligation with such Restricted Subsidiary limiting the ability of such Restricted Subsidiary (A)
to make Restricted Payments to, (B) Guaranty the Indebtedness of, or (C) to grant any Lien on the
property of such Restricted Subsidiary for the benefit of, in each case, any owner of the Equity
Interests in such joint venture Restricted Subsidiary, this clause (a) shall not prohibit any such
Contractual Obligation; provided, further, that neither the Borrower nor any
Restricted Subsidiary shall waive their rights to the benefits of any such Contractual Obligation
as against any Joint-Venture Partner to permit such joint venture Restricted Subsidiary to Guaranty
the Indebtedness of such Joint Venture Partner or to grant a Lien on the property of such
Restricted Subsidiary for the benefit of such Joint Venture Partner; or (b) except as provided in
the Note Purchase Agreement as of the date hereof, requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of such Person.



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     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.11 Unrestricted Subsidiaries. (a) Designate a newly organized or acquired Subsidiary or an
existing Restricted Subsidiary as an Unrestricted Subsidiary unless:




     (i) such Subsidiary (and any Subsidiary of such Subsidiary) does not own any Equity
Interests in any Restricted Subsidiary; and




     (ii) no Default shall have occurred and be continuing or would result from such
Designation, including, without limitation, pursuant to Section 7.02(e) and clause
(c) of this Section 7.11.



     (b) Designate an Unrestricted Subsidiary as a Restricted Subsidiary unless:




     (i) at least 50% of the Equity Interests of such Unrestricted Subsidiary having
ordinary voting power for the election of directors or other governing body are owned
directly by the Borrower or a Restricted Subsidiary; and




     (ii) no Default shall have occurred and be continuing or would result.



     (c) Permit Consolidated Operating Cash Flow for any period of four consecutive fiscal quarters
of the Borrower ending after the Closing Date together with the Operating Cash Flow of each
Unrestricted Subsidiary the primary business of which is of a Target Business to be less than the
combined Operating Cash Flow of all Unrestricted Subsidiaries the primary business of which is not
a Target Business for such period.



     7.12 Consolidated Leverage Ratio; Consolidated Interest Coverage Ratio.



     (a) Permit the Consolidated Interest Coverage Ratio for each period of four consecutive fiscal
quarters of the Borrower ending after the Closing Date to be less than 3.00:1.



     (b) Permit the Consolidated Leverage Ratio at any time during each period of four consecutive
fiscal quarters of the Borrower set forth below to be greater than the ratio set forth below
opposite such period:



	 	 	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Four Fiscal Quarters Ending
	 	Leverage Ratio
	Closing Date through December 31, 2004
	 	 	4.75:1	 
	March 31, 2005 and each fiscal quarter thereafter
	 	 	4.50:1	 






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ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three days after the same becomes due, any interest on any Loan or on
any L/C Obligation, or any fee due hereunder, or (iii) within five days after the same becomes due,
any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02(a), (b), (f),
(g) or (h), 6.03, 6.05, 6.10 or 6.11 or Article
VII; or



     (c) Other Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days; or



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



     (e) Cross-Default. (i) The Borrower or any Restricted Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any (1) Indebtedness (other than Indebtedness hereunder, Indebtedness
under Swap Contracts and Guarantees relating to any Indebtedness other than Indebtedness described
in clauses (a) to (f) of the definition thereof) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the $25,000,000, or (2) Guarantee of any
Indebtedness (other than Indebtedness described in clauses (a) to (f) of the definition thereof)
where as a result of such failure to make such payment, aggregate payments in excess of the
Threshold Amount may be demanded under such Guarantee or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Borrower or any Restricted Subsidiary is the Defaulting Party
(as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap



82









 







Contract as to which the Borrower or any Restricted Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower or such Restricted
Subsidiary as a result thereof is greater than the Threshold Amount and, in the case of any Early
Termination Date resulting from such a Termination Event, such Early Termination Date is not
rescinded or such Swap Termination Value is not paid within 5 Business Days following such Early
Termination Date; or



     (f) Insolvency Proceedings, Etc. The Borrower or any of its Restricted Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes
an assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Restricted Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or



     (h) Judgments. There is entered against the Borrower or any Restricted Subsidiary (i)
a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to which the insurer does
not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order,
or (B) there is a period of 10 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



     (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Borrower
contests in any manner the validity or enforceability of any provision of any Loan Document; or the
Borrower denies that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or



83









 





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



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



     (a) declare the Commitments of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such Commitments and obligation shall be
terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



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



     (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents; provided, however, that upon the occurrence
of an actual or deemed entry of an order for relief with respect to the Borrower under the
Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.



     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received by the Administrative Agent on account of the
Obligations shall be applied by the Administrative Agent in the following order:



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



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer
(including fees and time charges for attorneys who may be employees of any Lender or the L/C
Issuer) and amounts payable under Article III), ratably among them in proportion to the
amounts described in this clause Second payable to them;



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



     Fourth, ratably (i) to payment of that portion of the Obligations constituting unpaid
principal of the Loans and the L/C Borrowings, ratably among the Lenders in proportion to the
respective amounts described in this subclause (i) to this clause Fourth held by them and
(ii) to payment of that portion of the Obligations constituting amounts owing under or in respect
of Swap Contracts to which a Swap Bank is a party ratably among the Swap Banks in proportion to the
respective amounts described in this subclause (ii) to this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit; and



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


Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn (and may not be reinstated) or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.




ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate of the Borrower as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.



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     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;
and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In



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determining compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the
L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender
or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of
Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the



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benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/C Issuer
shall be discharged from all its respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such succession or make other arrangement
satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



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



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Borrower, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise, as follows:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j),
2.09 and 10.04) allowed in such judicial proceeding; and



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     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any Restricted Subsidiary
therefrom, shall in any event be effective unless the same shall be in writing and signed by the
Required Lenders and the Borrower and acknowledged by the Administrative Agent, and then each such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (v) of the second proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the consent of
the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive
any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii)
to amend any financial covenant hereunder (or any defined term used therein) even if the effect of
such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce
any fee payable hereunder;



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     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) amend Section 1.05 or the definition of “Alternative Currency” or the definition
of “Required Revolving Lenders” without the written consent of each Revolving Lender;



     (g) change any provision of this Section 10.01 or the definition of “Required Lenders”
or (except as provided in clause (f)) any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each Lender; or



     (h) effect any waiver, amendment or modification that by its terms adversely affects the
rights, in respect of payments of the Lenders holding Term Loans differently from those of the
Lenders holding Revolving Loans, without the prior written consent of the Required Revolving
Lenders holding in the aggregate at least a majority of the outstanding principal amount of the
Term Loans;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iv) Section 10.06(h) may not be amended, waived or otherwise modified without
the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender. Upon delivery by
the Borrower of each supplement to Schedule 2.01 pursuant to Sections 2.14 and
2.15, such supplements shall be incorporated into and become a part of and supplement
Schedule 2.01, and the Administrative Agent may attach such schedule supplements to such
Schedule, and each reference to such Schedule shall mean and be a reference to such Schedule, as
supplemented pursuant thereto.




     10.02 Notices Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows



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     (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.



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



     (c) Change of Address, Etc. The Borrower, the Administrative Agent, the L/C Issuer
and the Swing Line Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.



     (d) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein, were



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incomplete or were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by Law.



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, without duplication of internal
and external counsel), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated),
(ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or
the L/C Issuer (including the fees, charges and disbursements of any external counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for
attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section; provided,
however, that prior to the occurrence and continuance of an Event of Default, the fees and
time charges of internal attorneys shall not be duplicative of any such external counsel, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements
for attorneys who may be employees of any Indemnitee which are not duplicative of fees and charges
of external counsel, incurred by any Indemnitee or asserted



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against any Indemnitee by any third party or by the Borrower arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party
thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the
negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a
claim brought by the Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, and without relieving the Borrower of its obligation to do so, each Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such
Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought and on the basis that the
Term Lenders as a class and the Revolving Lenders as a class shall share such payments equally) of
such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against
any Related Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials



93









 







distributed by it through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.



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



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



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate
from time to time in effect, in the applicable currency of such recovery or payment. The
obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section 10.06, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section 10.06, (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section 10.06 and, to the extent expressly contemplated hereby, the
Related Parties of each of the



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Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.



     (b) Assignments by Lender. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that




     (i) (A) in the case of Revolving Lenders, except in the case of an assignment of the
entire remaining amount of the assigning Revolving Lender’s Revolving Commitment and the
Revolving Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of
the Revolving Commitment (which for this purpose includes Revolving Loans outstanding
thereunder) or, if the Revolving Commitment is not then in effect, the principal outstanding
balance of the Revolving Loan of the assigning Revolving Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed) and (B) in the case of a Term Lender, except in the case of an
assignment of the entire remaining amount of the assigning Term Lender’s Term Commitments
and the Term Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of
the Term Commitment or Term Loans subject to each such assignment, determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Revolving Loans and Revolving Commitments assigned, or the Term Loans assigned, as the case
may be, except that this clause (ii) shall not apply to rights of a Revolving Lender in
respect of Swing Line Loans;




     (iii) any assignment of a Revolving Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender unless the Person that is the proposed
assignee is itself a Revolving Lender or an Affiliate thereof, whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee under clause (d) of the definition
thereof (each such approval not to be unreasonably withheld or delayed); and



95









 






     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500
(which shall not be an obligation of the Borrower), and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section 10.06, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section 10.06.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and the L/C Issuer at any reasonable time and
from time to time upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or other substantive change of the Loan Documents is pending, any Lender
wishing to consult with other Lenders in connection therewith may request and receive from the
Administrative Agent a copy of the Register.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement.



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Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section
10.06, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section 10.06.
To the extent permitted by Law, each Participant also shall be entitled to the benefits of
Section 10.08 as though it were a Lender; provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.




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



     (f) Pledge to Federal Reserve Bank. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement (including under its
Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof
or, if it fails to do so, to make such payment to the Administrative Agent as is required under
Section 2.12(c)(ii). Each party hereto hereby agrees that (i) neither the grant to



97









 







any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this Agreement (including its
obligations under Sections 3.01 and 3.04), (ii) no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for which a Lender would be liable,
and (iii) the Granting Lender shall for all purposes, including the approval of any amendment,
waiver or other modification of any provision of any Loan Document, remain the lender of record
hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or
join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or any portion of its right to receive payment with respect to
any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.



     (i) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its Revolving Commitment
and Revolving Loans pursuant to subsection (b) above, Bank of America may, upon 30 days’ notice to
the Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C
Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer
hereunder; provided, however, that no failure by the Borrower to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer. If Bank of America
resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of its resignation as
L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)).



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to the extent required
by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same



98









 







as those of this Section 10.07, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other than as a result of a breach of this
Section 10.07 or (y) becomes available to the Administrative Agent, any Lender, the L/C
Issuer on any of their respective Affiliates on a nonconfidential basis from a source other than
the Borrower or any of its Subsidiaries or Affiliates. For purposes of this Section,
“Information” means all information received from the Borrower or any Subsidiary relating
to the Borrower or any Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that,
in the case of information received from the Borrower or any Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or
office of such Lender or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in



99









 







equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in, and consents required by,
Section 10.06), all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:



     (a) the Borrower shall have paid (or caused a Designated Subsidiary to pay) to the
Administrative Agent the assignment fee specified in Section 10.06(b);



100









 





     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



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



     10.14 Governing Law; Jurisdiction, Etc.



     (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO



101









 







THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



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



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



     10.18 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of the Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be



102









 







discharged only to the extent that on the Business Day following receipt by the Administrative
Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due
to the Administrative Agent from the Borrower in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or
the Person to whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to the Borrower (or to
any other Person who may be entitled thereto under applicable law).



     10.19 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Signature Pages Follow.]




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



	 	 	 	 	 
	 	DISCOVERY COMMUNICATIONS, INC.

 	 
	 	By:  	/s/   J. Michael Suffredini
 	 
	 	 	Name:  	J. Michael Suffredini 	 
	 	 	Title:  	Senior Vice President and  Treasurer 	 
	 




S - 1 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as
 Administrative Agent

 	 
	 	By:  	/s/  Thomas J. Kane
 	 
	 	 	Name:  	Thomas J. Kane  	 
	 	 	Title:  	Principal 	 
	 




S - 2 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Lender and as

 L/C Issuer

 	 
	 	By:  	/s/     Thomas J. Kane
 	 
	 	 	Name:  	Thomas J. Kane  	 
	 	 	Title:  	Principal 	 
	 




S - 3 









 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL 
ASSOCIATION, as a Lender

 	 
	 	By:  	/s/     Franklin M. Wessinger
 	 
	 	 	Name:  	Franklin M. Wessinger 	 
	 	 	Title:  	Managing Ditector 	 
	 




S - 4 









 





	 	 	 	 	 
	 	TORONTO DOMINION (TEXAS), INC., as a

Lender

 	 
	 	By:  	/s/
Neva Nesbitt
 	 
	 	 	Name:  	Neva Nesbitt  	 
	 	 	Title:  	Vice President 	 
	 




S - 5 









 





	 	 	 	 	 
	 	CITIBANK, N. A., as a Lender

 	 
	 	By:  	/s/ Robert F. Parr
 	 
	 	 	Name:  	Robert F. Parr  	 
	 	 	Title:  	Managing Director 	 
	 




S - 6 









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as a Lender

 	 
	 	By:  	/s/     Barbara E. Nash
 	 
	 	 	Name:  	Barbara E. Nash 	 
	 	 	Title:  	Authorized Signatory 	 
	 




S - 7 









 





	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as a Lender

 	 
	 	By:  	/s/ Brenda S. Insull
 	 
	 	 	Name:  	Brenda S. Insull  	 
	 	 	Title:  	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	SCOTIABANC INC., as a Lender

 	 
	 	By:  	/s/ William E. Zarrett
 	 
	 	 	Name:  	William E. Zarrett  	 
	 	 	Title:  	Managing Director 	 
	 




S - 8 









 





	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC, as a

Lender

 	 
	 	By:  	/s/ David Lucas
 	 
	 	 	Name:  	David Lucas 	 
	 	 	Title:  	Senior Vice President 	 
	 




S - 9 









 





	 	 	 	 	 
	 	CALYON NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Douglas E. Roper
 	 
	 	 	Name:  	Douglas E. Roper  	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ John McCloskey
 	 
	 	 	Name:  	John McCloskey  	 
	 	 	Title:  	Director 	 
	 




S - 10











 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, as a Lender

 	 
	 	By:  	/s/ Peter B. Thauer
 	 
	 	 	Name:  	Peter B. Thauer  	 
	 	 	Title:  	Vice President 	 



S - 11 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK, as Swing Line Lender and as

a Lender

 	 
	 	By:  	/s/ Thomas C. Palmer
 	 
	 	 	Name:  	Thomas C. Palmer  	 
	 	 	Title:  	Managing Director 	 



S - 12 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BARCLAYS BANK PLC, as a Lender

 	 
	 	By:  	/s/
L. Peter Yetman 	 
	 	 	Name:  	L. Peter Yetman	 
	 	 	Title:  	Director	 



S - 13 









 






	 	 	 	 	 



	 	 	 	 	 	 	 
	 	 	BNP PARIBAS, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Stephanie Rogers	 	 
	 

	 	Name:
	 	 

Stephanie Rogers
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ola Anderssen	 	 
	 

	 	Name:
	 	 

Ola Anderssen
	 	 
	 

	 	Title:
	 	Director	 	 






S - 14 









 






	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a
Lender

 	 
	 	By:  	/s/ Michelle Reef
 	 
	 	 	Name:  	Michelle Reef 	 
	 	 	Title:  	Assistant Vice President 	 



S - 15 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., as a
Lender

 	 
	 	By:  	/s/ Mark Gronich
 	 
	 	 	Name:  	Mark Gronich  	 
	 	 	Title:  	Senior Vice President 	 



S - 16 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NATIONAL AUSTRALIA BANK LIMITED 

[ACN 004-044-937], as a Lender

 	 
	 	By:  	/s/
Eduardo Salazar
 	 
	 	 	Name:  	Eduardo Salazar	 
	 	 	Title:  	Senior Vice President 	 



S - 17 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK COMPANY, INC.,

as a Lender

 	 
	 	By:  	/s/ John C. Lambert
 	 
	 	 	Name:  	John C. Lambert 	 
	 	 	Title:  	Authorized Signer 	 



S - 18 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CREDIT SUISSE FIRST BOSTON,

acting through its Cayman Islands Branch,

as a Lender

 	 
	 	By:  	/s/ Bill O’Daly
 	 
	 	 	Name: 	Bill O’Daly 	 
	 	 	Title:  	Director 	 
	 	 	 
	 	By:  	/s/ Cassandra Droogan
 	 
	 	 	Name: 	Cassandra Droogan  	 
	 	 	Title:  	Associate 	 



S - 19 









 






	 	 	 	 	 



	 	 	 	 	 
	 	HSBC BANK USA, as a Lender

 	 
	 	By:  	/s/ Sandeep Pahwa
 	 
	 	 	Name:  	Sandeep Pahwa  	 
	 	 	Title:  	Managing Director

Sector Head Media North America 	 



S - 20 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING 

CORPORATION, as a Lender

 	 
	 	By:  	/s/ Leo E. Pagarigan
 	 
	 	 	Name:  	Leo E. Pagarigan 	 
	 	 	Title:  	Senior Vice President 	 
	 




S - 21 












 





	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A., as a

Lender

 	 
	 	By:  	/s/  Christine P. Ball
 	 
	 	 	Name:  	Christine P. Ball 	 
	 	 	Title:  	Senior Vice President & Manager 	 
	 




S - 22









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a

Lender

 	 
	 	By:  	/s/ Rob L. Stuart
 	 
	 	 	Name:  	Rob L. Stuart 	 
	 	 	Title:  	Assistant Vice President 	 



S - 23









 







	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL

ASSOCIATION, as a Lender

 	 
	 	By:  	/s/    Susan L. Coulter
 	 
	 	 	Name:  	Susan L. Coulter 	 
	 	 	Title:  	Vice President 	 



S - 24









 






	 	 	 	 	 



	 	 	 	 	 
	 	ALLIED IRISH BANKS PLC, as a Lender

 	 
	 
	 	By:  	/s/  Germaine Reusch
 	 
	 	 	Name: 	Germaine Reusch	 
	 	 	Title: 	Senior Vice President 	 
	 
	 	By:  	/s/  Denise Magyer
 	 
	 	 	Name:  	Denise Magyer 	 
	 	 	Title:  	Vice President 	 
	 




S - 25









 





	 	 	 	 	 
	 	KBC BANK N.V., as a Lender

 	 
	 	By:  	/s/ Robert Snauffer
 	 
	 	 	Name:  	Robert Snauffer                                          	 
	 	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By:  	              /s/ Robert M. Surdam, Jr.
 	 
	 	 	Name:  	Robert M. Surdam, Jr. 	 
	 	 	Title:  	Vice President 	 
	 




S - 26









 





	 	 	 	 	 
	 	BAYERISCHE HYPO-UND VEREINSBANK

AG, NEW YORK BRANCH, as a Lender

 	 
	 	By: 	
/s/     Yoram Dankner
 	 
	 	 	Name: 	Yoram Dankner	 
	 	 	Title: 	Managing Director 	 
	 
	 	By: 	
/s/     Hetal Selarka
 	 
	 	 	Name:  	Hetal Selarka 	 
	 	 	Title:  	Associate Director 	 



S - 27









 






	 	 	 	 	 



List of Omitted Exhibits and Schedules 





     The following exhibits and schedules to the Credit Agreement, dated as of June 15, 2004, among
Discovery Communications, Inc., as Borrower, Bank of America, N.A., as Administrative Agent and L/C
Issuer, SunTrust Bank, as Swing Line Lender, Banc of America Securities LLC, Wachovia Capital
Markets, LLC, and TD Securities (USA) Inc., as Joint Lead Arrangers and Joint Book Managers,
Wachovia Bank, National Association, as Syndication Agent, Toronto Dominion (Texas), Inc.,
Citibank, N.A., RBC Capital Markets, The Bank of Nova Scotia, and The Royal Bank of Scotland plc,
as Documentation Agents, and other lenders that are parties thereto have not been provided herein:



	 	 	 	 	 
	 
	 	Schedule 1.01:	 	Mandatory Cost Formulae
	 
	 	 	 	 
	 
	 	Schedule 2.01:	 	Commitments and Applicable Percentages
	 
	 	 	 	 
	 
	 	Schedule 5.05:	 	Supplement to Interim Financial Statements
	 
	 	 	 	 
	 
	 	Schedule 5.13:	 	Subsidiaries, Other Equity Investments and Equity Interests in Borrower
	 
	 	 	 	 
	 
	 	Schedule 7.01:	 	Existing Liens
	 
	 	 	 	 
	 
	 	Schedule 7.03:	 	Existing Indebtedness
	 
	 	 	 	 
	 
	 	Schedule 10.02:	 	Administrative Agent’s Office, Certain Addresses for Notices
	 
	 	 	 	 
	 
	 	Exhibit A:	 	Form of Loan Notice
	 
	 	 	 	 
	 
	 	Exhibit B:	 	Form of Swing Line Loan Notice
	 
	 	 	 	 
	 
	 	Exhibit C-1:	 	Form of Term Note
	 
	 	 	 	 
	 
	 	Exhibit C-2:	 	Form of Revolving Note
	 
	 	 	 	 
	 
	 	Exhibit D:	 	Form of Compliance Certificate
	 
	 	 	 	 
	 
	 	Exhibit E:	 	Form of Assignment and Assumption
	 
	 	 	 	 
	 
	 	Exhibit F:	 	Form of Opinion Matters






     The undersigned registrant hereby undertakes to furnish supplementally a copy of any omitted
exhibit or schedule to the Securities and Exchange Commission upon request.