exv4w17






Exhibit 4.17




EXECUTION COPY




      



 

 






Published
CUSIP Number: 25467YAA6




CREDIT, PLEDGE AND SECURITY AGREEMENT




Dated as of May 14, 2007,




among




DISCOVERY COMMUNICATIONS HOLDING, LLC,

as Borrower,




the Lenders party hereto,




BANK OF AMERICA, N.A.,

as Administrative Agent,




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,




THE ROYAL BANK OF SCOTLAND, PLC,

TORONTO DOMINION (TEXAS), INC.

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Documentation Agents




and




BANC OF AMERICA SECURITIES LLC

and

J.P. MORGAN SECURITIES, INC,

as Joint Lead Arrangers and Joint Bookrunners




 

 







 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I
	 	 	 	 
	DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Collateral Definitions	 	 	28	 
	1.03
	 	Other Interpretive Provisions	 	 	30	 
	1.04
	 	Accounting Terms	 	 	31	 
	1.05
	 	Rounding	 	 	33	 
	1.06
	 	Times of Day	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	 	 	 
	COMMITMENTS AND BORROWINGS
	 	 	 	 
	 
	 	 	 	 	 	 
	2.01
	 	Loans	 	 	34	 
	2.02
	 	Borrowings, Conversions and Continuations of Loans	 	 	34	 
	2.03
	 	Additional Term Facilities	 	 	36	 
	2.04
	 	Prepayments	 	 	38	 
	2.05
	 	Termination of Commitments	 	 	41	 
	2.06
	 	Repayment of Loans	 	 	41	 
	2.07
	 	Interest	 	 	42	 
	2.08
	 	Fees	 	 	43	 
	2.09
	 	Computation of Interest; Evidence of Debt	 	 	43	 
	2.10
	 	Payments Generally; Administrative Agent’s Clawback	 	 	44	 
	2.11
	 	Sharing of Payments by Lenders	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 
	TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	 	 
	 
	 	 	 	 	 	 
	3.01
	 	Taxes	 	 	47	 
	3.02
	 	Illegality	 	 	50	 
	3.03
	 	Inability to Determine Rates	 	 	50	 
	3.04
	 	Increased Costs; Reserves on Eurodollar Rate Loans	 	 	50	 
	3.05
	 	Compensation for Losses	 	 	52	 
	3.06
	 	Mitigation Obligations; Replacement of Lenders	 	 	52	 
	3.07
	 	Survival	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	 	 	 
	CONDITIONS PRECEDENT TO BORROWINGS
	 	 	 	 
	 
	 	 	 	 	 	 





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TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page
	4.01
	 	Conditions of Initial Borrowing	 	 	53	 
	4.02
	 	Conditions to all Borrowings	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 	 	 
	5.01
	 	Existence, Qualification and Power	 	 	58	 
	5.02
	 	Authorization; No Contravention	 	 	58	 
	5.03
	 	Governmental Authorization; Other Consents	 	 	59	 
	5.04
	 	Binding Effect	 	 	59	 
	5.05
	 	Financial Statements; No Material Adverse Effect	 	 	60	 
	5.06
	 	Litigation	 	 	61	 
	5.07
	 	No Default	 	 	61	 
	5.08
	 	Liens; Ownership of Certain Property	 	 	61	 
	5.09
	 	Environmental Compliance	 	 	63	 
	5.10
	 	Insurance	 	 	63	 
	5.11
	 	Taxes	 	 	63	 
	5.12
	 	ERISA Compliance	 	 	64	 
	5.13
	 	Subsidiaries; Ownership of Equity Interests	 	 	65	 
	5.14
	 	Margin Regulations; Investment Company Act	 	 	65	 
	5.15
	 	Disclosure	 	 	66	 
	5.16
	 	Compliance with Laws	 	 	66	 
	5.17
	 	Intellectual Property; Licenses, Etc	 	 	66	 
	5.18
	 	Solvency	 	 	67	 
	5.19
	 	Labor Matters	 	 	67	 
	5.20
	 	Collateral Matters	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	 	 
	6.01
	 	Financial Statements	 	 	67	 
	6.02
	 	Certificates; Other Information	 	 	69	 
	6.03
	 	Notices	 	 	71	 
	6.04
	 	Payment of Obligations	 	 	72	 
	6.05
	 	Preservation of Existence, Etc	 	 	72	 






-ii- 









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page
	6.06
	 	Maintenance of Properties	 	 	73	 
	6.07
	 	Maintenance of Insurance	 	 	73	 
	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
	 	Covenant to Give Security	 	 	74	 
	6.13
	 	Compliance with Environmental Laws	 	 	76	 
	6.14
	 	Interest Rate Hedging	 	 	76	 
	6.15
	 	Account Control Agreement	 	 	76	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	 	 	 
	NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 	 	 
	7.01
	 	Liens	 	 	77	 
	7.02
	 	Investments	 	 	78	 
	7.03
	 	Indebtedness	 	 	79	 
	7.04
	 	Fundamental Changes	 	 	80	 
	7.05
	 	Dispositions	 	 	81	 
	7.06
	 	Restricted Payments	 	 	82	 
	7.07
	 	Change in Nature of Business	 	 	83	 
	7.08
	 	Transactions with Affiliates	 	 	83	 
	7.09
	 	Burdensome Agreements	 	 	84	 
	7.10
	 	Use of Proceeds	 	 	84	 
	7.11
	 	Unrestricted Subsidiaries	 	 	85	 
	7.12
	 	Consolidated Borrower Leverage Ratio	 	 	85	 
	7.13
	 	Amendments of Organization Documents	 	 	85	 
	7.14
	 	Accounting Changes	 	 	86	 
	7.15
	 	Prepayments, Etc. of Indebtedness	 	 	86	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	EVENTS OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 	 	 
	8.01
	 	Events of Default	 	 	86	 
	8.02
	 	Remedies Upon Event of Default	 	 	89	 






-iii- 









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page
	8.03
	 	Application of Funds	 	 	89	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	 	 	 
	ADMINISTRATIVE AGENT
	 	 	 	 
	 
	 	 	 	 	 	 
	9.01
	 	Appointment and Authority	 	 	90	 
	9.02
	 	Rights as a Lender	 	 	91	 
	9.03
	 	Exculpatory Provisions	 	 	91	 
	9.04
	 	Reliance by Administrative Agent	 	 	92	 
	9.05
	 	Delegation of Duties	 	 	92	 
	9.06
	 	Resignation of Administrative Agent	 	 	93	 
	9.07
	 	Non-Reliance on Administrative Agent, any other Agent and Other Lenders	 	 	93	 
	9.08
	 	No Other Duties, Etc	 	 	93	 
	9.09
	 	Administrative Agent May File Proofs of Claim	 	 	94	 
	9.10
	 	Collateral Matters	 	 	94	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	 	 	 
	SECURITY INTERESTS
	 	 	 	 
	 
	 	 	 	 	 	 
	10.01
	 	Security Interest	 	 	95	 
	10.02
	 	Pledged Collateral	 	 	97	 
	10.03
	 	Voting Rights; Dividends and Interest, etc	 	 	98	 
	10.04
	 	Registration in Nominee Name; Denominations	 	 	99	 
	10.05
	 	Filing Authorization	 	 	100	 
	10.06
	 	Continuing Security Interest; Transfer of Loans	 	 	100	 
	10.07
	 	Borrower Remains Liable	 	 	100	 
	10.08
	 	Security Interest Absolute	 	 	101	 
	10.09
	 	Release; Termination	 	 	102	 
	10.10
	 	Remedies upon Default	 	 	103	 
	10.11
	 	Application of Proceeds	 	 	105	 
	10.12
	 	Grant of License to Use Intellectual Property	 	 	105	 
	10.13
	 	Securities Act, etc	 	 	105	 
	10.14
	 	Administrative Agent Appointed Attorney-in-Fact	 	 	106	 
	 
	 	 	 	 	 	 
	ARTICLE XI
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 






-iv- 









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page
	11.01
	 	Amendments, Etc	 	 	107	 
	11.02
	 	Notices; Effectiveness; Electronic Communications	 	 	109	 
	11.03
	 	No Waiver; Cumulative Remedies	 	 	111	 
	11.04
	 	Expenses; Indemnity; Damage Waiver	 	 	111	 
	11.05
	 	Payments Set Aside	 	 	113	 
	11.06
	 	Successors and Assigns	 	 	114	 
	11.07
	 	Treatment of Certain Information; Confidentiality	 	 	117	 
	11.08
	 	Right of Setoff	 	 	118	 
	11.09
	 	Interest Rate Limitation	 	 	118	 
	11.10
	 	Counterparts; Effectiveness	 	 	119	 
	11.11
	 	Survival of Representations and Warranties	 	 	119	 
	11.12
	 	Severability	 	 	119	 
	11.13
	 	Replacement of Lenders	 	 	119	 
	11.14
	 	Governing Law; Jurisdiction; Etc	 	 	120	 
	11.15
	 	Waiver of Jury Trial	 	 	121	 
	11.16
	 	No Advisory or Fiduciary Responsibility	 	 	121	 
	11.17
	 	USA PATRIOT Act Notice	 	 	122	 
	11.18
	 	ENTIRE AGREEMENT	 	 	122	 
	SIGNATURES	 	 	S-1	 






-v- 









 






SCHEDULES




	 	 	 
	2.01

	 	Commitments and Applicable Percentages
	11.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 
	Form of
	 
	 	 
	A

	 	Loan Notice
	B

	 	Note
	C

	 	Compliance Certificate
	D

	 	Assignment and Assumption
	E

	 	Information Certificate (Closing Date)
	F

	 	Information Certificate (Annual)







-vi-









 








CREDIT, PLEDGE AND SECURITY AGREEMENT




          CREDIT, PLEDGE AND SECURITY AGREEMENT dated as of May 14, 2007 (this “Agreement”;
capitalized terms used herein without definition having the meanings provided in Article
I), among DISCOVERY COMMUNICATIONS HOLDING, LLC, a Delaware limited liability company (the
“Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent (in such capacity, the “Administrative Agent”).




RECITALS:




          WHEREAS, the Borrower has requested that the Term B Lenders make the Term B Facility available
to the Borrower to finance the Transaction; and




          WHEREAS, the Lenders have indicated their willingness to lend the Loans on the terms and
subject to the 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:




          “Account” has the meaning provided in Section 1.02.




          “Account Control Agreement” means an account control agreement in form and substance
reasonably satisfactory to the Administrative Agent (which may be in the form of the 2006 version
of the form of Account Control Agreement developed by the American Bar Association’s Business Law
Section).




          “Additional Term Borrowing” means, for each Additional Term Facility, a borrowing
consisting of simultaneous Additional Term Loans under such Facility of the same Type and, in the
case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Additional Term
Lenders under such Facility pursuant to the Credit Agreement Supplement establishing such Facility.




          “Additional Term Commitment” means, for each Additional Term Facility, each Additional
Term Lender’s obligation to make Additional Term Loans to the Borrower pursuant to Section
2.01(b) and the applicable Credit Agreement Supplement for such Facility in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth in such Credit
Agreement Supplement, as such amount may be adjusted from time to time in accordance with this
Agreement.




 









 








          “Additional Term Facility” means, at any time (a) on or prior to the Additional Term
Facility Effective Date under any Credit Agreement Supplement, the aggregate amount of the
Additional Term Commitments under such Credit Agreement Supplement at such time and (b) thereafter,
the aggregate principal amount of the Additional Term Loans outstanding at such time under this
Agreement, as supplemented by such Credit Agreement Supplement.




          “Additional Term Facility Effective Date” has the meaning specified in Section
2.03(d).




          “Additional Term Facility Notice” has the meaning specified in Section
2.03(a).




          “Additional Term Lender” means for any Additional Term Facility at any time (a) on or
prior to the Additional Term Facility Effective Date for such Facility, any Lender (or Eligible
Assignee invited to participate in such Facility pursuant to Section 2.03(c)) that has an
Additional Term Commitment under such Facility and (b) thereafter, any Lender that holds Additional
Terms Loans under such Facility.




          “Additional Term Loan” means an advance made by any Additional Term Lender under an
Additional Term Facility pursuant to Section 2.01(b).




          “Additional Term Note” means a promissory note made by the Borrower in favor of an
Additional Term Lender evidencing Additional Term Loans under an Additional Term Facility made by
such Lender, substantially in the form of Exhibit B and duly completed for such Loans.




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




          “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other address or account 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.




          “Agents” means, collectively, the Administrative Agent, JPMorgan Chase Bank, N.A., in
its capacity as Syndication Agent, The Royal Bank of Scotland plc, Toronto Dominion (Texas), Inc.
and Wachovia Bank, National Association, in their capacities as Documentation Agents, and the Lead
Arrangers.




          “Aggregate Commitments” means the aggregate Commitments of all the Lenders under all
Facilities.




2









 








          “Agreement” means this Credit, Pledge and Security Agreement.




          “Animal Planet Investment” means the Investment by the Company of not more than
$40,000,000 in its Restricted Subsidiary Animal Planet LLC, a Delaware limited liability company,
and the use of such funds by Animal Planet LLC to purchase Equity Interests in Animal Planet LP, a
Delaware limited partnership.




          “Applicable Certificate Date” means (a) in the case of the Initial Information
Certificate, the Closing Date, immediately after giving effect to the consummation of the
Restructuring on such date; and (b) in the case of each Information Certificate delivered pursuant
to Section 6.02(g), the date of such certificate.




          “Applicable Percentage” means (a) in respect of the Term B Facility, with respect to
any Term B Lender at any time, the percentage (carried out to the ninth decimal place) of the
Term B Facility represented by (i) on or prior to the Closing Date, such Term B Lender’s Term B
Commitment at such time and (ii) thereafter, the principal amount of such Term B Lender’s Term B
Loans at such time, and (b) in respect of any Additional Term Facility, with respect to any
Additional Term Lender under such Additional Term Facility at any time, the percentage (carried out
to the ninth decimal place) of such Additional Term Facility represented by (i) on or prior to the
date of funding any such Additional Term Loans, such Additional Term Lender’s Additional Term
Commitment with respect to such Additional Term Facility at such time and (ii) thereafter, the
outstanding principal amount of such Additional Term Loans made by such Additional Term Lender
under such Facility at such time. The initial Applicable Percentage of each Lender in respect of
each Facility is set forth opposite the name of such Lender in Schedule 2.01 or in a
schedule to the applicable Credit Agreement Supplement for an Additional Term Facility, as the case
may be, or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.




          “Applicable Rate” means (a) in respect of the Term B Facility, 1.00% per annum for
Base Rate Loans and 2.00% per annum for Eurodollar Rate Loans and (b) in respect of any Additional
Term Facility, as set forth in the applicable Credit Agreement Supplement establishing such
Additional Term Facility.




          “Appropriate Lender” means, at any time, with respect to any Facility, a Lender that
has a Commitment with respect to such Facility or holds a Loan outstanding under such Facility,
respectively, at such time.




          “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.




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




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required



3









 






by Section 11.06(b), and accepted by the Administrative Agent, in substantially the
form of Exhibit D 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, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease or similar payments under the relevant
lease or other applicable agreement or instrument that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.




          “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Company and its Subsidiaries, including the notes thereto.




          “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.




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




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




          “Borrowing” means a Term B Borrowing or an Additional 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 is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.




          “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.




4









 








          “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Borrower or any of its Restricted Subsidiaries free and clear of all Liens (other than
Liens created under this Agreement and the Collateral Documents and other Liens permitted
hereunder):





     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States 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 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 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, any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United States, 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




     (f) Investments, classified in accordance with GAAP as current assets of the Borrower
or any of its Restricted Subsidiaries, in money market investment programs registered under
the Investment Company Act of 1940, 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.



          “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.




5









 








          “Cash Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement.




          “CFC” means a Person that is a controlled foreign corporation of the Borrower under
Section 957 of the Code.




          “CFC Pledge Agreement” means in respect of any Pledge Equity issued by a CFC organized
under the laws of any jurisdiction, a pledge agreement governed by the laws of such jurisdiction
pledging such Pledged Equity to the Administrative Agent for the benefit of the Secured Parties, in
form and substance reasonably satisfactory to the Administrative Agent, duly executed by the
Borrower.




          “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) 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
(i) 50% of the Voting Interests of the Borrower or (ii) if the Significant Equity Holders
are beneficial owners, directly or indirectly, of less than 50% of such Voting Interests,
such lesser percentage, other than (A) any Significant Equity Holder or (B) any combination
of Significant Equity Shareholders; or




     (b) the Borrower shall cease, directly or indirectly, to own and control legally and
beneficially all of the Equity Interests in the Company; or




     (c) a “change of control” or any comparable term under, and as defined in, any Material
Indebtedness Agreement shall have occurred.



          “Chattel Paper” has the meaning provided in Section 1.02.




          “Closing Date” means May 14, 2007, the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 11.01.




          “Code” means the Internal Revenue Code of 1986.




          “Collateral” means all of the “Collateral” referred to in Section
10.01 and all of the other property that is or is intended under the terms of Article X
or the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the
benefit of the Secured Parties.




6









 








          “Collateral Document Delivery Date” means, with respect to any item of Collateral
acquired or created by the Borrower after the Closing Date, the date following such acquisition or
creation which is the earlier of (a) the date the Borrower is next required to deliver an
Information Certificate pursuant to Section 6.02(g), and (b) any earlier date reasonably
requested by the Administrative Agent which is not earlier than 30 days following the date of such
request.




          “Collateral Documents” means, collectively, each Intellectual Property Security
Agreement, each Account Control Agreement, each CFC Pledge Agreement, each of the other security
agreements, pledge agreements or other similar agreements delivered to the Administrative Agent
pursuant to Section 6.12, and each of the other agreements, instruments or documents that
creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.




          “Commercial Tort Claim” has the meaning provided in Section 1.02.




          “Commitment” means a Term B Commitment or an Additional Term Commitment, as the
context may require.




          “Common Parent” means any Person that is the common parent of a consolidated or
combined group of corporations for United States federal, state or local income tax purposes that
includes the Borrower as a member.




          “Company” means (a) prior to the consummation of the Restructuring, Discovery
Communications, Inc., a Delaware close corporation, and (b) after consummation of the
Restructuring, Discovery Communications, LLC, the Delaware limited liability company into which
such corporation is converted in the Restructuring.




          “Company Contribution” means the contribution by the Borrower to the equity of the
Company on the Closing Date of up to $300,000,000 of the proceeds of the Term B Borrowing.




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




          “Consolidated Borrower Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness of the Borrower and its Restricted Subsidiaries as of
such date to (b) Consolidated Operating Cash Flow of the Borrower and its Restricted Subsidiaries.




          “Consolidated Funded Indebtedness” means, as of any date of determination, for any
Person and certain of its Subsidiaries on a consolidated basis (or, in the case of certain
Unrestricted Subsidiaries, such Subsidiaries on a combined basis), without duplication, the sum of
(a) the outstanding principal amount of all Indebtedness, whether current or long-term, for
borrowed money (including Loans hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) all purchase money



7









 






Indebtedness (without duplication of amounts included under clause (d) below), (c) all
direct obligations 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), (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) all Attributable Indebtedness, (f) without duplication, all Guarantees
with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of
Persons other than such Person or any such 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 or limited liability company or similar limited
liability entity) in which such Person or any such Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to such Person or any such
Subsidiary. Consolidated Funded Indebtedness shall be calculated on a Pro Forma Basis for the
purposes provided in Section 1.04.




          “Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses in connection with
Indebtedness for 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,
and (b) the portion of rent expense with respect to such period under Capitalized Leases that is
treated as interest in accordance with GAAP, in each case of or by any Person and certain of its
Subsidiaries on a consolidated basis (or, in the case of certain Unrestricted Subsidiaries, such
Subsidiaries on a combined basis) for the most recently completed Measurement Period. Consolidated
Interest Charges shall be calculated on a Pro Forma Basis for the purposes provided in Section
1.04.




          “Consolidated Net Income” means, at any date of determination, the net income (or
loss) of any Person and certain of its Subsidiaries on a consolidated basis (or, in the case of
certain Unrestricted Subsidiaries, such Subsidiaries on a combined basis) for the most recently
completed Measurement Period; provided that Consolidated Net Income shall exclude (a)
extraordinary gains and extraordinary losses for such Measurement Period, (b) the net income of any
Subsidiary of such Person during such Measurement Period to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of such income is not permitted by
operation of the terms of its Organization Documents or any agreement, instrument or Law applicable
to such Subsidiary during such Measurement Period (other than any such restrictions in any Material
Indebtedness Agreement), except that such Person’s equity in any net loss of any such Subsidiary
for such Measurement Period shall be included in determining Consolidated Net Income, and (c) any
income (or loss) for such Period of any other Person if such other Person is not a Subsidiary of
the subject Person, except that the subject Person’s equity in the net income of any such other
Person for such Measurement Period shall be included in Consolidated Net Income up to the aggregate
amount of cash actually distributed by such other Person during such Period to the subject Person
or a Restricted Subsidiary as a dividend or other distribution (and in the case of a dividend or
other distribution to a Restricted Subsidiary, such Subsidiary is not precluded from further
distributing such amount to subject Person as



8









 






described in clause (b) of this proviso). Consolidated Net Income shall be calculated on a Pro
Forma Basis for the purposes provided in Section 1.04.




          “Consolidated Operating Cash Flow” means, at any date of determination with respect to
any Person and certain of its Subsidiaries on a consolidated basis (or, in the case of certain
Unrestricted Subsidiaries, such Subsidiaries on a combined basis), an amount equal to the sum of
(a) Consolidated Net Income of such Person and its Subsidiaries for the most recently completed
Measurement Period plus (b) the following to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges of such Person and its Subsidiaries,
(ii) the provision for Federal, state, local and foreign taxes payable, (iii) depreciation and
amortization expense (other than the amortization of payments for the acquisition of film rights
and broadcast programming) and (iv) other non-cash expenses (including, without limitation, (A)
expenses recorded for long term incentive plans, (B) amortization expense for launch and
representation rights, (C) expenses to record minority interests in consolidated results, (D)
equity gain or loss of other unconsolidated ventures, and (E) unrealized gain or loss on
mark-to-market calculations for derivative financial instruments). Consolidated Operating Cash
Flow shall be calculated on a Pro Forma Basis for the purposes provided in Section 1.04.




          “Consolidated Restricted Subsidiary Leverage Ratio” means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness of the Company and the other
Restricted Subsidiaries as of such date to (b) Consolidated Operating Cash Flow of the Company and
the other Restricted Subsidiaries.




          “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.




          “Copyright” has the meaning provided in Section 1.02.




          “Copyright License” has the meaning provided in Section 1.02.




          “Credit Agreement Supplement” shall have meaning provided in Section 2.03(d).




          “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



9









 






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 an interest rate equal to (a) with respect to Base Rate Loans and
any amounts owing in connection therewith, (i) the Base Rate plus (ii) the Applicable Rate
applicable to Base Rate Loans under the applicable Facility plus (iii) 2% per annum, (b)
with respect to Eurodollar Rate Loans and any amounts owing in connection therewith, (i) the
Applicable Rate applicable to Eurodollar Rate Loans under the applicable Facility plus (ii) 2% per
annum and (c) for all other purposes, (i) the Base Rate plus (ii) the highest Applicable
Rate applicable to Base Rate Loans under any Facility plus (iii) 2% per annum.




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




          “Deposit Account” has the meaning provided in Section 1.02.




          “Designated Event of Default” means an Event of Default described in Section
8.01(a), (g) or (h) and following written notice from the Administrative Agent, any
other Event of Default that has occurred and is continuing at the time of such notice.




          “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(f). “Designate” has a meaning correlative thereto.




          “DHC” means Discovery Holding Company, a Delaware corporation.




          “Disposition” or “Dispose” means the sale, transfer, exclusive license, lease
or other disposition (including any sale and leaseback transaction) of any property (other than
cash payments otherwise permitted by this Agreement) by any Person (or the granting of any option
or other right to do any of the foregoing), including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any rights and claims
associated therewith. The Designation of a Subsidiary as an Unrestricted Subsidiary under this
Agreement shall be deemed to be a Disposition of all the outstanding Equity Interests of such
Subsidiary by the Borrower to an Unrestricted Subsidiary.




          “Documents” has the meaning provided in Section 1.02.




10









 








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




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




          “Electronic Chattel Paper” has the meaning provided in Section 1.02.




          “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)).




          “Entitlement Holder” has the meaning provided in Section 1.02.




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




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




          “Equipment”  has the meaning specified in Section 1.02.




          “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.




11









 








          “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
Section 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.




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




          “Eurodollar Rate Loan” means a Term  B Loan or Additional Term Loan that bears
interest at a rate based on the Eurodollar Rate.




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




          “Excluded CFC Equity Interests” has the meaning specified in Section 10.02(a).




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender 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



12









 






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




          “Facility” means the Term B Facility or an Additional Term Facility, as the context
may require.




          “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 (a) the letter agreement, dated April 12, 2007, between the Company
and the Administrative Agent and agreed to by the Borrower or (b) the letter agreement, dated April
12, 2007, among the Company and the Lead Arrangers and agreed to by the Borrower, as the context
may require.




          “Financial Asset” has the meaning provided in Section 1.02.




          “Fixture” has the meaning provided in Section 1.02.




          “Foreign Government Scheme or Arrangement” has the meaning specified in Section
5.12(d).




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




          “Foreign Plan” has the meaning specified in Section 5.12(d).




13









 








          “Foreign Required Minority Interests” means any Equity Interests of a Foreign
Subsidiary that are required by the applicable laws and regulations of such foreign jurisdiction to
be owned by the government of such foreign jurisdiction or individual or corporate citizens of such
foreign jurisdiction in order for such Foreign Subsidiary to transact business in such foreign
jurisdiction.




          “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States or any political subdivision of the United States.




          “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 activities.




          “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.




          “General Intangibles” has the meaning provided in Section 1.02.




          “Goods” has the meaning provided in Section 1.02.




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




          “Guarantee” means, as to any Person, any (a) 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



14









 






protect such obligee against loss in respect thereof (in whole or in part), or (b) 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.




          “Hedge Bank” means any Person that, at the time it enters into a Secured Hedge
Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured
Hedge Agreement.




          “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) all Attributable Indebtedness of such Person;



15









 






     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person or any
warrant, right or option to acquire such Equity Interest, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and




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



          For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation, limited
liability company or similar legal entity) 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.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Indemnitees” has the meaning specified in Section 11.04(b).




          “Information” has the meaning specified in Section 11.07.




          “Information Certificate” means each of the following information certificates
delivered by the Borrower to the Administrative Agent: (a) if delivered on the Closing Date
pursuant to Section 4.01(a)(iii), an information certificate in the form of Exhibit
E; and (b) if delivered pursuant to Section 6.02(g), an information certificate in the
form of Exhibit F.




          “Information Memorandum” means the information memorandum dated April 2007 used by the
Lead Arrangers in connection with the syndication of the Term B Facility.




          “Initial Information Certificate” means the Information Certificate delivered by the
Borrower on the Closing Date pursuant to Section 4.01(a)(iii).




          “Instrument” has the meaning provided in Section 1.02.




          “Intellectual Property” has the meaning provided in Section 1.02.




          “Intellectual Property Security Agreement” means a short form security agreement which
incorporates the terms of Article X and confirms the security interest granted by the
Borrower to the Administrative Agent for the benefit of the Secured Parties in any registered
Intellectual Property granted hereunder in form for filing in the United States Patent and
Trademark Office, the United States Copyright Office or any similar office of any other
jurisdiction, and otherwise in form reasonably satisfactory to the Administrative Agent, duly
executed by the Borrower in favor of the Administrative Agent.




          “Intercompany Promissory Note” means promissory note in form reasonably satisfactory
to the Administrative Agent executed by a Subsidiary in favor of the Borrower.




16









 








          “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; provided, however, that if any Interest Period for a Eurodollar 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, the
last Business Day of each March, June, September and December and the Maturity Date of the Facility
under which such Loan was made.




          “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter (or, if agreed to by all of the
applicable Lenders, a shorter period or a period of nine or twelve months), 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 next 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 of the Facility under
which such Loan was made.



          “Inventory” has the meaning specified in Section 1.02.




          “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or interest in, another 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 or all or a substantial part of the business of, such
Person. 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. The Designation of a Subsidiary as an Unrestricted Subsidiary under this Agreement
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.




          “Investment Property” has the meaning provided in Section 1.02.




          “IRS” means the United States Internal Revenue Service.




17









 








          “Issuer Acknowledgement” means an acknowledgement and agreement executed by the issuer
of any uncertificated Pledged Equity in favor of the Administrative Agent (a) to acknowledge the
security interest of the Administrative Agent in such Pledged Equity, (b) to confirm to the
Administrative Agent that such issuer has not received notice of any other Lien in such Pledged
Equity (and has not agreed to accept instructions from any other Person in respect of such Pledged
Equity other than the Administrative Agent) and (c) to agree that such issuer will comply with
instructions with respect to such Pledged Equity originated by the Administrative Agent without
further consent of the Borrower, such agreement to be in form and substance reasonably satisfactory
to the Administrative Agent.




          “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.




          “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.




          “Lead Arrangers” means Banc of America Securities LLC and J.P. Morgan Securities,
Inc., each in its capacity as a joint lead arranger and joint bookrunner for the Term B Facility.




          “Lender” has the meaning specified in the introductory paragraph hereto and shall
include each Term B Lender and each Additional Term Lender, as the context may require.




          “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 Rights” has the meaning provided in Section 1.02.




          “License” has the meaning provided in Section 1.02.




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




18









 








          “Loan” means an advance by a Lender to the Borrower under Section 2.01 in the
form of a Term B Loan or an Additional Term Loan, as the context may require.




          “Loan Documents” means, collectively, (a) this Agreement (including each Credit
Agreement Supplement), (b) the Notes, (c) the Initial Information Certificate, (d) the Collateral
Documents, (e) the Fee Letter, (f) each Secured Hedge Agreement, (g) each Secured Cash Management
Agreement, and (h) each other agreement so designated by the Required Lenders; provided
that for purposes of the definition of “Material Adverse Effect” and Articles IV through
IX, “Loan Documents” shall not include Secured Hedge Agreements or Secured Cash Management
Agreements.




          “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 Eurodollar Rate Loans, in each case, pursuant to
Section 2.02(a), in each case, which, if in writing, shall be substantially in the form of
Exhibit A, appropriately completed for such purpose.




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




          “Material Indebtedness Agreement” means each agreement of the Borrower or a Restricted
Subsidiary described in Section 4.01 of the Initial Information Certificate and each other
agreement or instrument evidencing Indebtedness for borrowed money in an amount in excess of the
Threshold Amount.




          “Maturity Date” means (a) with respect to the Term B Facility, May 14, 2014 and (b)
with respect to any Additional Term Facility, subject to Section 2.03(f), the date set
forth in the Credit Agreement Supplement establishing such Additional Term Facility;
provided, however, that, in each case, if such date is not a Business Day, the
Maturity Date shall be the next preceding Business Day.




          “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Borrower.




          “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.




19









 








          “Net Cash Proceeds” means, with respect to any Disposition by the Borrower or any
Restricted Subsidiary, the excess, if any, of (a) the sum of cash and Cash Equivalents received in
connection with such transaction (including any cash or Cash Equivalents received by way of
deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) over (b) the sum of (i) the principal amount of any Indebtedness that
is secured by the applicable asset and that is required to be repaid in connection with such
transaction (other than Indebtedness under the Loan Documents), (ii) the reasonable and customary
out-of-pocket expenses incurred by the Borrower or such Restricted Subsidiary in connection with
such transaction, (iii) the amount of any retained liabilities in connection with such transaction
reasonably estimated by the Borrower to be payable within two years of the closing of such
transaction and (iv) income taxes reasonably estimated to be actually payable within two years of
the date of the relevant transaction as a result of any gain recognized in connection therewith;
provided that, if the amount of any retained liabilities pursuant to subclause (iii) or
estimated taxes pursuant to subclause (iv) exceeds the amount of retained liabilities or taxes, as
the case may be, actually required to be paid in cash in respect of such Disposition, the aggregate
amount of such excess shall constitute Net Cash Proceeds.




          “Note” means a Term B Note or an Additional Term Note, as the context may require.




          “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under this Agreement or any other Loan Document, including,
without limitation, with respect to any Loan, 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 the Borrower as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.




          “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.




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          “Outstanding Amount” means, with respect to any Loans, on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of such Loans occurring on such date.




          “Participant” has the meaning specified in Section 11.06(d).




          “Patent” shall have the meaning provided in Section 1.02.




          “Patent License” shall have the meaning provided in Section 1.02.




          “Payment Intangible” shall have the meaning provided in Section 1.02.




          “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.




          “Platform” has the meaning specified in Section 6.02.




          “Pledged Collateral” has the meaning specified in Section 10.02.




          “Pledged Debt” has the meaning specified in Section 10.02(b).




          “Pledged Equity” has the meaning specified in Section 10.02(a).




          “Pledged Securities” means any Pledged Debt, any Pledged Equity and any other
promissory notes (including Intercompany Promissory Notes), stock certificates, instruments or
other documents representing or evidencing any Pledged Collateral.




          “Proceeds” shall have the meaning provided in Section 1.02.




          “Pro Forma Basis” has the meaning specified in Section 1.04.




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




21









 








          “Refinance” means, in respect of any Indebtedness or commitment to extend credit, to
refinance, renew, extend, defease, restructure, replace, refund or repay, or to issue other
Indebtedness, in exchange or replacement for, such Indebtedness, in whole on in part. “Refinanced”
and “Refinancing” shall have correlative meanings.




          “Register” has the meaning specified in Section 11.06(c).




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




          “Related Taxes” means federal, state or local taxes measured by income for which any
Common Parent is liable which, with respect to federal taxes, shall be deemed to equal the amount
of any such taxes that the Borrower and its Subsidiaries would have been required to pay on a
separate company basis (or on a consolidated basis as if the Company had filed a consolidated
return on behalf of any affiliated group (as defined in Section 1504 of the Code) of which it were
the common parent) or with respect to state and local taxes, shall be deemed to equal the amount of
any such taxes that the Borrower and its Subsidiaries would have been required to pay on a separate
company basis (or on a combined basis as if the Borrower had filed a combined return on behalf of
an affiliated group consisting only of the Borrower and its Subsidiaries).




          “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 Borrowing” means a Loan Notice with respect to a Borrowing of Loans or a
conversion to or continuation of Eurodollar Rate Loans.




          “Required Additional Term Lenders” means, for any Additional Term Facility as of any
date of determination, Additional Term Lenders holding more than 50% of the Commitments or
Outstanding Amount under such Facility on such date; provided that the portion of the
Additional Term Facility held by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Additional Term Lenders.




          “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the Commitments and Total Outstandings; provided that the portion of the Commitments
and Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes
of making a determination of Required Lenders.




          “Required Term B Lenders” means, as of any date of determination, Term B Lenders
holding more than 50% of the Commitments or Outstanding Amount of the Term B Facility on such date;
provided that the portion of the Term B Facility held by any Defaulting Lender shall be
excluded for purposes of making a determination of Required Term B Lenders.




          “Responsible Officer” means the chief executive officer, president, chief financial
officer, senior executive vice president, executive vice president, senior vice president,
treasurer,



22









 






assistant treasurer or controller 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 limited liability company 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 any
Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock or other Equity
Interest, or on account of any return of capital to any Person’s stockholders, partners or members
(or the equivalent of any thereof), or any option, warrant or other right to acquire any such
dividend or other distribution or payment.




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




          “Restructuring” means, collectively, the following transactions: (a) the formation of
Travel Media as a new direct Subsidiary of the Company; (b) the contribution to the Borrower by
each then existing holder of Equity Interests in the Company of all Equity Interests of the Company
owned by such Person in exchange for the issuance to such Person by the Borrower of Equity
Interests in the Borrower as more particularly described in Schedule 1.02 of the Initial
Information Certificate; (c) the conversion of the Company from a Delaware close corporation to a
Delaware limited liability company such that immediately after giving effect to such conversion,
the Company shall continue as the same entity and shall have under Delaware law all the rights,
privileges, powers, assets, liabilities, and obligations as it had immediately prior to such
conversion; (d) the contribution to Travel Media by the Company and its Subsidiaries of all the
Equity Interests of the Subsidiaries of the Company which own and/or the various assets and rights
constituting, the lines of business known as The Travel Channel; and (e) all other transactions
entered into in connection with the transactions described in the foregoing clauses (a) – (d).




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




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




          “Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between the Borrower and any Cash Management Bank.




          “Secured Hedge Agreement” means any interest rate Swap Contract required or permitted
under Article VI or VII that is entered into by and between the Borrower and any
Hedge Bank.




23









 








          “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the
Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations
owing to which are or are purported to be secured by the Collateral under the terms of this
Agreement and the Collateral Documents.




          “Securities” has the meaning provided in Section 1.02.




          “Securities Account” has the meaning provided in Section 1.02.




          “Security Entitlements” has the meaning provided in Section 1.02.




          “Security Intermediary” has the meaning provided in Section 1.02.




          “Selling Equity Holder” means Cox Communications Holdings, Inc.




          “Selling Equity Holder Distribution” means the delivery by the Selling Equity Holder
to the Borrower on the Closing Date of all outstanding Equity Interests in the Borrower owned by
the Selling Equity Holder in exchange for the distribution by the Borrower to the Selling Equity
Holder of all outstanding Equity Interests in Travel Media.




          “Significant Equity Holder” means each of (a) Advance/Newhouse Programming
Partnership, (b) DHC and (c) and any other Person if 50% or more of the Voting Interests of such
Person are “beneficially owned” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934), directly or indirectly, by Advance/Newhouse Programming Partnership or DHC or any
combination thereof.




          “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.




          “Software” has the meaning provided in Section 1.02.




          “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the Voting Interests are at the
time beneficially owned, or the management of which is otherwise Controlled, directly, or



24









 






indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Borrower.




          “Supporting Obligations” has the meaning provided in Section 1.02.




          “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 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).




          “Synthetic Debt” means, with respect to any Person as of any date of determination
thereof, all obligations of such Person in respect of transactions entered into by such Person that
are intended to function primarily as a borrowing of funds but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP.




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




          “Tangible Chattel Paper” has the meaning provided in Section 1.02.




25









 








          “Target Businesses” has the meaning provided in Section 7.07.




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




          “Term B Commitment” means, as to each Term B Lender, its obligation to make Term B
Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule
2.01 under the caption “Term B Commitment” or opposite such caption in the Assignment and
Assumption pursuant to which such Term B Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.




          “Term B Facility” means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the Term B Commitments at such time and (b) thereafter, the aggregate principal
amount of the Term B Loans of all Term B Lenders outstanding at such time.




          “Term B Lender” means at any time, (a) on or prior to the Closing Date, any Lender
that has a Term B Commitment at such time and (b) at any time after the Closing Date, any Lender
that holds Term B Loans at such time.




          “Term B Loan” means an advance made by any Term B Lender under the Term B Facility.




          “Term B Note” means a promissory note made by the Borrower in favor of a Term B
Lender, evidencing Term B Loans made by such Term B Lender, substantially in the form of
Exhibit B and duly completed for such Loans.




          “Termination Date” means the first date on which all of the following have occurred:
(a) the principal amount of all Loans and all accrued and unpaid interest on all Loans have been
paid in full in cash (the date of such payment, the “Loan Payment Date”); (b) all expense
reimbursement, indemnity and other payment Obligations (including, without limitation, any
termination value under any Secured Hedge Agreement) of the Borrower under any Loan Document which
are or have become due and payable on or prior to the Loan Payment Date have been paid in full in
cash; and (c) the Aggregate Commitments have terminated.




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




          “Total Outstandings” means the aggregate Outstanding Amount of all Loans.




          “Trademark” has the meaning provided in Section 1.02.




26









 








          “Trademark License” has the meaning provided in Section 1.02.




          “Transaction” means, collectively; (a) the Restructuring; (b) the execution
and delivery of this Agreement and the other Loan Documents by the Borrower, the Lenders and the
Administrative Agent and the funding of the Term B Borrowing; (c) the Company Contribution; (d) the
execution and delivery by the Borrower, the Company, Travel Media and the other Subsidiaries of the
Borrower and the other parties thereto of the other Transaction Documents to which they are a
party, (e) the distribution by the Company to the Borrower in a spin-off of all outstanding Equity
Interests in Travel Media; (f) the Travel Media Contribution; (g) the Selling Equity Holder
Distribution; and (f) the payment of the fees and expenses incurred in connection with the
consummation of the foregoing.




          “Transaction Documents” means (a) the documents in connection with the Transaction
described in Schedule 4.02 of the Initial Information Certificate, and (b) the Loan Documents.




          “Travel Media” means Travel Media, Inc., a Delaware corporation.




          “Travel Media Contribution” means the contribution by the Borrower to the equity of
Travel Media on the Closing Date of up to $1,350,000,000 of the proceeds of the Term B Borrowing.




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




          “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or priority.




          “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 for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.




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




          “Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower (other than the
Company) designated as an “Unrestricted Subsidiary” on Schedule 1.02 of the Initial Information
Certificate and (b) any Subsidiary of the Borrower organized or acquired after the Closing Date and
any Restricted Subsidiary (other than the Company) which, in either case, is designated as an
“Unrestricted Subsidiary”, in each case, in accordance with Sections 6.02(e) and
7.11.




27









 








          “Unrestricted Subsidiary Operating Cash Flow” means, at any date of determination with
respect to any Unrestricted Subsidiaries on a combined basis, an amount equal to the sum of (a)
Consolidated Net Income of such Unrestricted Subsidiaries for the most recently completed
Measurement Period plus (b) the following to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges of such Unrestricted Subsidiaries on a
combined basis, (ii) the provision for Federal, state, local and foreign taxes payable, (iii)
depreciation and amortization expense (other than the amortization of payments for the acquisition
of film rights and broadcast programming) and (iv) other non-cash expenses (including, without
limitation, (A) expenses recorded for long term incentive plans, (B) amortization expense for
launch and representation rights, (C) expenses to record minority interests in consolidated
results, (D) equity gain or loss of other unconsolidated ventures, and (E) unrealized gain or loss
on mark-to-market calculations for derivative financial instruments).




          “Voting Interests” means the Equity Interests of any Person having ordinary power to
vote in the election of members of the board of directors, managers, trustees or other controlling
Persons, of such Person (irrespective of whether, at the time, Equity Interests of any other class
or classes of such entity shall have or might have voting power by reason of the happening of any
contingency).




          “Wholly Owned Subsidiary” means (a) any Domestic Subsidiary all of the Equity
Interests of which are owned by the Borrower directly or indirectly through other such Subsidiaries
and (b) any Foreign Subsidiary if (i) all of the Equity Interests of such Foreign Subsidiary (other
than directors’ qualifying shares and Foreign Required Minority Interests, in each case only to the
extent required by applicable law) are owned by the Borrower directly or indirectly through other
such Subsidiaries, and (ii) the Borrower, by contract or otherwise, controls the management and
business of such Foreign Subsidiary and derives the economic benefits of ownership of such Foreign
Subsidiary to substantially the same extent as if all of the Equity Interests of such Foreign
Subsidiary were owned directly by the Borrower.




          1.02 Collateral Definitions. (a) UCC Definitions. Terms used in this agreement and
not otherwise defined herein which are defined in the UCC have the meanings specified therein,
including the following terms: Account, Account Debtor Chattel Paper, Document, Electronic Chattel
Paper, Entitlement Holder, Equipment, Financial Asset, Fixture, General Intangible, Goods,
Instruments, Inventory, Investment Property, Letter-of-Credit Right, Payment Intangible, Proceeds,
Security, Security Entitlement, Security Intermediary, Supporting Obligation and Tangible Chattel
Paper.




          (b) Other Collateral Definitions. As used in this Agreement, the following terms
related to the Collateral have the meanings specified below:




          “Commercial Tort Claim” means a claim arising in tort with respect to which the
claimant is the Borrower.




          “Copyright License” means any written agreement, now or hereafter in effect, granting
any right to any third party under any Copyright now or hereafter owned by the Borrower or that the
Borrower otherwise has the right to license, or granting any right to the Borrower under any



28









 






Copyright now or hereafter owned by any third party, and all rights of the Borrower under any
such agreement.




          “Copyrights” means all of the following now owned or hereafter acquired by the
Borrower, (a) all copyright rights in any work subject to the copyright laws of the United States
or any other country, whether as author, assignee, transferee or otherwise, and (b) all
registrations and applications for registration of any such copyright in the United States or any
other country, including registrations, recordings, supplemental registrations and pending
applications for registration in the United States Copyright Office, including those listed on
Schedule 3.01 of each Information Certificate.




          “Deposit Account” means a demand, time, savings, passbook, or similar account
(including all bank accounts, collection accounts and concentration accounts, together with all
funds held therein and all certificates and instruments, if any, from time to time representing or
evidencing such accounts) maintained by the Borrower with a bank.




          “Intellectual Property” means all intellectual property of every kind and nature now
owned or hereafter acquired by the Borrower, including inventions, designs, Patents, Copyrights,
Trademarks, trade secrets, domain names, confidential or proprietary technical and business
information and know-how.




          “License” means any Patent License, Trademark License, Copyright License or other
license or sublicense agreement of any other Intellectual Property to which the Borrower is a
party.




          “Patent License” means any written agreement, now or hereafter in effect, granting to
any third party any right to make, use or sell any invention on which a Patent, now or hereafter
owned by the Borrower or that the Borrower otherwise has the right to license, is in existence, or
granting to the Borrower any right to make, use or sell any invention on which a Patent, now or
hereafter owned by any third party, is in existence, and all rights of the Borrower under any such
agreement.




          “Patents” means all of the following now owned or hereafter acquired by the Borrower,
(a) all letters patent of the United States or the equivalent thereof in any other country, all
registrations and recordings thereof, and all applications for letters patent of the United States
or the equivalent thereof in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office or any similar offices in any other
country, including those listed on Schedule 3.01 to any Information Certificate and (b) all
reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the
inventions disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.




          “Proceeds” means all of the following now owned or hereafter acquired by the Borrower:
(a) whatever is acquired upon the sale, lease, license, exchange, or other disposition of any
Collateral; (b) whatever is collected on, or distributed on account of, any Collateral; (c) rights
arising out of any Collateral; and (d) to the extent of the value of any Collateral and to the
extent




29









 




payable to the Borrower or the secured party, insurance payable by reason of the loss or
nonconformity of, defects or infringement of rights in, or damage to, such Collateral.




     “Securities Account” shall mean an account to which a Financial Asset is or may be credited
in accordance with an agreement under which the Person maintaining the account undertakes to treat
the Person for whom the account is maintained as entitled to exercise rights that comprise the
Financial Asset.



     “Software” means a computer program, not including a computer program that is included in
the definition of Goods.



     “Trademark License” means any written agreement, now or hereafter in effect, granting to
any third party any right to use any Trademark now or hereafter owned by the Borrower or that the
Borrower otherwise has the right to license, or granting to the Borrower any right to use any
Trademark now or hereafter owned by any third party,  and all rights of the Borrower under any such
agreement.



     “Trademarks” means all of the following now owned or hereafter acquired by the Borrower:
(a) all trademarks, service marks, trade names, corporate names, company names, business names,
fictitious business names, trade dress, logos, other source or business identifiers, now existing
or hereafter adopted or acquired, all registrations and recordings thereof, and all registration
and recording applications filed in connection therewith, including registrations and registration
applications in the United States Patent and Trademark Office or any similar offices in any State
of the United States (except for “intent to use” applications for trademark or service mark
registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, unless and until
an Amendment to Allege Use or a Statement of Use under Sections 1(c) and 1(d) of said Act has been
filed) or any other country or any political subdivision thereof, and all extensions or renewals
thereof, including those listed on Schedule 3.01 to each Information Certificate and (b) all
goodwill associated therewith or symbolized thereby.



          1.03 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, Loan Document or other
Transaction Document) shall be construed as referring to such
agreement, instrument or other document as
from time to time amended, amended and restated, supplemented or otherwise modified, including,
without limitation, in the case of any such agreement, instrument or other document with respect to
any Indebtedness or commitment to extend credit, any agreement, instrument or other document
Refinancing such Indebtedness or commitment as from time to time amended, supplemented or



30











 





otherwise modified (subject to any restrictions on such amendments, amendments and
restatements, supplements, modifications or Refinancing 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, Preliminary
Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such
references appear, (v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and any reference to
any law or regulation shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, and (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to
any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



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




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



          1.04 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.




     (c) Pro Forma Calculations. Notwithstanding anything herein to the contrary,
any calculation of the Consolidated Borrower Leverage Ratio, Consolidated Restricted




31












 







Subsidiary Leverage Ratio and Unrestricted Subsidiary Operating Cash Flow for any
Measurement Period during which a Business Acquisition (including the Business Acquisition
by the Borrower of the Company in the Restructuring), Business Disposition (including the
Disposition by the Borrower of the Equity Interests in Travel Media in the Selling
Shareholder Distribution), any Designation of an Unrestricted Subsidiary as a Restricted
Subsidiary or any Designation of a Restricted Subsidiary as an Unrestricted Subsidiary (in
each case, other than any Excluded Transactions) shall have occurred (or shall be deemed to
have occurred) shall be made on a Pro Forma Basis for purposes of: (i) determining whether
the condition precedent in Section 4.01(e) is satisfied; (ii) determining compliance
with Section 7.12; and (iii) in the case of any proposed transaction, determining
satisfaction of any conditions precedent to such transaction under this Agreement and
otherwise determining whether a Default or Event of Default will result from the
consummation thereof, including, without limitation, any Disposition (or deemed
Disposition), determining whether such a Default or Event of Default would result under
Section 7.12 or otherwise from the consummation of such transaction.




     “Business Acquisition” by any Person means the purchase or acquisition
in a single transaction or a series of related transactions by such Person and its
Affiliates of (a) any Equity Interests of another Person which are sufficient to
permit such Person and its Affiliates to Control such other Person or (b) all or any
substantial portion of the property (including, without limitation, all or a
substantial portion of the property comprising a division, unit or line of business)
of another Person, whether or not involving a merger or consolidation with such
other Person.




     “Business Disposition” by any person means the Disposition in a single
transaction or series of related transactions by such Person and its Affiliates of
(a) any Equity Interests of another Person sufficient to permit such Person and its
Affiliates to Dispose of Control of such other Person or (b) all or any substantial
portion of the property (including, without limitation, all or a substantial portion
of the property comprising a division, unit or line of business (including cash)) of
another Person, whether or not involving a merger or consolidation.




     “Excluded Transaction” means, for any Measurement Period, (a) any
Business Acquisition by the Borrower and its Restricted Subsidiaries during such
Measurement Period for which the aggregate consideration (including assumed
Indebtedness) paid by the Borrower and its Restricted Subsidiaries does not exceed
$50,000,000; provided, however, that no such Business Acquisition
shall be deemed to be an Excluded Transaction if the aggregate consideration
(including assumed Indebtedness) paid by the Borrower and its Restricted
Subsidiaries in such Business Acquisition, together with the aggregate consideration
(including assumed Indebtedness) paid by the Borrower and its Restricted
Subsidiaries in all other Business Acquisitions during such Measurement Period which
have been treated as Excluded Transactions, would exceed $150,000,000; and
provided, further, that no proposed Business



32









 







Acquisition shall be deemed to be an Excluded Transaction for purposes of
determining whether the conditions precedent under this Agreement for such proposed
transaction have been satisfied pursuant to this Section 1.04(c), and (b)
any Business Disposition by the Borrower and its Restricted Subsidiaries during such
Measurement Period if the aggregate fair market value of the cash and other property
Disposed of by the Borrower and its Restricted Subsidiaries does not exceed
$50,000,000; provided, however, that no such Business Disposition
shall be deemed to be an Excluded Transaction if the aggregate fair market value of
the property Disposed of by the Borrower and its Restricted Subsidiaries in such
Business Disposition, together with the aggregate fair market value of the other
property Disposed of by the Borrower and its Restricted Subsidiaries in all other
Business Dispositions during such Measurement Period which have been treated as
Excluded Transactions would exceed $150,000,000; provided, further,
that no proposed Disposition, Designation of a Restricted Subsidiary as an
Unrestricted Subsidiary or Designation of an Unrestricted Subsidiary as a Restricted
Subsidiary shall be deemed to be an Excluded Transaction for purposes of determining
whether the conditions precedent under this Agreement for such proposed transaction
have been satisfied pursuant to this Section 1.04(c).




     “Pro Forma Basis” means, for purposes of calculating the Consolidated
Borrower Leverage Ratio, Consolidated Restricted Subsidiary Leverage Ratio and
Unrestricted Subsidiary Operating Cash Flow for any Measurement Period for any of
the purposes specified in this Section 1.04(c), and with respect to each
proposed Business Acquisition, Business Disposition, Designation of an Unrestricted
Subsidiary as a Restricted Subsidiary and Designation of a Restricted Subsidiary as
an Unrestricted Subsidiary and each such transaction actually consummated in such
Measurement Period (including, without limitation, in connection with the
Transaction but, in any case, other than any Excluded Transaction), that such
financial ratio shall be calculated on a pro forma basis based on the following
assumptions: (a) each such transaction shall be deemed to have occurred on the first
day of such Measurement Period; (b) any funds to be used by any Person in
consummating any such transaction will be assumed to have been used for that purpose
as of the first day of such Measurement Period; (c) any Indebtedness to be incurred
by any Person in connection with the consummation of any such transaction (including
the Term B Borrowing, in the case of the Transaction) will be assumed to have been
incurred on the first day of such Measurement Period; (d) the gross interest
expenses, determined in accordance with GAAP, with respect to such Indebtedness
assumed to have been incurred on the first day of such Measurement Period that bears
interest at a floating rate shall be calculated at the current rate (as of the date
of such calculation) under the agreement governing such Indebtedness (including this
Agreement if the Indebtedness is incurred hereunder); and (e) any gross interest
expense, determined in accordance with GAAP, with respect to Indebtedness
outstanding during such Measurement Period that was or is to be refinanced with
proceeds of a transaction assumed to have been incurred as of the first day of the



33









 







Measurement Period will be excluded from such calculations (and to the extent
not already excluded pursuant to clause (a) or (b) above, the principal amount of
such Indebtedness shall be excluded).




     (d) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or
any similar reference shall, in each case, be deemed to include each variable interest
entity that the Borrower is required to consolidate pursuant to FASB Interpretation No. 46 –
Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003)
as if such variable interest entity were a Subsidiary as defined herein.



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




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




ARTICLE II

COMMITMENTS AND BORROWINGS




          2.01 Loans.





     (a) Term B Borrowing. Subject to the terms and conditions set forth herein,
each Term B Lender severally agrees to make a single loan to the Borrower on the Closing
Date in an amount not to exceed such Term B Lender’s Term B Commitment. The Term B
Borrowing shall consist of Term B Loans made simultaneously by the Term B Lenders in
accordance with their respective Term B Commitments. Amounts borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed. Term B Loans may be
Base Rate Loans or Eurodollar Rate Loans as further provided herein.




     (b) Additional Term Borrowings. Subject to the terms and conditions set forth
herein and in any Credit Agreement Supplement establishing an Additional Term Facility, each
Appropriate Lender under such Facility severally agrees to make a single loan to the
Borrower on the Additional Term Effective Date for such Facility in an amount not to exceed
such Lender’s Additional Term Commitment under such Facility. The Additional Term Borrowing
under each Additional Term Facility shall consist of Additional Term Loans made
simultaneously by the Additional Term Lenders under such Facility in accordance with their
respective Additional Term Commitments under such Facility. Amounts borrowed under this
Section 2.01(b) and the applicable Credit



34









 







Agreement Supplement and repaid or prepaid may not be reborrowed. Additional Term
Loans may be Base Rate Loans or Eurodollar Rate Loans as further provided herein and in the
applicable Credit Agreement Supplement.



          2.02 Borrowings, Conversions and Continuations of Loans. (a) Borrowings, Conversions and
Continuations Generally. Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar 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 Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) 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;
provided, however, that if the Borrower wishes to request Eurodollar Rate Loans
having an Interest Period other than one, two, three or six months in duration as provided in the
definition of “Interest Period”, the applicable notice must be received by the Administrative Agent
not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing,
conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the
Appropriate Lenders of such request and determine whether the requested Interest Period is
acceptable to all of them. Not later than 11:00 a.m., three Business Days before the requested
date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the
Borrower (which notice may be by telephone) whether or not the requested Interest Period has been
consented to by all the Lenders. Each Borrowing of, conversion to or continuation of Eurodollar
Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. 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 Eurodollar 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, (v) if applicable,
the duration of the Interest Period with respect thereto, and (vi) if Loans are then outstanding
under more than one Facility, the applicable Facility the subject of such Loan Notice. 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 shall be made as, or
converted to, Base Rate Loans. Any such 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 Eurodollar
Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
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.





     (b) Notice to Lenders and Funding of Borrowings. Following receipt of a Loan
Notice, the Administrative Agent shall promptly notify each Appropriate Lender of



35









 







the amount of its Applicable Percentage under the applicable Facility 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 Appropriate Lender of the details of any
automatic conversion to Base Rate Loans described in Section 2.02(a). In the case
of a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s Office not
later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Borrowing, Section 4.01, and if such Borrowing is an
Additional Term Borrowing, the conditions set forth in the applicable Credit Agreement
Supplement), the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting the
account of the Borrower on the books of Bank of America with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Borrower.




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




     (d) Notice of Interest Rate. The Administrative Agent shall promptly notify the
Borrower and the Appropriate Lenders of the interest rate applicable to any Interest Period
for Eurodollar 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 America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.




     (e) Maximum Interest Periods. After giving effect to the Term B Borrowing, all
conversions of Term B Loans from one Type to the other, and all continuations of Term B
Loans as the same Type, there shall not be more than five (5) Interest Periods in effect in
respect of the Term B Facility. The maximum number of Interest Periods in effect for any
Additional Term Facility shall be set forth in the applicable Credit Agreement Supplement.




     (f) Limitations on Eurodollar Rate Borrowings. Anything in this Section
2.02 to the contrary notwithstanding, the Borrower may not select the Eurodollar Rate
for the initial Borrowing.



          2.03 Additional Term Facilities.





     (a) Borrower Request. The Borrower, by written notice to the Administrative
Agent (which shall promptly notify all Lenders) (an “Additional Term Facility
Notice”), may from time to time request the establishment of one or more additional
Facilities in accordance with the terms hereof (each an “Additional Term Facility”);
provided that



36









 







each such requested Additional Term Facility hereunder shall be in a principal amount
of not less than $100,000,000 and the aggregate principal amount of all Additional Term
Facilities shall not exceed $500,000,000 (to an aggregate principal amount for all
Facilities hereunder of no more than $2,000,000,000). Each Lender shall be given the
opportunity to participate in the establishment of any Additional Term Facility by delivery
of a copy of each Additional Term Facility Notice, in which the Borrower (in consultation
with the Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten Business Days from the date
of delivery of such notice to the Lenders).




     (b) Lender Elections to Participate. Each Lender shall notify the
Administrative Agent within the time period specified in the applicable Term Facility
Increase Notice whether or not it agrees to provide an Additional Term Commitment and, if
so, the amount it is willing to provide. Any Lender not responding within such time period
shall be deemed to have declined to provide any Additional Term Commitment, as applicable.




     (c) Notification by Administrative Agent; Invitation of Eligible Assignees.
The Administrative Agent shall notify the Borrower and each Lender of all Lenders’ responses
to each request made hereunder. If necessary to establish the full amount of an Additional
Term Facility, and subject to the approval of the Administrative Agent (which approval shall
not be unreasonably withheld, conditioned or delayed), the Borrower may also invite
additional Eligible Assignees to become Additional Term Lenders under a proposed Additional
Term Facility pursuant to a joinder agreement reasonably satisfactory to the Administrative
Agent (which joinder agreement may be a part of the Credit Agreement Supplement establishing
such Facility).




     (d) Credit Agreement Supplement. Each Additional Term Facility shall be
established and effected (including the final allocation of Additional Term Commitments
thereunder) by a supplement to this Agreement (each a “Credit Agreement Supplement”)
executed by the Borrower, the Administrative Agent, and each existing Lender and each
Eligible Assignee invited to participate in such Facility pursuant to Section
2.03(c) in each case that has agreed to provide an Additional Term Commitment under such
Facility. Each Credit Agreement Supplement establishing an Additional Term Facility shall
set forth the terms and conditions for the Additional Term Loans under such Facility,
subject to Section 2.03(f). Each Credit Agreement Supplement establishing any
Additional Term Facility shall become effective (the “Additional Term Facility Effective
Date”) upon the satisfaction of the conditions precedent to such effectiveness as
therein provided, which conditions precedent shall in any case include those specified in
Section 2.03(e), unless the conditions precedent specified in Section
2.03(e) are waived with the consent of the Required Lenders (before giving effect to
such Credit Agreement Supplement) and each Lender with a Commitment under such Additional
Term Facility. Each Credit Agreement Supplement may, without the consent of the Required
Lenders or any other Lender, effect such technical amendments to Articles I,
II and III of this Agreement as may be appropriate in the opinion of the
Administrative Agent to effect the



37









 







provisions of this Section 2.03; provided however, that any
such amendments (i) shall not amend the definition of “Required Lenders” or Section
2.11, except as provided in Section 11.01 and (ii) shall not amend or otherwise
modify any material rights and obligations of the non-consenting Lenders.




     (e) Conditions to Effectiveness. The establishment of any Additional Term
Facility pursuant to a Credit Agreement Supplement shall become effective subject to the
satisfaction of the conditions precedent in such Credit Agreement Supplement and the
following conditions precedent:




     (i) each of the conditions set forth in Section 4.02 shall be
satisfied; and




     (ii) the Borrower shall be in compliance with each of the covenant set forth in
Section 7.12 on a Pro Forma Basis after giving effect to the Additional Term
Borrowing to be made on any Additional Term Facility Effective Date.




     (f) Terms of Additional Term Loans. The terms of Loans under any Additional
Term Facility established by a Credit Agreement Supplement shall be as follows unless
otherwise agreed to by the Required Lenders, before giving effect to such Credit Agreement
Supplement:




     (i) the Borrower shall repay to the Lenders under an Additional Term Facility
the aggregate principal amount of such Additional Term Loans (the “Initial
Outstanding Amount”) on such dates and in such amounts as are set forth in the
applicable Credit Agreement Supplement for such Additional Term Facility;
provided that in no event shall the annual amortization of the Initial
Outstanding Amount for any period prior to the Maturity Date for the Term B Facility
or any then existing Additional Term Facility be based upon annual amounts equal to
more than 1% of such Initial Outstanding Amount; and




     (ii) the Maturity Date of any Loans under any newly established Additional Term
Facility shall not be earlier than the Maturity Date for the Term B Loans or any
then outstanding Additional Term Loans.




     (g) Equal and Ratable Benefit. The Additional Term Facilities established
pursuant to this Section 2.03 shall be entitled to all the benefits afforded by this
Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Collateral and the security interests created hereunder and by
the Collateral Documents, except that, at the Borrower’s discretion, any Loans under any new
Additional Term Facility established pursuant to a Credit Agreement Supplement may be
subordinated in right of payment to the Loans under any then existing Facility and the Loans
under such newly established Additional Term Facility may be secured by Liens which are
subordinate to the Liens then existing under this Agreement and the Collateral Documents, in
each case, as and to the extent provided in such Credit Agreement Supplement. The Borrower
shall take any actions reasonably



38









 







required by the Administrative Agent to ensure and/or demonstrate that the Liens and
security interests granted under this Agreement and the Collateral Documents continue to be
perfected under the UCC or otherwise after giving effect to the establishment of any such
new Additional Term Facility.




     (h) Conflicting Provisions. Except as otherwise expressly provided herein,
this Section shall supersede any provisions in Section 2.11 or 11.01 to the
contrary.



          2.04 Prepayments.





     (a) Optional. Subject to the last sentence of this Section 2.04(a),
the Borrower may, upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Loans in whole or in part without premium or penalty; provided
that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m.
(1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on
the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall
be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof;
and (C) 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 the date and amount of such
prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such Lender’s
ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect
of the relevant Facility). If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and payable on
the date specified therein. Any prepayment of a Eurodollar 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 prepayment of the outstanding Loans pursuant to this
Section 2.04(a) shall be applied (x) ratably to the Term B Facility and any
Additional Term Facility and (y) to the principal repayment installments of each Facility on
a pro-rata basis, and each such prepayment shall be paid to the Lenders in accordance with
their respective Applicable Percentages in respect of each relevant Facility.
Notwithstanding anything to the contrary contained herein, the Borrower shall not be
permitted to prepay (x) the Term B Facility pursuant to this Section 2.04(a) during
the period from the Closing Date through the date ten Business Days thereafter or (y) any
Additional Term Loans during any period specified in the applicable Credit Agreement
Supplement.




     (b) Mandatory.




     (i) Dispositions. If the Borrower or any of its Restricted Subsidiaries
Disposes of any property (other than any Disposition of any property permitted by
Sections 7.05(a) through (i)) which results in the realization by
such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal
amount of Loans equal to 100% of such Net Cash Proceeds not later than the fifth
Business Day



39









 







following receipt thereof by such Person (such prepayments to be applied as set
forth in clause (ii) below); provided, however, that, with
respect to any Net Cash Proceeds realized under a Disposition described in this
Section 2.04(b)(i), at the election of the Borrower (as notified by the
Borrower to the Administrative Agent not later than the fifth Business Day following
receipt of such Net Cash Proceeds), and so long as no Event of Default shall have
occurred and be continuing, the Borrower or such Restricted Subsidiary may reinvest
all or any portion of such Net Cash Proceeds to acquire, maintain, develop,
construct, improve, upgrade or repair assets useful in the business of the Borrower
or any Restricted Subsidiary so long as (A) within 365 days after the receipt of
such Net Cash Proceeds, such Net Cash Proceeds shall have been so reinvested or a
definitive agreement for such reinvestment shall have been entered into (as
certified by the Borrower in writing to the Administrative Agent) and (B) within 180
days after the execution of such definitive agreement, such reinvestment shall have
been consummated (as certified by the Borrower in writing to the Administrative
Agent); and provided further, however, that any such Net
Cash Proceeds not so reinvested or subject to such definitive agreement shall be
immediately applied to the prepayment of the Loans as set forth in this Section
2.04(b)(i). Notwithstanding the foregoing, in no event shall any prepayment be
required under this Section 2.04(b)(i) in respect of a Disposition of
property by the Company or any other Restricted Subsidiary to the extent the Company
or such Restricted Subsidiary is prohibited from distributing to the Borrower an
amount equal to such prepayment by the terms of any Material Indebtedness Agreement.




     (ii) Application of Prepayments Generally. Each prepayment of Loans
pursuant to the foregoing provisions of this Section 2.04(b) shall be
applied ratably to each of the Term B Facility and each Additional Term Facility and
to the principal repayment installments of each such Facility on a pro rata basis.




     (iii) Deferred Payments. Notwithstanding any of the other provisions of
this Section 2.04(b), so long as no Designated Event of Default shall have
occurred and be continuing, if, on any date on which a prepayment would otherwise be
required to be made pursuant to clause (i) of this Section 2.04(b), the
aggregate amount of Net Cash Proceeds required by such clause to be applied to
prepay Loans on such date is less than or equal to $1,000,000, the Borrower may
defer such prepayment until the first date on which the aggregate amount of Net Cash
Proceeds or other amounts otherwise required under clause (i) of this Section
2.04(b) to be applied to prepay Loans exceeds $1,000,000. Upon the occurrence
of a Designated Event of Default during any such deferral period, the Borrower shall
immediately prepay the Loans in the amount of all Net Cash Proceeds received by the
Borrower and other amounts, as applicable, that are required to be applied to prepay
Loans under this Section 2.04(b) (without giving effect to the first
sentence of this clause (iii)) but which have not previously been so applied.



40









 






     (iv) Eurodollar Prepayment Account. Notwithstanding any of the other
provisions of this Section 2.04(b), so long as no Designated Event of
Default shall have occurred and be continuing, the Borrower shall have the right, in
lieu of making any prepayment required under Section 2.04(b)(i), to deposit
an amount equal to such mandatory prepayment with the Administrative Agent in a cash
collateral account maintained (pursuant to documentation reasonably satisfactory to
the Administrative Agent) by and in the sole dominion and control of the
Administrative Agent. Any amounts so deposited shall be held by the Administrative
Agent as collateral for the prepayment of such Eurodollar Rate Loans and shall be
applied to the prepayment of the applicable Eurodollar Rate Loans at the end of the
current Interest Periods applicable thereto or, sooner, at the election of the
Administrative Agent, upon the occurrence of a Designated Event of Default. At the
request of the Borrower, amounts so deposited shall be invested by the
Administrative Agent in Cash Equivalents maturing on or prior to the date or dates
on which it is anticipated that such amounts will be applied to prepay such
Eurodollar Rate Loans; provided, that (A) any interest earned on such Cash
Equivalents will be for the account of the Borrower, (B) the Administrative Agent
will have no liability to the Borrower for any loss on any such Cash Equivalents and
(C) in the event of any loss on any such Cash Equivalents, the Borrower will deposit
with the Administrative Agent the amount of such loss at least one Business Day
before such mandatory prepayment is due in accordance with this clause (iv) to the
extent necessary to increase the amount on deposit to 100% of the amount necessary
to make such mandatory prepayment.



          2.05 Termination of Commitments. (a) Term B Commitments. The aggregate Term B
Commitments shall be automatically and permanently reduced to zero immediately upon the funding of
the Term B Borrowing.





     (b) Additional Term Commitments. The aggregate Additional Term Commitments
under each Additional Term Facility shall be automatically and permanently reduced to zero
immediately upon the funding of the Additional Term  Borrowing under such Facility.



          2.06 Repayment of Loans. (a) Term B Loans. The Borrower shall repay to the Term B
Lenders the aggregate principal amount of all Term B Loans outstanding on the following dates in
the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of
the application of prepayments in accordance with the order of priority set forth in
Section 2.05):




41









 





	 	 	 	 	 
	Date	 	Amount
	September 30, 2007
	 	$	3,750,000.00	 
	December 31, 2007
	 	$	3,750,000.00	 
	March 31, 2008
	 	$	3,750,000.00	 
	June 30, 2008
	 	$	3,750,000.00	 
	September 30, 2008
	 	$	3,750,000.00	 
	December 31, 2008
	 	$	3,750,000.00	 
	March 31, 2009
	 	$	3,750,000.00	 
	June 30, 2009
	 	$	3,750,000.00	 
	September 30, 2009
	 	$	3,750,000.00	 
	December 31, 2009
	 	$	3,750,000.00	 
	March 31, 2010
	 	$	3,750,000.00	 
	June 30, 2010
	 	$	3,750,000.00	 
	September 30, 2010
	 	$	3,750,000.00	 
	December 31, 2010
	 	$	3,750,000.00	 
	March 31, 2011
	 	$	3,750,000.00	 
	June 30, 2011
	 	$	3,750,000.00	 
	September 30, 2011
	 	$	3,750,000.00	 
	December 31, 2011
	 	$	3,750,000.00	 
	March 31, 2012
	 	$	3,750,000.00	 
	June 30, 2012
	 	$	3,750,000.00	 
	September 30, 2012
	 	$	3,750,000.00	 
	December 31, 2012
	 	$	3,750,000.00	 
	March 31, 2013
	 	$	3,750,000.00	 
	June 30, 2013
	 	$	3,750,000.00	 
	September 30, 2013
	 	$	3,750,000.00	 
	December 31, 2013
	 	$	3,750,000.00	 
	March 31, 2014
	 	$	3,750,000.00	 
	Maturity Date
	 	Balance	 





provided, however, that the final principal repayment installment of the Term B
Loans shall be repaid on the Maturity Date for the Term B Facility and in any event shall be in an
amount equal to the aggregate principal amount of all Term B Loans outstanding on such date.





     (b) Additional Term Loans. The Borrower shall repay the aggregate outstanding
principal amount of any Additional Term Loans under each Additional Term Facility in such
periodic installments, on such dates and in such amounts set forth in the applicable Credit
Agreement Supplement establishing such Facility; provided, however, that the
final principal installment shall be repaid on the Maturity Date for such Additional Term
Loans, and in any event shall be in an amount equal to the aggregate principal amount of all
such Additional Term Loans outstanding on the Maturity Date for such Additional Term Loans.



42









 





          2.07 Interest. (a) Interest Rates. Subject to the provisions of Section
2.07(b), (i) each Eurodollar Rate Loan under a Facility shall bear interest on the outstanding
principal amount thereof for each Interest Period applicable thereto at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate for such Facility;
and (ii) each Base Rate Loan under a Facility 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 for such Facility.





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




     (ii) If any amount (other than principal of any Loan) payable by the Borrower
under any Loan Document is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




     (iii) 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 a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.




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




     (b) Interest Payment Date. 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.



          2.08 Fees. The Borrower shall pay to the Lead Arrangers and the Administrative Agent for
their own respective accounts fees in the amounts and at the times specified in the applicable Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




          2.09 Computation of Interest; Evidence of Debt. (a) Computation of Interest. 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). Interest shall accrue on



43









 






each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided that any
Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(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.





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



          2.10 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, 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 Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect
of the relevant Facility (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 after 2:00 p.m. shall be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.





     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such 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 (or, in the case of a Borrowing of



44









 







Base Rate Loans, that such Lender has made such share available in accordance with and
at the time required by Section 2.02) and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable 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 immediately available 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 greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, 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 Borrower; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from the Borrower prior to the
time at which any payment is due to the Administrative Agent for the account of the
Lenders 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 Appropriate
Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Appropriate Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender,
in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.



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





     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Article II, and such funds are not made available to
the Borrower by the Administrative Agent because the conditions to the applicable



45









 







Borrowing set forth in Article IV or any applicable Credit Agreement Supplement
are not satisfied or waived in accordance with the terms hereof, the Administrative Agent
shall return such funds (in like funds as received from such Lender) to such Lender, without
interest.




     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Loans and to make payments pursuant to Section 11.04(c) are several and not
joint. The failure of any Lender to make any Loan or to make any payment under Section
11.04(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 or to make its payment under Section
11.04(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) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, toward payment of
interest and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and (ii)
second, toward payment of principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such parties.



          2.11 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the
Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender under such Facilities at such time to (ii) the aggregate amount of
the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in respect of the
Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time
obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities
owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender under such Facilities at such time to
(ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and
payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on
account of the Obligations in respect of the Facilities owing (but not due and payable) to all
Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at
such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater
proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at
face value)



46









 






participations in the Loans of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of Obligations in respect of the Facilities then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be,
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 (A) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or (B) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its 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.




ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




          3.01 Taxes.(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear
of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that if the Borrower shall be required by applicable law to deduct any Indemnified Taxes (including
any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent or any Lender, 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. 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. The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount of any



47









 







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 or such Lender, 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 (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, 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.


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





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




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



48









 






     (iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (A) a certificate to the
effect that such Foreign Lender is not (1) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (3) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (B) 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 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 or any Lender
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



49









 







Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent or such Lender, 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 or such
Lender, 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 or such Lender if the Administrative Agent or such Lender is required
to repay such refund to such Governmental Authority. This subsection shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the Borrower or any
other Person.



          3.02 Illegality. If any Lender determines that any 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 Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar 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 in the London
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 Eurodollar Rate Loans or to convert Base
Rate Loans to Eurodollar 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, convert all Eurodollar 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 Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar 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 Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans 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 Eurodollar Rate Loans 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.




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          3.04 Increased Costs; Reserves on Eurodollar Rate Loans.(a)  Increased Costs
Generally. If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.04(e));




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender 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




     (iii) impose on any Lender or the London interbank market any other condition,
cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to reduce the amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.





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




     (c) Certificates for Reimbursement. A certificate of a Lender setting forth
the amount or amounts necessary to compensate such Lender 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 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 to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s right to demand such compensation, provided that the
Borrower



51









 







shall not be required to compensate a Lender 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 notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’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).




     (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender,
as long as such Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently known as
“Eurocurrency liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by
such Lender (as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is payable on
such Loan, provided the Borrower shall have received at least 10 days’ prior notice
(with a copy to the Administrative Agent) of such additional interest from such Lender. If
a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such notice.



          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);




     (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; or




     (c) any assignment of a Eurodollar 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
11.13;


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The 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 Eurodollar Rate Loan made by
it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London


52









 






interbank eurodollar market for a comparable amount and for a comparable period, whether or not
such Eurodollar 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 11.13.



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




ARTICLE IV

CONDITIONS PRECEDENT TO BORROWINGS




          4.01 Conditions of Initial Borrowing. The obligation of each Term B Lender to make its Term B
Loan hereunder is subject to satisfaction of the following conditions precedent:





     (a) Documents, Certificates, Opinions and Other Instruments. 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) Agreement. Counterparts of this Agreement, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower, executed by
the Borrower;



53









 






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




     (iii) Information Certificate. An Information Certificate completed by
the Borrower and executed by the Borrower;




     (iv) Collateral Documents; Collateral. The following Collateral
Documents and Collateral:




     (A) Financing Statements. Proper financing statements in form
appropriate for filing under the applicable Uniform Commercial Code as more
particularly described in Schedule 5.02 of the Initial Information
Certificate;




     (B) Pledged Securities. (1) Certificates representing the
certificated Pledged Equity of the Borrower identified on Schedule 2.01 of
the Initial Information Certificate, accompanied by undated stock powers
executed in blank by the Borrower, (2) an Issuer Acknowledgment from each
direct Subsidiary of the Borrower which has issued any uncertificated
Pledged Equity to the Borrower identified on Schedule 2.01 of the Initial
Information Certificate, and (3) instruments evidencing the Pledged Debt of
the Borrower identified on Schedule 2.02 of the Initial Information
Certificate, accompanied by an undated instrument of assignment executed in
blank by the Borrower;




     (C) [Reserved];




     (D) Intellectual Property Security Agreement. An Intellectual
Property Security Agreement in respect of the Intellectual Property of the
Borrower identified on Schedule 3.01 of the Initial Information Certificate,
duly executed by the Borrower; and




     (E) Other. Evidence of the completion of all other actions,
recordings and filings of or with respect to the Collateral that the
Administrative Agent may deem necessary or desirable in order to perfect the
Liens created by this Agreement and the Security Documents.




     (v) Existing Liens. Termination statements and other releases in form
appropriate for filing with respect to each Lien identified on Schedule 5.01 of the
Initial Information Certificate to be terminated on the Closing Date, if any;




     (vi) Organization Documents.




     (A) Secretary’s Certificate. A certificate of the Secretary,
Assistant Secretary, or a Responsible Officers of the Borrower as to the



54









 







following matters and of the Company as to the matters described in the
following clause (2):




     (1) true and correct copies of resolutions of the Borrower
authorizing the execution and delivery by the Borrower of each Loan
Document to which it is a party and the performance of its
Obligations thereunder,




     (2) true and correct copies of the Organization Documents of
such Person, and




     (3) the incumbency and a specimen signature of the Secretary,
Assistant Secretary and each Responsible Officer of the Borrower
authorized to act as a Responsible Officer in connection with the
Loan Documents to which the Borrower is a party; and




     (B) Charters; Good Standing Certificates. Such documents and
certifications from the applicable Governmental Authority of such
jurisdictions as the Administrative Agent may reasonably require to evidence
that each of the Borrower and the Company is duly organized or formed, and
that each such Person is validly existing, in good standing and qualified to
engage in business in its jurisdiction of organization and, in the case of
the Borrower, each other jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;




     (vii) Legal Opinions.




     (A) A favorable opinion of Debevoise & Plimpton LLP, special New York
counsel to the Borrower, in form and substance reasonably satisfactory to
the Administrative Agent and each Lender; and




     (B) a favorable opinion of Richards, Layton & Finger, P.A., special
Delaware counsel to the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent and each Lender.




     (viii) Financial Statements; Projections; Business Plan.




     (A) The Audited Financial Statements;




     (B) unaudited pro forma consolidated financial statements of the
Borrower and its Subsidiaries and unaudited pro forma consolidating
financial statements of the Borrower and each Unrestricted Subsidiary, in
each case, as of December 31, 2006, which give effect to the Transaction on
a Pro Forma Basis; and



55









 






     (C) a business plan and budget of the Borrower and its Restricted
Subsidiaries including selected balance sheet items, statement of income and
selected cash flow items in form and substance reasonably satisfactory to
the Administrative Agent (it being understood that such business plan and
budget may contain material non-public information and will not be marked
“PUBLIC”);




     (ix) Responsible Officer’s Certificate. A certificate of a Responsible
Officer of the Borrower certifying to the following matters:




     (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;




     (C) that all consents, licenses, approvals and filings required in
connection with the consummation of the Transactions and which are more
particularly described on Schedule 6.03 of the Initial Information
Certificate have been obtained or made, and such consents, licenses and
approvals remain in full force and effect; and




     (D) that the conditions specified is Section 4.01(d)(i) and
(ii) have been satisfied; and




     (E) attaching a calculation of the Consolidated Borrower Leverage Ratio
as of December 31, 2006, determined on a Pro Forma Basis giving effect to
the Transaction;




     (x) Solvency. A certificate attesting to the Solvency of the Borrower
before and after giving effect to the Transaction, from its chief financial officer;




     (xi) Insurance. Evidence that all insurance required to be maintained
pursuant to this Agreement has been obtained and is in effect;




     (xii) Transaction Documents; Other Documents. Copies of each of the
following documents as may be requested by the Administrative Agent:




     (A) the Transaction Documents identified on Schedule 4.02 of the
Initial Information Certificate, duly executed by the parties thereto and in
form and substance reasonably satisfactory to the Lead Arrangers and the
Administrative Agent, together with all agreements, instruments and other
documents delivered in connection therewith as the Administrative Agent
shall request;



56









 






     (B) the voting agreements identified in Schedule 1.03 of the Initial
Information Certificate (to the extent not delivered pursuant to Section
4.01(a)(vi));




     (C) the Indebtedness agreements identified in Schedule 4.01 of the
Initial Information Certificate; and




     (D) the consents, licenses, approvals and filings required in
connection with the consummation of the Transaction which are identified in
Schedule 6.03 of the Initial Information Certificate; and




     (xiii) Other. Such other assurances, certificates, documents, consents
or opinions as the Administrative Agent may reasonably may require.




     (b) Lender Fees. All fees required to be paid to the Administrative Agent and
the Lead Arrangers on or before the Closing Date shall have been paid.




     (c) Counsel Fees. Unless waived by the Administrative Agent, the Borrower shall
have paid all fees, charges and disbursements of McGuireWoods LLP, special counsel to the
Administrative Agent (directly to such counsel if requested by the Administrative Agent) to
the extent invoiced at least one Business Day prior to the Closing Date, plus such
additional amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements 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) Consummation of Transactions.




     (i) The Restructuring shall have been consummated strictly in accordance with
the terms of the Transaction Documents, without any waiver or amendment not
consented to by the Lead Arrangers and the Administrative Agent (such consent not to
be unreasonably withheld, conditioned or delayed) of any term, provision or
condition set forth therein, and in compliance with all applicable requirements of
Law;




     (ii) there shall not exist any order, decree, judgment, ruling or injunction
which restrains the consummation of the remaining aspects of the Transaction; and




     (iii) arrangements reasonably satisfactory to the Lead Arrangers and the
Administrative Agent shall have been made for the consummation of the remaining
aspects of the Transaction.



57









 






     (e) Maximum Consolidated Borrower Leverage Ratio. The Consolidated Borrower
Leverage Ratio as of December 31, 2006, calculated on a Pro Forma Basis giving effect to the
Transaction, shall not exceed 5.25:1.




     (f) Closing Date. The Closing Date shall have occurred on or before May 16,
2007.


Without limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received written notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.




          4.02 Conditions to all Borrowings. The obligation of each Lender to honor any Request for
Borrowing (other than a Loan Notice requesting only a conversion of Loans, or a continuation of
Eurodollar Rate Loans) is subject to the following conditions precedent:





     (a) Representations and Warranties. The representations and warranties of the
Borrower contained in Article V or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or therewith, shall be
true and correct on and as of the date of such Borrowing, 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 except that for purposes of this
Section 4.02, the representations and warranties contained in Sections
5.05(a) and (b) shall be deemed to refer to the most recent financial statements
furnished pursuant to Sections 6.01(a) and (b), respectively.




     (b) No Default. No Default shall exist, or would result from such proposed
Borrowing or from the application of the proceeds thereof.




     (c) Request for Borrowing. The Administrative Agent shall have received a
Request for Borrowing in accordance with the requirements hereof.



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




ARTICLE V

REPRESENTATIONS AND WARRANTIES




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




58









 








          5.01 Existence, Qualification and Power. The Borrower and each of its Restricted Subsidiaries
(a) is duly organized or formed, validly existing and, as applicable, in good standing under the
Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents and Transaction Documents to which it is a party and
consummate the Transaction, and (c) is duly qualified and is licensed and, as applicable, in good
standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in each case referred
to in the preceding clauses (a) (solely with respect to any Restricted Subsidiary), (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
and each of its Restricted Subsidiaries of each Loan Document and Transaction Document to which
such Person is or is to be a party have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any 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 such Person is a party or affecting such Person or the properties of such Person or any of
its Restricted Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (c) violate any
Law to which the Borrower or such Restricted Subsidiary or any of their respective property is
subject. Each of the Borrower and each Restricted Subsidiary is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent failure to do so could not
reasonably be expected to have a Material Adverse Effect.




          5.03 Governmental Authorization; Other Consents. (a) As of the Applicable Certificate Date
for each Information Certificate, in each case, 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 (i) the
execution, delivery or performance by, or enforcement against, the Borrower or any of its
Restricted Subsidiaries of this Agreement or any other Loan Document or Transaction Document to
which such Person is or is to be a party, or for the consummation of the Transactions, (ii) the
grant by the Borrower of the Liens granted by it pursuant to Article X of this Agreement
and the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the
Collateral Documents (including the first priority nature thereof) or (iv) the exercise by the
Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to Article X of this Agreement and the Collateral
Documents, except in each case described in the foregoing clauses (i) through (iv) for the
authorizations, approvals, actions, notices and filings described on Schedule 6.03 to such
Information Certificate, all of which have been duly obtained, taken, given or made and are in full
force and effect except as described on such schedule and others that, if not obtained, taken,
given or made, could not reasonably be expected to have a Material Adverse



59









 






Effect or materially impair the perfection of the Liens in favor of the Secured Parties on any
material Collateral or material portion of the Collateral.





     (b) As of the Applicable Certificate Date for each Information Certificate, all
applicable waiting periods in connection with the Transactions have expired without any
action having been taken by any Governmental Authority restraining, preventing or imposing
materially adverse conditions upon the Transactions or the rights of the Borrower or its
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them.




     (c) The Restructuring has been consummated in accordance with the Transaction Documents
and applicable Law.



          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 a
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) Audited Financial
Statements. 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 Company and
its Subsidiaries as of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; and (iii) to the extent required by GAAP, show all material
indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and Indebtedness.





     (b) Unaudited Financial Statements. With respect to the unaudited consolidated
financial statements of the Borrower and its Subsidiaries and the related consolidated
statements of income or operations, shareholders’ equity and cash flows delivered by the
Borrower pursuant to Section 6.01(b) on any date, such financial statements (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly present 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 4.01 of the Initial Information Certificate includes a schedule which
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.



60









 






     (c) No Material Adverse Effect. 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) Forecasted Balance Sheets. The consolidated forecasted balance sheet items,
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 4.01 or Section
6.01(c), as the case may be, were prepared in good faith on the basis of the assumptions
stated therein, which assumptions the Borrower believed to be reasonable in light of the
conditions existing at the time of delivery of such forecasts, and represented, at the time
of delivery, the Borrower’s best estimate of its goals for its future financial condition
and performance; provided that such forecasts are subject to contingencies, many of which
are beyond the Borrower’s control, and that no assurance can be given that such forecasts
will be realized.




     (e) Fairness of Pro Forma Financials. The consolidated pro forma balance sheet
of the Borrower and its Subsidiaries and the consolidating balance sheet of each
Unrestricted Subsidiary as at December 31, 2006, and the related consolidated (and in the
case of each Unrestricted Subsidiary, consolidating) pro forma statements of income and cash
flows of the Borrower and its Subsidiaries for the fiscal year then ended, certified by a
Responsible Officer of the Borrower, copies of which have been furnished to each Lender,
fairly present the consolidated (and in the case of each Unrestricted Subsidiary,
consolidating) pro forma financial condition of the Borrower and its Subsidiaries as at such
date and the consolidated (and in the case of each Unrestricted Subsidiary, consolidating)
pro forma results of operations of the Borrower and its Subsidiaries for the period ended on
such date, in each case giving effect to the Transaction, all in accordance with GAAP.



          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 the legality, validity or enforceability of, or 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, or any Transaction Document or the consummation of
the Transaction, or (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.




          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



61









 






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 Transaction.




          5.08 Liens; Ownership of Certain Property. As of the Applicable Certificate Date of each
Information Certificate:





     (a) Liens. The property of the Borrower is subject to no Liens, other than
Liens permitted by Section 7.01;




     (b) Owned Real Property. Schedule 3.03(b) of such Information Certificate sets
forth a complete and accurate list of all real property owned by the Borrower, if any,
showing as of such date, for each parcel (i) its street address, (ii) the county in which
the real estate records for such parcel are located, (iii) a brief description of its
current use, (iv) the Borrower’s good faith estimate of its current fair market value and
(v) whether all or a portion of such property has been leased to any other Person; and the
Borrower has good, marketable and insurable fee simple title to the real property owned by
the Borrower, free and clear of all Liens, other than Liens created or permitted by the Loan
Documents;




     (c) Leased Real Property. Schedule 3.03(c) to such Information Certificate
sets forth a complete and accurate list of all leases of real property under which the
Borrower is the lessee or lessor, if any, showing as of such date for each such property
(i) its street address, (ii) the county in which the real estate records for such property
are located, (iii) a brief description of its current use, (iv) the name of the lessor or
lessee, (v) the lease term, (vi) the annual rent, (vii) the Borrower’s good faith estimate
of the current fair market value of the Inventory and Equipment owned by the Borrower at
such leased location and (viii) whether all or a portion of such property has been leased to
any other Person; and each such lease is the legal, valid and binding obligation of the
lessor thereof, enforceable in accordance with its terms;




     (d) Bailee Locations. Schedule 3.03(d) of such Information Certificate sets
forth a complete and accurate list of each location (other than those identified on Schedule
3.03(b) or 3.03(c) of such Information Certificate) where the Borrower maintains any
Inventory or Equipment, if any, including, for each location (i) the name of the Person in
business at such location, (ii) its street address, (iii) a brief description of the type of
location (i.e., warehouse, bailee etc.) and (iv) the Borrower’s good faith estimate of the
current fair market value of the Inventory and Equipment at such location;




     (e) Equity Investments. Schedule 2.01 to such Information Certificate sets
forth all Equity Interests in any Person owned by the Borrower (other than any Equity
Interests maintained in a Securities Account identified on Schedule 2.03 to such Information
Certificate) and, with respect to such Equity Interests of any class, also indicates (i) the
authorized Equity Interests of such class, (ii) the aggregate outstanding Equity Interests
of such class, (iii) if such Person is a limited partnership or limited liability company,
whether such Equity Interests are securities under Article 8 of the applicable Uniform
Commercial Code, (iv) whether such Equity Interests are certificated



62









 







and (v) if such Equity Interests are issued by a CFC, whether such Equity Interests are
Excluded CFC Equity Interests.




     (f) Debt Investments. Schedule 2.02 to such Information Certificate sets forth
all Indebtedness for borrowed money (including obligations evidenced by bonds, debentures,
notes, loan agreements, or similar instruments) of any other Person (including any other
Subsidiary of the Borrower) payable or otherwise due to the Borrower,




     (g) Deposit Accounts; Securities Accounts. Schedule 2.03 to such Information
Certificate sets forth a list of all Deposit Accounts and Securities Accounts maintained by
the Borrower, including for each such account (a) the name and address of the depositary
institution or Securities Intermediary, as the case may be, (b) the type of account, and
(c) the account number;




     (h) Material Contracts. Schedules 4.01, 4.02 and 4.03 to such Information
Certificate set forth a description of each Agreement of the Borrower and its Restricted
Subsidiaries in respect of Indebtedness, the Transaction and certain joint venture
agreements with Affiliates of any Significant Equity Holder, each as more specifically
provided in such Information Certificate;




     (i) Motor Vehicles. Schedule 3.02(a) to such Information Certificate sets
forth for the Borrower a list of all titled vehicles (including any trailers and aircraft)
owned by the Borrower, if any, including: (i) the type and model of the vehicle, (ii) the
vehicle identification number; (iii) any Lien encumbering such vehicle; and (iv) the street
address where such vehicle is customarily located; and




     (j) Letters of Credit. Schedule 3.02(b) to such Information Certificate sets
forth for the Borrower a list of all letters of credit issued by any bank to the Borrower,
if any, including (i) the name of the issuing bank, (ii) the face amount thereof and
(iii) the expiration date.



          5.09 Environmental Compliance. The Borrower has reasonably concluded that 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 properties of the Borrower and its Restricted Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of the Borrower, including
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 by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.




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          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 therefor 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 Restricted Subsidiary that
would, if made, have a Material Adverse Effect. As of the Closing Date, neither the Borrower nor
any Restricted Subsidiary is party to any tax sharing agreement. As of the Closing Date, the
Transaction will not result in taxable income to the Borrower, or any of its Subsidiaries or, to
the extent the Borrower or any Restricted Subsidiary is jointly liable for any tax in respect of
such income, any of their Affiliates, for which the Borrower or any of its Restricted Subsidiaries
will have any material tax liability; provided, however, that if such tax liability
is less than $250,000,000 in aggregate after taking into account any tax indemnification or other
right of recovery in respect of such tax liability which is paid or payable to the Borrower or any
of its Restricted Subsidiaries from any party to the Transaction Documents (other than the Borrower
or any Subsidiary) then such liability shall not be material for these purposes. As of the Closing
Date, the Subsidiaries of the Borrower are an affiliated group (as defined in Section 1504 of the
Code) of which the Borrower is the Common Parent.




          5.12 ERISA Compliance. (a) Generally. 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. Except as 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. Except as could not reasonably be expected to result in a Material Adverse
Effect, the Borrower and each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Code and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.





     (b) No Claims. 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 reasonably be expected to have a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.




     (c) No ERISA Event, Unfunded Pension Liabilities, etc. In each case, except
with respect to the following clauses (ii) through (v) as could not reasonably be expected
to result in a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither



64









 







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 Section 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 Section 4069 or 4212(c) of ERISA.




     (d) Foreign Plans. With respect to each scheme or arrangement mandated by a
government other than the United States (a “Foreign Government Scheme or
Arrangement”) and with respect to each employee benefit plan maintained or contributed
to by the Borrower or any Subsidiary of the Borrower that is not subject to United States
law (a “Foreign Plan”), in each case, except as could not reasonably be expected to
result in a Material Adverse Effect.




     (i) any employer and employee contributions required by law or by the terms of
any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or,
if applicable, accrued, in accordance with normal accounting practices;




     (ii) the fair market value of the assets of each funded Foreign Plan, the
liability of each insurer for any Foreign Plan funded through insurance or the book
reserve established for any Foreign Plan, together with any accrued contributions,
is sufficient to procure or provide for the accrued benefit obligations, as of the
date hereof, with respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations most recently used to
account for such obligations in accordance with applicable generally accepted
accounting principles; and




     (iii) each Foreign Plan required to be registered has been registered and has
been maintained in good standing with applicable regulatory authorities.



          5.13 Subsidiaries; Ownership of Equity Interests. (a) As of the Applicable Certificate Date
for each Information Certificate:





     (i) set forth on Schedule 1.01 of such Information Certificate is a complete
and accurate list showing (as to the Borrower) (i) its exact legal name; (ii) its
type of organization; (iii) its jurisdiction of organization; (iv) each other
jurisdiction in which it is qualified to do business; and (iv) its organizational
identification number, if any, issued by its jurisdiction of organization;




     (ii) the Borrower has no direct or indirect Subsidiaries other than those
specifically disclosed in Schedule 1.02 of such Information Certificate, and all of
the outstanding Equity Interests in each such Subsidiary have been validly issued,
are fully paid and non-assessable and are owned by the Borrower or a Subsidiary



65









 







of the Borrower in the amounts specified in such Schedule free and clear of all
Liens except those created under this Agreement (or that are otherwise permitted
hereunder); and




     (iii) each of the Organization Documents of the Borrower and each amendment
thereto identified on Schedule 1.03 of such Information Certificate, a copy of which
has been delivered to the Administrative Agent pursuant to Section
4.01(a)(vi) or Section 6.12(a), is valid and in full force and effect.




     (b) As of the Closing Date immediately after giving effect to the Transactions, all of
the outstanding Equity Interests in the Borrower are owned by the Persons identified on
Schedule 1.02 of the Initial Information Certificate.



          5.14 Margin Regulations; Investment 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.





     (b) Neither the Borrower nor any Restricted Subsidiary is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.



          5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) 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) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
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, it being understood that such
projected financial information is subject to contingencies, many of which are beyond the
Borrower’s control, and that actual results during the period or periods covered by such projected
financial information may differ from the projected results set forth therein by a material amount.




          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 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.




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          5.17 Intellectual Property; Licenses, Etc. (a) The Borrower and each Restricted Subsidiary
owns, or possesses the right to use, the Trademarks, Copyrights, Patents, Licenses and other
Intellectual Property that are reasonably necessary for the operation of its businesses, except, in
each case, where the failure to own or possess the right to use such Trademarks, Copyrights,
Patents, Licenses or other Intellectual Property could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.





     (b) As of the Applicable Certificate Date for each Information Certificate, (i)
Schedule 3.01(a) to such Information Certificate sets forth all of the Borrower’s Patent
Licenses, Patents and applications therefor, (ii) Schedule 3.01(b) to such Information
Certificate sets forth all of the Borrower’s Trademark Licenses, registered Trademarks and
applications for such registrations, and (iii) Schedule 3.01(c) to such Information
Certificate sets forth all of the Borrower’s exclusive Copyright Licenses, registered
Copyrights and applications for such registrations.




     (c) To the best knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed by the Borrower or
any of its Restricted Subsidiaries infringes upon any rights held by any other Person,
except, in each case, where such infringement could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




     (d) 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.



          5.18 Solvency. The Borrower is, individually and together with its Subsidiaries on a
consolidated basis, Solvent.




          5.19 Labor Matters. There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any of its Restricted Subsidiaries as of the Closing Date
and neither the Borrower nor any Restricted Subsidiary has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five years.




          5.20 Collateral Matters. As of the Applicable Certificate Date of the Initial Information
Certificate and the Information Certificate most recently delivered pursuant to Section
6.02(g) prior to any Additional Term Facility Effective Date, (a) the representations and
warranties made by the Borrower in the applicable Information Certificate as of such date are true
and correct in all material respects, and (b) the provisions of this Agreement and the Collateral
Documents are effective to create in favor of the Administrative Agent for the benefit of the
Secured Parties a legal, valid and enforceable Lien (subject to Liens permitted by Section
7.01) on all right, title and interest of the Borrower in the Collateral described herein and
therein and, except as expressly provided in Section 5.03(a), no filing or other action
will be necessary to perfect or protect such Liens.




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ARTICLE VI

AFFIRMATIVE COVENANTS




          Until the Termination Date, the Borrower shall, and shall (except in the case of the covenants
set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each
Restricted Subsidiary to:




          6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail (x) reasonably satisfactory to the Administrative Agent and (y) that shall not have been
objected to by the Required Lenders, each of the following:





     (a) Annual Financials. As soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, 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 sheets 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.




     (b) Quarterly Financials. 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, 2007), 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, 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



68









 







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.




     (c) Annual Business Plan and Budget. As soon as available, but in any event not
later than 120 days after the end of each fiscal year of the Borrower, an annual business
plan and budget of the Borrower and its Subsidiaries on a consolidated basis, including
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 for any Facility 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 Section 6.01(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 Sections 6.01(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 (x) reasonably satisfactory to the Administrative Agent and (y) that shall not have
been objected to by the Required Lenders, each of the following:





     (a) Compliance Certificate. 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, 2007), a duly
completed Compliance Certificate signed by a Responsible Officer of the Borrower.




     (b) Business Acquisition Description. Concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b) and the related
Compliance Certificate pursuant to subsection (a) of this Section 6.02, if the
calculation of the Consolidated Borrower Leverage Ratio or Consolidated Restricted
Subsidiary Leverage Ratio for the applicable Measurement Period in such Compliance
Certificate includes the pro forma results of a Business Acquisition (other than in
connection with the Transaction) as contemplated by Section 1.04, a certificate of a
Responsible Officer of the Borrower briefly describing such Business Acquisition and
demonstrating in reasonable detail the manner in which the results of the business acquired
in such Business Acquisition have been included in such calculations.




     (c) Audit Reports, Management Letters and Recommendations. Promptly after any
request by the Administrative Agent or any Lender, 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 members of the Borrower by independent accountants
in connection with the accounts or books of the Borrower or any of its Restricted
Subsidiaries, or any audit of any of them.



69









 






     (d) Securities Filings. 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 or other report or communication sent to the members 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, or with any national
securities exchange, and in any case not otherwise required to be delivered to the
Administrative Agent pursuant hereto.




     (e) Material Indebtedness Agreement Reports. Promptly after the furnishing
thereof, copies of any statement or report furnished to any holder of debt securities of the
Borrower or of any of the Restricted Subsidiaries pursuant to the terms of any Material
Indebtedness 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) Designation of Unrestricted Subsidiary. 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 7.11,
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,
and (C) that, no Default has occurred and is continuing or has resulted by reason of such
Designation, including, pursuant to Section 7.11, together with a schedule
demonstrating in reasonable detail the calculations used to determine compliance with such
Sections.




     (g) Information Certificate. Concurrently with the delivery of the financial
statements referred to in Section 6.01(a), an Information Certificate duly completed
by the Borrower describing, among other things, in reasonable detail any additional
Collateral acquired by the Borrower since the date of the last Information Certificate
delivered to the Administrative Agent, such certificate to be signed by a Responsible
Officer of the Borrower and to be substantially in the form of Exhibit F.




     (h) Change in Tax Status. Promptly, at any time from time to time, if the
Borrower becomes part of an affiliated group (as defined in Section 1504 of the Code) of any
Common Parent for U.S. federal, state or local income tax purposes.



70









 





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




          Documents required to be delivered pursuant to Section 6.01(a) or (b), or
Section 6.02(e) 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
11.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein,
in every instance the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(c) to the Administrative Agent. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.




          The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers
will make available to the Lenders materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials
on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders (each a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market related activities
with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be distributed to
the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat such Borrower
Materials as not containing any material non-public information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 11.07); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;”



71









 






and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Investor.” Notwithstanding the foregoing, the Borrower shall
be under no Obligation to mark any Borrower Materials “PUBLIC”.




          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, 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 the occurrence of any Disposition of property or assets for which the Borrower
is required to make a mandatory prepayment pursuant to Section 2.04(b)(i).



          Each notice pursuant to 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 notice
pursuant to Section 6.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.




          6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable in
accordance with its customary practices, all its obligations and liabilities, including (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 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 Restricted 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



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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 under any Indebtedness of any Restricted Subsidiary permitted
hereunder such that on any day during the pendency of such contest on a pro forma basis the
applicable Restricted Subsidiary may make a borrowing in the amount of such contested obligation or
liability and no Default would result or (iii) 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 Section 7.04 or
7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses,
approvals and franchises in each case as 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 not Affiliates of the Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business and owning similar properties in localities where the Borrower or the applicable
Restricted Subsidiary operates, of such types and in such 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 such books of record and account in material
conformity with all applicable requirements of any Governmental Authority



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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 that 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; 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 (a) the Term B Borrowing to fund (in each case, as
part of the Transaction) (i) the Company Contribution, (ii) the Travel Media Contribution and (iii)
to pay fees and expenses incurred in connection with the Transaction and (b) an Additional Term
Facility as provided in the Credit Agreement Supplement establishing such Facility.




          6.12 Covenant to Give Security. Upon the acquisition of any of the following property by the
Borrower, if such property in the reasonable judgment of the Administration Agent, shall not
already be subject to a perfected security interest in favor of the Administrative Agent for the
benefit of the Secured Parties (or if any existing Collateral is moved to a new location as
provided below), then the Borrower shall, at the Borrower’s expense, take the following action
promptly (and, in any case, not later than the next Collateral Document Delivery Date):





     (a) Pledged Collateral. In the case of any Pledged Equity or Pledged Debt
acquired by the Borrower after the Closing Date:




     (i) Intercompany Notes. In the case of any Indebtedness for borrowed
money owed to the Borrower by any Subsidiary of the Borrower and evidenced by a duly
executed Intercompany Promissory Note, the Borrower shall deliver such Intercompany
Promissory Note to the Administrative Agent.




     (ii) Other Pledged Securities. The Borrower shall deliver or cause to
be delivered to the Administrative Agent any and all Pledged Securities representing
any such Pledged Equity or such Pledged Debt, as the case may be.




     (iii) Instruments of Transfer. Upon delivery to the Administrative
Agent, all Pledged Securities shall be accompanied by stock powers, bond powers or
other instruments of transfer reasonably satisfactory to the Administrative Agent
duly executed in blank by the Borrower.



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     (iv) Uncertificated Securities. In the case of any Pledged Equity that
constitutes an uncertificated security of a Subsidiary or Affiliate of the Borrower,
the Borrower will cause the issuer thereof to execute and deliver to the
Administrative Agent an Issuer Acknowledgement with respect to such Pledged Equity.




     (v) CFC Equity Interests. In the case of any Pledged Equity issued by
a CFC, the Borrower shall execute and deliver to the Administrative Agent a CFC
Pledge Agreement with respect to such Pledged Equity and shall comply with the
provisions of such CFC Pledge Agreement with respect to any certificates evidencing
such Pledged Equity. In the case of the conflict between the requirements of this
Agreement and the requirements of a CFC Pledge Agreement, the requirements of such
CFC Pledge Agreement shall control.




     (b) Deposit Accounts. In the case the Borrower shall open or otherwise
maintain a Deposit Account with a depositary bank other than Bank of America, the Borrower
shall execute and deliver to the Administrative Agent a counterpart of an Account Control
Agreement in respect of such Deposit Account and shall cause such depositary bank to execute
and deliver to the Administrative Agent a counterpart of such Account Control Agreement.




     (c) Securities Accounts. In the case of any Securities acquired by the
Borrower (other than any Pledged Collateral issued by a Subsidiary or Affiliate of the
Borrower), whether certificated or uncertificated, or other Investment Property is held by
the Borrower or its nominee through a Securities Intermediary, the Borrower shall cause such
Investment Property to be held in a securities account maintained with such Securities
Intermediary, the Borrower shall execute and deliver to the Administrative Agent a
counterpart of an Account Control Agreement in respect of such securities account and shall
cause such Securities Intermediary to execute and deliver to the Administrative Agent a
counterpart of such Account Control Agreement.




     (d) Instruments and Tangible Chattel Paper. In the case any amount payable
under any Collateral shall become evidenced by any promissory note or other Instrument, or
if the Borrower shall otherwise acquire any Instrument or Tangible Chattel Paper (in either
case, other than any Pledged Collateral) after the Closing Date, at the request of the
Administrative Agent, the Borrower shall promptly deliver the same to the Administrative
Agent accompanied by such instruments of transfer or assignment duly executed in blank by
the Borrower as the Administrative Agent may request.




     (e) Intellectual Property. In the case of any United States Patents, Patents
for which United States applications are pending, United States registered Trademarks,
Trademarks for which United States registration applications are pending, United States
registered Copyrights, and Copyrights for which United States registration applications are
pending, are created or acquired by the Borrower, the Borrower shall execute and deliver to
the Administrative Agent an Intellectual Property Security Agreement with respect to such
Intellectual Property or a supplement identifying such Intellectual



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Property to an existing Intellectual Property Security Agreement, in each case, in due
form for filing with the United States Patent and Trademark Office, the United States
Copyright Office or similar office of any other jurisdiction, as applicable.




     (f) Letter of Credit Rights. In the case the Borrower is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of the Borrower, the
Borrower shall promptly notify the Administrative Agent thereof and, at the written request
and option of the Administrative Agent, the Borrower shall, pursuant to an agreement in form
and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer
and any confirmer of such letter of credit to consent to an assignment to the Administrative
Agent of the proceeds of any drawing under such letter of credit with the Administrative
Agent agreeing that the proceeds of any drawing under such letter of credit are to be paid
to the Borrower unless an Event of Default has occurred and is continuing.




     (g) Further Assurances Generally. Promptly upon request by the Administrative
Agent, or any Lender through the Administrative Agent, (a) correct any material defect or
error that may be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register any and all such further acts, deeds, certificates,
assurances and other instruments as the Administrative Agent may reasonably require from
time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
(ii) to the fullest extent permitted by applicable law, subject the Borrower’s properties,
assets, rights or interests to the Liens now or hereafter intended to be covered by
Article X of this Agreement or any of the Collateral Documents, (iii) perfect and
maintain the validity, effectiveness and priority of Article X of this Agreement and
any of the Collateral Documents and any of the Liens intended to be created hereunder or
thereunder to the extent provided herein or therein and (iv) assure, convey, grant, assign,
transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan Document to
which the Borrower or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.



          6.13 Compliance with Environmental Laws. Except to the extent failure to do so could not
reasonably be expected to result in a Material Adverse Effect, comply, and cause all lessees and
other Persons operating or occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean
up all Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to
the extent that its obligation to do so is being contested in good faith



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and by proper proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.




          6.14 Interest Rate Hedging. Enter into prior to August 14, 2007, and maintain at all times
thereafter, interest rate Swap Contracts with Persons acceptable to the Administrative Agent, which
interest rate Swap Contracts, together with other Swap Contracts previously entered into by the
Borrower and its Restricted Subsidiaries, cover a notional amount of not less than 50% of the
aggregate outstanding Indebtedness for borrowed money (other than any such Indebtedness bearing a
fixed rate coupon) of the Borrower and its Restricted Subsidiaries, and providing for such Persons
to make payments thereunder for an initial period through at least May 14, 2010.




          6.15 Account Control Agreement. On or prior to the date that is 45 days after the Closing
Date (which may be extended by the Administrative Agent), deliver to the Administrative Agent an
executed Account Control Agreement with SunTrust Bank in form and substance reasonably satisfactory
to the Administrative Agent.




ARTICLE VII

NEGATIVE COVENANTS




          Until the Termination Date, 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) with respect to any Restricted Subsidiary, Liens existing on the date hereof and
listed on Schedule 5.01 of the Initial Information Certificate and any renewals or
extensions thereof;




     (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) with respect to any Restricted Subsidiary, 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;



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     (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) with respect to any Restricted Subsidiary, 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(i) or securing appeal or other surety bonds related to
such judgments;




     (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 (other than the Company) 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 (other than the Pledged Equity) or other
Investments in such Subsidiary or other Person;




     (j) with respect to any Restricted Subsidiary, 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 (in which case such promissory note
shall be pledged to the Administrative Agent for the benefit of the Secured Parties pursuant
to Section 6.12(a) and Article X) or a Restricted Subsidiary; and




     (k) with respect to any Restricted Subsidiary, Liens securing Indebtedness permitted
under Section 7.03(e).



          7.02 Investments. Make any Investments, except:





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



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     (b) (i) advances to officers, directors and employees of the Borrower and the
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
or the Restricted Subsidiaries approved by the shareholders of the Borrower or such
Restricted Subsidiary; and (ii) Investments elected by employees of the Borrower and the
Restricted Subsidiaries in respect of obligations of the Borrower and the Restricted
Subsidiaries to such employees under employee benefit plans;




     (c) Investments of the Borrower or any Restricted Subsidiary in any Restricted
Subsidiaries that are Wholly-Owned Subsidiaries;




     (d) Investments of the Borrower or any Restricted Subsidiary in Restricted Subsidiaries
that are not Wholly-Owned Subsidiaries or in Unrestricted Subsidiaries (including without
limitation a Designation of any existing Restricted Subsidiary as an Unrestricted
Subsidiary) or in any other Person; provided, however, that both immediately
before and after giving effect to such Investment, (i) no Default shall have occurred and be
continuing (including that if such Investment is not made in cash, pursuant to Section
7.05(f)) and (ii) the Consolidated Borrower Leverage Ratio, determined on a Pro Forma
Basis, does not exceed 5.00 to 1.0;




     (e) Investments of any Restricted Subsidiary in the Borrower;




     (f) with respect to any Restricted Subsidiary, 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




     (g) the Travel Media Contribution and the Animal Planet Contribution.



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





     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness of any Restricted Subsidiary outstanding on the date hereof and listed
on Schedule 4.01 to the Initial Information Certificate and any Refinancings
thereof; provided that the amount of such Indebtedness is not increased at the time
of such Refinancing 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) Indebtedness (other than Guarantees) of (x) a Restricted Subsidiary to another
Restricted Subsidiary or, subject to Section 6.12(a), to the Borrower and (y) of the
Borrower to a Restricted Subsidiary; provided, however, that both
immediately before



79









 







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 Restricted 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) with respect to any Restricted Subsidiary, purchase money Indebtedness, Capitalized
Leases, Synthetic Lease Obligations, Synthetic Debt and other secured Indebtedness (other
than any Indebtedness payable to the Borrower or to another Restricted Subsidiary);
provided, however, (i) that both immediately before and after giving effect
to such Indebtedness, no Default shall have occurred and be continuing, (ii) the
Consolidated Restricted Subsidiary Leverage Ratio determined on a Pro Forma Basis giving
effect to such Indebtedness is less than or equal to 4.50 to 1.0 and (iii) the sum of the
total aggregate amount of all such Indebtedness at any one time outstanding for all the
Restricted Subsidiaries shall not exceed 15% of Consolidated Total Assets;




     (f) other unsecured Indebtedness of Restricted Subsidiaries; provided,
however, that (i) both immediately before and after the incurrence of any such
Indebtedness no Default shall have occurred and been continuing and (ii) the Consolidated
Restricted Subsidiary Leverage Ratio determined on a Pro Forma Basis giving effect to such
Indebtedness is less than or equal to 4.50 to 1.0; and




     (g) additional unsecured Indebtedness of the Borrower; provided,
however, that (i) the maturity date of such indebtedness shall occur at least six
months after the then latest Maturity Date of any Facility and (ii) both immediately before
and after the incurrence of any such Indebtedness, no Default shall have occurred and be
continuing; and




     (h) Indebtedness of the type described in clause (g) of the definition thereof (i)
outstanding on the date hereof and listed on Schedule 4.01 to the Initial
Information Certificate and (ii) incurred after the Closing Date; provided, that
such Indebtedness incurred after the Closing Date shall be listed on Schedule 4.01 of the
next Information Certificate delivered pursuant to Section 6.02(g).



          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:




80









 









     (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 except (other than to the extent permitted by clause (i)
below) the Company (for these purposes, the “Subject Restricted Subsidiary”) may
merge, liquidate, consolidate with or into:




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




     (ii) any other 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));




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




     (2) 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;



81









 






     (c) Dispositions of equipment or real property in either case in the ordinary course of
business of such Restricted Subsidiary 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 the Borrower (other than Dispositions of any Pledged
Equity) or 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(a), (b)(i), (b)(ii)
or (b)(iii); provided, that any merger, liquidation or consolidation
permitted pursuant to Section 7.04(b)(iii) shall only constitute a permitted
Disposition pursuant to this clause (e) if a wholly-owned Restricted Subsidiary shall be the
continuing or surviving Person after giving effect to such merger, liquidation or
consolidation;




     (f) Dispositions by the Borrower and its Restricted Subsidiaries to any other Person
not otherwise permitted under this Section 7.05 (including, without limitation,
(A) Dispositions to a Restricted Subsidiary that is not a Wholly-Owned Subsidiary of the
Borrower and Dispositions in the form of Investments in such Restricted Subsidiaries and
other Investments in Persons (other than a Restricted Subsidiary) otherwise permitted by
Section 7.02, (B) Dispositions pursuant to Section 7.04(b)(iii) to the
extent a wholly-owned Restricted Subsidiary shall not be the continuing or surviving Person
after giving effect to such Disposition, (C) Restricted Payments that are deemed
Dispositions under Section 7.06(a)(ii)(B), (D) non-cash Restricted Payments
permitted by Section 7.06(e) and (E) any Designation of a Restricted Subsidiary as
an Unrestricted Subsidiary otherwise permitted by Section 7.11); provided
that (i) at the time of such Disposition, no Default shall exist or, as determined on a Pro
Forma Basis, would result from such Disposition and (ii) the aggregate book value of all
property Disposed of (or deemed Disposed of) in reliance on this Section 7.05(f) 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 such Disposition
shall be deemed to be a 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;



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     (g) Restricted Payments paid in cash permitted under Section 7.06(a) or
(e);




     (h) Restricted Payments involving the purchase, redemption, retirement or acquisition
of Equity Interests of Restricted Subsidiaries owned by a Joint Venture Party where after
giving effect to such transaction the aggregate percentage of the outstanding Equity
Interests of such Restricted Subsidiary owned by the Borrower and its Restricted
Subsidiaries is correspondingly increased; and




     (i) The Selling Equity Holder Distribution.



          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), (A) in the
case of any such Restricted Payment 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 percentage of the outstanding Equity Interests of the Subject Restricted
Subsidiary owned by the Borrower and its Restricted Subsidiaries is correspondingly
increased, (x) no Default shall have occurred and be continuing and (y) the Consolidated
Borrower Leverage Ratio, determined on a Pro Forma Basis, shall not exceed 5.00 to 1.0 (and
if made in securities or other property, any such Restricted Payment shall be deemed not to
constitute a Disposition for purposes of Section 7.05), and (B) in the case of any
other such Restricted Payment, (x) no Default shall have occurred and be continuing, (y) the
Consolidated Borrower Leverage Ratio, determined on a Pro Forma Basis, shall not exceed 5.00
to 1.0, and (z) if such Restricted Payment is not paid in cash, such Disposition otherwise
shall be permitted by Section 7.05(f);




     (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;




     (c) the Borrower may make the Selling Equity Holder Distribution;




     (d) at any time after the Borrower becomes part of an affiliated group (as defined in
Section 1504 of the Code) of a Common Parent for U.S. federal, state or local



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income tax purposes, the Borrower may make Restricted Payments to such Common Parent in
amounts equal to Related Taxes; and




     (e) the Borrower may declare or pay other dividends (whether in cash, securities or
other property) to its stockholders and purchase, redeem or otherwise acquire Equity
Interests issued by it (for cash, securities or other property) so long as (i) immediately
before and after giving effect to such declaration or payment, no Default shall have
occurred and be continuing, (ii) the Consolidated Borrower Leverage Ratio, determined on a
Pro Forma Basis, does not exceed 5.00 to 1.0 and (iii) if such dividend, purchase,
redemption or other acquisition is not paid in cash by the Borrower, such Disposition is
otherwise permitted by Section 7.05(f).



          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 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 Equity Holder or an
Affiliate of a Significant Equity Holder, 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 and such agreement has been identified to the
Lenders pursuant to Section 4.03 of any Information Certificate or by written notice to the
Administrative Agent, (b) transactions between or among the Borrower and any of its other
Restricted Subsidiaries or between and among any such other Restricted Subsidiaries, (c) Guarantees
by a Restricted Subsidiary of Indebtedness of any Affiliate of the Borrower; provided,
however, that any such Guarantee is otherwise permitted hereunder, (d) Restricted Payments
made by the Borrower otherwise permitted under Section 7.06, (e) transactions pursuant to
any tax sharing agreements with any Affiliate of the Borrower so long as (i) the Borrower’s or any
Restricted Subsidiary’s material payment obligations under such tax sharing agreement would be
permitted by Section 7.06(a) or (d), as applicable (if such payment were deemed to
be a Restricted Payment) and (ii) (x) the Administrative Agent shall have agreed (such agreement
not to be unreasonably withheld or delayed) in writing that the other terms and conditions of such
tax sharing agreement are reasonably acceptable to the Administrative Agent and (y) the Required
Lenders shall not have objected to the other terms and conditions of



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such tax sharing agreement and (f) the Selling Equity Holder Distribution and other
transactions pursuant to the Transaction Documents.




          7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that limits the ability (a) of any Restricted Subsidiary to make
Restricted Payments to the Borrower or any other Restricted Subsidiary or to otherwise transfer
property to the Borrower, (b) of any Restricted Subsidiary to Guarantee the Obligations, or (c) of
the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person to secure the Obligations of such Person; provided,
however, that this clause (c) shall not prohibit any negative pledge incurred or provided
in favor of any holder of Indebtedness permitted under Section 7.03(e) solely to the extent
any such negative pledge relates to the property financed by or the subject of any Lien securing
such Indebtedness; provided, further, that in the case of any Restricted Subsidiary
which is a joint venture between any 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 (i) to make
Restricted Payments to, (ii) Guaranty the Indebtedness of, or (iii) 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 Section 7.09 shall not prohibit
any such Contractual Obligation; and provided, further, that no 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.




          7.10 Use of Proceeds. Use the proceeds of any Borrowing, 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) immediately before and after giving effect to such Designation, as determined on a
Pro Forma Basis, (A) no Default shall have occurred and be continuing or would result from
such Designation, including, without limitation, pursuant Section 7.05(f) or
Section 7.11(c), (B) the Consolidated Restricted Subsidiary Leverage Ratio
determined on a Pro Forma Basis giving effect to such Designation is less than or equal to
4.50 to 1.0 and (C) if the Consolidated Operating Cash Flow of all Unrestricted Subsidiaries
for the Measurement Period then most recently ended would be a negative amount, such amount
(expressed as a positive number) does not exceed 50% of the



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Consolidated Operating Cash Flow of the Borrower and its Restricted Subsidiaries for
such Measurement Period.




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




     (i) at least 50% of the Voting Interests of such Unrestricted Subsidiary are owned
directly by the Borrower or a Restricted Subsidiary;




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




     (iii) the Consolidated Restricted Subsidiary Leverage Ratio determined on a Pro
Forma Basis giving effect to such Designation is less than or equal to 4.50 to 1.0.




     (c) Permit (i) the sum of (A) Consolidated Operating Cash Flow of the Borrower and its
Restricted Subsidiaries for any Measurement Period and (B) the Unrestricted Subsidiary
Operating Cash Flow of each Unrestricted Subsidiary the primary business of which is of a
Target Business for such Measurement Period to be less than (ii) the combined Unrestricted
Subsidiary Operating Cash Flow of all Unrestricted Subsidiaries the primary business of
which is not a Target Business for such period.



          7.12 Consolidated Borrower Leverage Ratio. Permit the Consolidated Borrower Leverage Ratio at
any time to be greater than 6.00 to 1.0.




          7.13 Amendments of Organization Documents. In the case of the Borrower, the Company or any
other issuer of any Pledged Equity, amend any of its Organization Documents, except (a) pursuant to
a transaction permitted by Section 7.04 or (b) on not less than 30 days prior written
notice to the Administrative Agent (or such shorter period as the Administrative Agent may
reasonably agree), the Borrower or any Restricted Subsidiary may change its legal name or otherwise
modify its Organization Documents in any other manner which could not reasonably be expected to
have a Material Adverse Effect; and provided, further, that any such notice shall
include a copy of any such proposed amendment or modification.




          7.14 Accounting Changes. Make any change in (a) accounting policies or reporting practices,
except as required by GAAP, or (b) the fiscal year of the Borrower.




          7.15 Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness incurred pursuant to Section 7.03(g).




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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, any amount of principal of any Loan, or (ii) within three days after the same
becomes due, any interest on any Loan 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. (i) The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01(a) or (b),
6.02(a), (b), (e), (f) or (g), 6.03,
6.05, 6.10, 6.11, 6.12 or Article VII; or,




     (c) Other Defaults. The Borrower fails to perform or observe any other
covenant or agreement (not specified in Section 8.01(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 of Borrower. (i) The Borrower (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 and
Indebtedness under Swap Contracts) 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 $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



87









 







defined in such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Borrower is the Defaulting Party (as defined in such Swap Contract)
or (B) any Termination Event (as so defined) under such Swap Contract as to which the
Borrower is an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Borrower 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) Cross-Default of Restricted Subsidiary. (i) The Company or any other
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 under Swap Contracts) 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 $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; provided,
however, that none of the foregoing shall constitute an Event of Default hereunder
unless such default or failure shall continue until the earlier of (1) the date that is 60
days after such default or failure occurred and any grace period with respect thereto has
expired and (2) the date the holders or beneficiaries of such Indebtedness give notice of or
otherwise cause such Indebtedness to become due or be repurchased, prepaid, defeased or
redeemed prior to its stated maturity); 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 Company is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract
as to which any other Restricted Subsidiary is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by any 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 60 days following such Early Termination
Date; or



88









 






     (g) 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




     (h) 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




     (i) 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 is rated at least “A” by A.M. Best Company, has been
notified of the potential claim and does not dispute coverage), or (ii) any one or more
non-monetary 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




     (j) 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,
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




     (k) Invalidity of Loan Documents. Any provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or the Borrower or any of its Subsidiaries 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 provision of



89









 







any Loan Document, or purports to revoke, terminate or rescind any provision of any
Loan Document; or




     (l) Change of Control. There occurs any Change of Control; or




     (m) Collateral Documents. Article X of this Agreement or any
Collateral Document after delivery thereof pursuant to Section 4.01 or 6.12
shall for any reason (other than pursuant to the terms hereof or thereof) cease to create a
valid and perfected Lien to the extent provided therein (subject only to Liens permitted by
Section 7.01) on the Collateral purported to be covered hereby or thereby.



          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 commitment of each Lender to make Loans 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; and




     (c) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents (including, without limitation, pursuant to
Article X);


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 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 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) or in
Article X, any amounts received on account of the Obligations (including any amounts
received in respect of the Collateral) 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 and fees,
expenses, disbursements and other amounts incurred by the Administrative Agent in connection
with the preservation, maintenance or exercise of remedies in respect of the Collateral
pursuant to Article X) payable to the Administrative Agent in its capacity as such;



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




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




     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and amounts owing under Secured Hedge Agreements and Secured Cash
Management Agreements, ratably among the Lenders the Hedge Banks and the Cash Management
Banks in proportion to the respective amounts described in this clause Fourth held
by them; and




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



ARTICLE IX

ADMINISTRATIVE AGENT




          9.01 Appointment and Authority. (a) Each of the Lenders 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 other Agents and the Lenders,
and the Borrower shall not have rights as a third party beneficiary of any of such provisions.





     (b) The Administrative Agent shall also act as the “collateral agent” under the
Loan Documents, and each of the Lenders (in its capacities as a Lender (if applicable),
potential Hedge Bank and potential Cash Management Bank) hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by the Borrower to
secure any of the Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and
any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent
pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof) granted under Article X of this Agreement and
the Collateral Documents, or for exercising any rights and remedies thereunder at the
direction of the Administrative Agent), shall be entitled to the benefits of all provisions
of this Article IX and Article XI (including Section 11.04(c), as
though such co-agents, sub-



91









 







agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as
if set forth in full herein with respect thereto.



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




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





     (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 11.01 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 or a Lender.




          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



92









 






other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or the creation, perfection or priority of any Lien
purported to be created by Article X of this Agreement or the Collateral Documents, (v)
the value or the sufficiency of any Collateral, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.




          9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled
to the satisfaction of a Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan. 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 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 appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify



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the Borrower and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders 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 (b) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
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 11.04 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.




          9.07 Non-Reliance on Administrative Agent, any other Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent, any
other 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 also acknowledges that it will, independently and without reliance
upon the Administrative Agent, any other 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 Lead
Arrangers or other Agents 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 or as a Lender hereunder.




          9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of any Loan 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





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     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans 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 and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.03(i) and (j), 2.07 and
11.04) allowed in such judicial proceeding; and




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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders, 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 2.07 and
11.04.




          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 any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding.




          9.10 Collateral Matters. The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon the Termination Date, (ii) that is sold or to
be sold as part of or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) if approved, authorized or ratified in writing in accordance with Section
11.01; and




          Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release its interest in particular types or items
of property pursuant to this Section 9.10. In each case as specified in this Section
9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the
Borrower such documents as the Borrower may reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted under Article X of this
Agreement and the Collateral Documents in accordance with the terms of the Loan Documents and this
Section 9.10.





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ARTICLE X

SECURITY INTERESTS




          10.01 Security Interest. The Borrower hereby pledges and grants to the Administrative Agent,
its successors and assigns, for the ratable benefit of the Secured Parties, as
security for the payment or performance in full of the Obligations, a security interest (the
“Security Interest”) in all right, title and interest of the Borrower in, to and under any
and all of the following assets and properties now owned or at any time hereafter acquired by the
Borrower or in which such the Borrower now has or at any time in the future may acquire any right,
title or interest (collectively, the “Collateral”):





     (a) all Accounts;




     (b) all Chattel Paper;




     (c) all cash and Deposit Accounts;




     (d) all Documents;




     (e) all Equipment, including all Fixtures;




     (f) all General Intangibles;




     (g) all Instruments;




     (h) all Inventory;




     (i) all Investment Property;




     (j) all Pledged Collateral;




     (k) all Supporting Obligations;




     (l) all Commercial Tort Claims of the Borrower described in Schedule 6.01 to each
Information Certificate (as such schedule may be supplemented from time to time pursuant to
any subsequent Information Certificate or otherwise);




     (m) all other Goods;




     (n) all books and records pertaining to the Collateral;




     (o) all other assets, properties and rights of every kind and description and interests
therein, including all moneys, securities and other property, now or hereafter held or
received by or on behalf of the Borrower; and




     (p) all Proceeds of any and all of the foregoing;



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provided, however, that notwithstanding anything to the contrary in clauses (a)
through (p) above:




     (i) any General Intangible, Chattel Paper, Instrument, License or Account which
by its terms prohibits the creation of a security interest therein
(whether by assignment or otherwise) shall be excluded from the Lien of the
Security Interest granted under this Section 10.01, and shall not be
included in the Collateral of the Borrower, except to the extent that Sections
9-406(d), 9-407(a) or 9-408(a) of the UCC are effective to render any such
prohibition ineffective;




     (ii) if any General Intangible, Chattel Paper, Instrument, License or Account
included in the Collateral contains any term that (A) requires that any Person
(other than the Borrower) obligated thereon consent to any exercise of remedies
hereunder in respect of the Security Interest therein granted under this Section
10.01 or (B) otherwise restricts the ability of any such Person (other than the
Borrower) to so consent, then the enforcement of such Security Interest under this
Agreement shall be subject to Section 10.10(c) (but such provision shall not
limit the creation, attachment or perfection of the Security Interest hereunder);




     (iii) any permit, lease, license or franchise (including any so identified on
Schedule 6.02 of an Information Certificate) shall be excluded from the Lien of the
Security Interest granted under this Section 10.01, and shall not be
included in the Collateral, to the extent any Law applicable thereto prohibits the
creation of the Security Interest therein; provided, however, if
such Law requires the consent of any Governmental Authority to any Lien on any such
permit, license or franchise, the Borrower shall use commercially reasonable efforts
to obtain such consent;




     (iv) any Equipment (including any Software incorporated therein) owned by the
Borrower on the date hereof or hereafter acquired that is subject to a Lien securing
a purchase money obligation or Capitalized Lease permitted to be incurred pursuant
to the provisions of the Credit Agreement shall be excluded from the Lien of the
Security Interest granted under this Section 10.01, and shall not be
included in the Collateral, to the extent that the contract or other agreement in
which such Lien is granted (or the documentation providing for such purchase money
obligation or Capitalized Lease) validly prohibits the creation of any other Lien on
such Collateral;




     (v) any Excluded CFC Equity Interests shall not be included in the Collateral;
and




     (vi) any Equity Interests in Travel Media shall not be included in the
Collateral.




     The property described in clauses (i) through (vi) above is referred to
in this Agreement as “Excluded Property”. With respect to property described in
clauses (i), (iii)



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and (iv) above to the extent not included in the
Collateral of the Borrower, such property shall constitute Excluded Property only to the
extent and for so long as the creation of a Lien on such property in favor of the
Administrative Agent is, and remains, validly prohibited, and upon termination of such
prohibition (however occurring), such property shall cease to constitute Excluded Property.
The Borrower may be required from time to
time at the request of the Administrative Agent to give written notice to the
Administrative Agent identifying in reasonable detail the Excluded Property (and certifying
that such property constitutes Excluded Property) and to provide the Administrative Agent
with such other information regarding the Excluded Property as the Administrative Agent may
reasonable request.



          10.02 Pledged Collateral. The Collateral pledged by the Borrower under this Agreement shall
include all of the Borrower’s right, title and interest in, to and under the following Equity
Interests and Indebtedness now owned or hereafter acquired by the Borrower (collectively, the
“Pledged Collateral”):





     (a) (i) the shares of capital stock, membership interests, limited partnership
interests and other Equity Interests in the Company and any other Person directly owned by
the Borrower on the Closing Date and listed opposite the name of the Borrower on Schedule
2.01 to the Initial Information Certificate, (ii) any other Equity Interests of any Person
obtained in the future by the Borrower and identified on Schedule 2.01 to any subsequent
Information Certificate (or other supplement thereto), and (iii) the certificates
representing all such Equity Interests (collectively, the “Pledged Equity”);
provided, however, that the Pledged Equity of the Borrower shall exclude (A)
Equity Interests of any CFC owned directly by the Borrower that constitute more than 65% of
the aggregate issued and outstanding Voting Interests of each such CFC (the excluded Equity
Interests of such CFC being referred to as “Excluded CFC Equity Interests”) or (B)
any Equity Interest evidenced by any Securities or Security Entitlement that is maintained
in a Securities Account that is either (1) maintained with the Administrative Agent or (2)
maintained with any other Securities Intermediary; provided that, to the extent
required by Section 4.01(a)(iv)(C) or Section 6.12(c) or as otherwise
requested by the Administrative Agent in accordance with Section 6.12(g), any such
other Securities Intermediary shall have entered into a Account Control Agreement with the
Administrative Agent with respect to such Securities Account;




     (b) (i) the promissory notes (including Intercompany Promissory Notes), other
Instruments and debt securities of any other Person owned by the Borrower on the Closing
Date and the loans and advances for money borrowed made by the Borrower to any other Person
which are outstanding on the Closing Date, in each case, which are listed opposite the name
of the Borrower on Schedule 2.02 to the Initial Information Certificate, (ii) any promissory
notes (including Intercompany Promissory Notes), other Instruments, debt securities, and
loans or advances for money borrowed in the future issued to or owed to the Borrower by any
other Person and identified on Schedule 2.02 to any subsequent Information Certificate (or
other supplement thereto), and (iii) the promissory notes (including, Intercompany
Promissory Notes) and any other Instruments



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as may hereafter be issued to evidence such
loans or advances for money borrowed (collectively, the “Pledged Debt”);




     (c) subject to Section 10.03, all payments of principal or interest, dividends,
cash, Instruments and other property from time to time received, receivable or otherwise
distributed in respect of, in exchange for or upon the conversion of the items referred
to in clauses (a) and (b) above;




     (d) subject to Section 10.03, all rights and privileges of the Borrower with
respect to the securities, instruments and other property referred to in clauses (a), (b)
and (c) above; and




     (e) all Proceeds of any of the foregoing.



          10.03 Voting Rights; Dividends and Interest, etc. (a) Unless and until a Designated Event of
Default shall have occurred and be continuing:





          (i) The Borrower shall be entitled to exercise any and all voting and/or other
consensual rights and powers inuring to an owner of Pledged Collateral or any part
thereof for any purpose consistent with the terms of this Agreement and the other
Loan Documents; provided that such rights and powers shall not be exercised
in any manner that could reasonably be expected to have a Material Adverse Effect.




          (ii) The Administrative Agent shall be deemed without further action or
formality to have granted to the Borrower all necessary consents relating to voting
rights and shall, if necessary, upon written request of the Borrower and at the sole
cost and expense of the Borrower, from time to time execute and deliver (or cause to
be executed and delivered) to the Borrower all such instruments as the Borrower may
reasonably request in order to permit the Borrower to exercise the voting and other
rights which it is entitled to exercise pursuant to subparagraph (i) above.




          (iii) The Borrower shall be entitled to receive, retain, and to utilize free
and clear of any Lien hereof, any and all dividends, interest, principal and other
distributions paid on or distributed in respect of the Pledged Collateral, but only
if and to the extent that such dividends, interest, principal and other
distributions are not otherwise prohibited by the terms and conditions of this
Agreement, the other Loan Documents and applicable Laws; provided that any
noncash dividends, interest, principal or other distributions that would constitute
Pledged Equity or Pledged Debt, whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer of any Pledged
Equity or received in exchange for any Pledged Debt or any part thereof, or in
redemption thereof, or as a result of any merger, consolidation, acquisition or
other exchange of assets to which such issuer may be a party or otherwise, shall be
and become part of the Pledged Collateral, and, if received by the Borrower,



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shall not be commingled by the Borrower with any of its other funds or property but shall
be held separate and apart therefrom, shall be held in trust for the benefit of the
Administrative Agent and shall be forthwith delivered to the Administrative Agent as
Pledged Collateral in the same form as so received (with any necessary endorsement).




     (b) Upon the occurrence and during the continuance of a Designated Event of Default,
all rights of the Borrower to dividends, interest, principal or other distributions that the
Borrower is authorized to receive pursuant to Section 10.03(a)(iii) shall cease, and
all such rights shall thereupon become vested in the Administrative Agent, which shall have
the sole and exclusive right and authority to receive and retain such dividends, interest,
principal or other distributions. All dividends, interest, principal or other distributions
received by the Borrower contrary to the provisions of this Section 10.03(b) shall
be held in trust for the benefit of the Administrative Agent, shall be segregated from other
property or funds of the Borrower and shall be forthwith delivered to the Administrative
Agent in the same form as so received (with any necessary endorsement). Any and all money
and other property paid over to or received by the Administrative Agent pursuant to the
provisions of this Section 10.03(b) shall be retained by the Administrative Agent in
an account to be established by the Administrative Agent upon receipt of such money or other
property and shall be applied in accordance with the provisions of Section 8.03.




     (c) Upon the occurrence and during the continuance of a Designated Event of Default,
all rights of the Borrower to exercise the voting and consensual rights and powers it is
entitled to exercise pursuant to Section 10.03(a)(i), and the obligations of the
Administrative Agent under Section 10.03(a)(ii), shall cease, and all such rights
shall thereupon become vested in the Administrative Agent, which shall have the sole and
exclusive right and authority to exercise such voting and consensual rights and powers. If
after the occurrence of a Designated Event of Default, such Event of Default shall have been
waived pursuant to Section 11.01, the Borrower will again have the right to exercise
the voting and consensual rights and powers that the Borrower would otherwise be entitled to
exercise pursuant to the terms of Section 10.03(a)(i).



          10.04 Registration in Nominee Name; Denominations. The Administrative Agent, on behalf of the
Secured Parties, shall have the right to hold as collateral the Pledged Collateral endorsed or
assigned in blank. After the occurrence and during the continuance of an Event of Default, the
Administrative Agent, on behalf of the Secured Parties, shall also have the right (in its sole and
absolute discretion), to hold the Pledged Collateral in its own name as pledgee, the name of its
nominee (as pledgee or as sub-agent) or the name of the Borrower. At the request of the
Administrative Agent, the Borrower will promptly give to the Administrative Agent copies of any
notices or other communications received by it with respect to Pledged Securities registered in the
name of the Borrower. The Administrative Agent shall at all times have the right to exchange the
certificates or instruments (to the extent permitted by the terms thereof) representing Pledged
Securities for certificates or instruments of smaller or larger denominations for any purpose
consistent with this Agreement.




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          10.05 Filing Authorization. (a) The Borrower hereby irrevocably authorizes the
Administrative Agent at any time and from time to time to file in any relevant jurisdiction any
initial financing statements (including fixture filings) with respect to the Collateral or any part
thereof and amendments thereto that contain the information required by Article 9 of the UCC of
each applicable jurisdiction for the filing of any financing statement or amendment,
including (i) if the Borrower is an organization, the type of organization and any
organizational identification number issued to the Borrower, (ii) in the case of a financing
statement filed as a fixture filing, a sufficient description of the real property to which such
Collateral relates and (iii) a description of collateral that describes such property in any other
manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the
perfection of the security interest in the Collateral granted to the Administrative Agent,
including describing such property as “all assets” or “all personal property.” The Borrower agrees
to provide such information to the Administrative Agent promptly upon request.





     (b) The Borrower also ratifies its authorization for the Administrative Agent to file
in any relevant jurisdiction any such initial financing statements or amendments thereto if
filed prior to the date hereof.




     (c) The Administrative Agent is further authorized to file with the United States
Patent and Trademark Office or United States Copyright Office (or any successor office or
any similar office in any other country) Intellectual Property Security Agreements or such
other documents as may be necessary or advisable for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by the Borrower, and
naming the Borrower, as debtor, and the Administrative Agent, as secured party.



          10.06 Continuing Security Interest; Transfer of Loans. This Agreement to the extent provided
herein shall create a continuing security interest in the Collateral of the Borrower and shall
remain in full force and effect until the Termination Date, be binding upon the Borrower, its
successors, transferees and assigns, and inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent and each other Secured
Party. Without limiting the generality of the foregoing, any Secured Party may assign or otherwise
transfer (in whole or in part) any Commitment or Loan or other Obligation held by it to any other
Person, and such other Person shall thereupon become vested with all the rights and benefits in
respect thereof granted to such Lender under any Loan Document (including this Agreement) or
otherwise, subject, however, to any contrary provisions in such assignment or transfer, and to the
provisions of Section 11.06 and Article IX.




          10.07 Borrower Remains Liable.





     (a) Subject to the terms of the Loan Documents,




          (i) the Borrower shall remain liable under the contracts and agreements
included in the Collateral (including all Contractual Obligations) to the extent set
forth therein, and shall perform all of its duties and obligations



101









 







under such contracts and agreements to the same extent as if this Agreement had not been
executed, and




          (ii) the Borrower will comply in all material respects with all Laws relating
to the ownership and operation of the Collateral, including all registration
requirements under applicable Laws, and shall pay when due all taxes, fees and
assessments imposed on or with respect to the Collateral, except to the extent
the validity thereof is being contested in good faith by appropriate proceedings for
which adequate reserves in accordance with GAAP have been set aside by the Borrower.




     (b) Anything herein to the contrary notwithstanding,




          (i) the exercise by the Administrative Agent of any of its rights hereunder
shall not release the Borrower from any of its duties or obligations under any such
contracts or agreements included in the Collateral, and




          (ii) neither the Administrative Agent nor any other Secured Party shall have
any obligation or liability under any such contracts or agreements included in the
Collateral by reason of this Agreement, nor shall the Administrative Agent or any
other Secured Party be obligated to perform any of the obligations or duties of the
Borrower thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.



          10.08 Security Interest Absolute. All rights of the Administrative Agent and the security
interests granted to the Administrative Agent hereunder, and all obligations of the Borrower
hereunder, to the fullest extent permitted by applicable Law, shall be absolute and unconditional,
irrespective of any of the following conditions, occurrences or events:





     (a) any lack of validity or enforceability of any Loan Document;




     (b) the failure of any Secured Party to assert any claim or demand or to enforce any
right or remedy against, the Borrower, any of its Subsidiaries or any other Person under the
provisions of any Loan Document or otherwise or to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligation;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations or any other extension, compromise or renewal of any Obligation,
including any increase in the Obligations resulting from the extension of additional credit
to the Borrower or any other obligor or otherwise;




     (d) any reduction, limitation, impairment or termination of any Obligation for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Borrower hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the



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invalidity, illegality, non-genuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Obligation or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
departure from, any of the terms of any Loan Document;




     (f) any addition, exchange, release, surrender or non-perfection of any collateral
(including the Collateral), or any amendment to or waiver or release of or addition to or
consent to departure from any guaranty, for any of the Obligations; or




     (g) any other circumstances which might otherwise constitute a defense available to, or
a legal or equitable discharge of, Borrower or otherwise.



          10.09 Release; Termination.





     (a) Upon any sale, transfer or other disposition of any item of Collateral by the
Borrower in accordance with Section 7.05, the Administrative Agent will, at the
Borrower’s expense and without any representations, warranties or recourse of any kind
whatsoever, execute and deliver to the Borrower such documents as the Borrower shall
reasonably request pursuant to Section 10.09(c) below to evidence the release of
such item of Collateral from the assignment and security interest granted hereby.




     (b) Upon the Termination Date, the pledge, assignment and security interest granted by
the Borrower hereunder shall terminate and all rights to the Collateral shall revert to the
Borrower. Upon any such termination, the Administrative Agent will, at the Borrower’s
expense and without any representations, warranties or recourse of any kind whatsoever,
execute and deliver to the Borrower such documents as the Borrower shall reasonably request
pursuant to Section 10.09(c) to evidence such termination and deliver to the
Borrower all Pledged Securities, Instruments, Tangible Chattel Paper and negotiable
documents representing or evidencing the Collateral then held by the Administrative Agent.




     (c) At the written request of the Borrower pursuant to Section 10.09(a) or
(b) above, the Administrative Agent will, at the Borrower’s expense and without any
representations, warranties or recourse of any kind whatsoever (except as to the release of
the Security Interest), execute and deliver to the Borrower such release documents as the
Borrower shall reasonably request; provided, however, that in the case of any such
requested release under Section 10.09(a) (i) at the time of such request and such
release no Default shall have occurred and be continuing, (ii) the Borrower shall have
delivered to the Administrative Agent, at least five (5) Business Days (or such shorter
period agreed to by the Administrative Agent) prior to the date of the proposed release, a
written request for release describing the item of Collateral and the terms of the sale,
lease, transfer or other disposition in reasonable detail, including the price thereof and
any expenses in connection therewith, together with a form of release for execution by the
Administrative Agent (which release shall be in form and substance satisfactory to the
Administrative Agent) and a certificate of the Borrower to the effect that the transaction



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is in compliance with the Loan Documents and as to such other matters as the Administrative
Agent (or the Required Lenders through the Administrative Agent) may reasonably request and
(iii) the proceeds of any such sale, lease, transfer or other disposition required to be
applied, or any payment to be made in connection therewith, in accordance with Section
2.04 shall, to the extent so required, be paid or made to, or in
accordance with the instructions of, the Administrative Agent when and as required
under Section 2.04.



          10.10 Remedies upon Default. (a) Upon the occurrence and during the continuance of an Event
of Default, subject to the mandatory requirements of applicable Law, the Borrower agrees to deliver
all or any item of Collateral to the Administrative Agent on demand, and it is agreed that the
Administrative Agent shall have the right to take any of or all the following actions at the same
or different times: (i) with respect to any Collateral consisting of Intellectual Property,
subject to pre-existing rights and licenses, on demand, to cause the Security Interest to become an
assignment, transfer and conveyance of any of or all such Collateral by the Borrower to the
Administrative Agent (except to the extent an assignment, transfer or conveyance thereof would
result in a loss of said Intellectual Property), or to license or sublicense, whether general,
special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral
throughout the world on such terms and conditions and in such manner as the Administrative Agent
shall determine (other than in violation of any then-existing licensing arrangements to the extent
that waivers cannot be obtained); (ii) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Collateral and without liability for
trespass to enter any premises where the Collateral may be located for the purpose of taking
possession of or removing the Collateral; (iii) enforce compliance with and take any and all action
with respect to the Pledged Collateral and other Collateral to the fullest extent as though the
Administrative Agent were the absolute owner thereof, including the right to receive distributions
and other payments with respect to the Pledged Collateral and the other Collateral; and (iv)
generally with respect to all Collateral, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable Law. Without limiting the generality
of the foregoing, the Borrower agrees that the Administrative Agent shall have the right, subject
to the mandatory requirements of applicable Law and subject to pre-existing rights and licenses to
sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at
any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as
the Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at
any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders
or purchasers to Persons who will represent and agree that they are purchasing the Collateral for
their own account for investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale of Collateral the Administrative Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each
such purchaser at any such sale shall hold the property sold absolutely, free from any claim or
right on the part of the Borrower, and the Borrower hereby waives and releases (to the extent
permitted by law) all rights of redemption, stay, valuation and appraisal that the Borrower now has
or may at any time in the future have under any rule of Law or statute now existing or hereafter
enacted.




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     (b) The Administrative Agent shall give the Borrower 10 days’ written notice (which the
Borrower agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its
equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale
of Collateral. Such notice, in the case of a public sale, shall state the time and place
for such sale and, in the case of a sale at a broker’s board or on a securities
exchange, shall state the board or exchange at which such sale is to be made and the
day on which the Collateral, or portion thereof, will first be offered for sale at such
board or exchange. Any such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Administrative Agent may fix and state in
the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to
be sold may be sold in one lot as an entirety or in separate parcels, as the Administrative
Agent may (in its sole and absolute discretion) determine. The Administrative Agent shall
not be obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been given. The
Administrative Agent may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time and place to
which the same was so adjourned. In case any sale of all or any part of the Collateral is
made on credit or for future delivery, the Collateral so sold may be retained by the
Administrative Agent until the sale price is paid by the purchaser or purchasers thereof,
but the Administrative Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may be sold again upon like notice. At any public (or, to the
extent permitted by law, private) sale made pursuant to this Section 10.10, any
Secured Party may bid for or purchase for cash, free (to the extent permitted by law) from
any right of redemption, stay, valuation or appraisal on the part of the Borrower (all said
rights being also hereby waived and released to the extent permitted by law), the Collateral
or any part thereof offered for sale and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further accountability to
the Borrower therefor. For purposes hereof, an enforceable written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the Administrative
Agent shall be free to carry out such sale in compliance with such agreement and the
Borrower shall not be entitled to the return of the Collateral or any portion thereof
subject thereto, notwithstanding the fact that after the Administrative Agent shall have
entered into such an agreement, all Events of Default shall have been remedied and the
Obligations paid in full. As an alternative to exercising the power of sale herein
conferred upon it, the Administrative Agent may proceed by a suit or suits at law or in
equity to foreclose this Agreement and the Collateral Documents and to sell the Collateral
or any portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 10.10 shall be deemed to conform to the
commercially reasonable standards as provided in Section 9-610(b) of the UCC or its
equivalent in other jurisdictions.



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     (c) Notwithstanding anything to the contrary contained in this Agreement, if any
enforceable term of any promissory note, contract, agreement, permit, lease, license
(including any License) or other General Intangible included as a part of the Collateral
requires the consent of the Person obligated on such promissory note or any Person (other
than the Borrower) obligated on such lease, contract or agreement, or which has issued such
permit or license (including any License) or other General Intangible (i) for the
creation, attachment or perfection of the Lien of this Agreement in such Collateral or
(ii) for the assignment or transfer thereof or the creation, attachment or perfection of
such Lien not to give rise to a default, breach, right of recoupment, claim, defense,
termination, right of termination or other remedy thereunder, then the receipt of any such
necessary consent shall be a condition to any exercise of remedies against such Collateral
under this Section 10.10 (but not to the creation, attachment or perfection of the
Lien of this Agreement as provided herein).



          10.11 Application of Proceeds. All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon all or any part of the
Collateral of the Borrower may, in the discretion of the Administrative Agent, be held, to the
extent permitted under applicable Law, by the Administrative Agent as additional collateral
security for all or any part of the Obligations of the Borrower, and/or then or at any time
thereafter shall be applied in whole or in part by the Administrative Agent for the ratable benefit
of the Secured Parties against all or any part of the Obligations of the Borrower in accordance
with Section 8.03. Any surplus of such cash or cash proceeds of the Borrower held by the
Administrative Agent and remaining on the Termination Date shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive such surplus.




          10.12 Grant of License to Use Intellectual Property. Subject to any Licenses or other
agreements with third parties that have been or may be entered into by the Borrower, for the
purpose of enabling the Administrative Agent to exercise rights and remedies under this Agreement
at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and
remedies, the Borrower hereby grants to the Administrative Agent an irrevocable (during such time),
nonexclusive license for the term of this Agreement (exercisable without payment of royalty or
other compensation to the Borrower) to use, license or sublicense any of the Collateral consisting
of Intellectual Property now owned or hereafter acquired by the Borrower, wherever the same may be
located, and including in such license reasonable access to all media in which any of the licensed
items may be recorded or stored and to all computer software and programs used for the compilation
or printout thereof. The use of such license by the Administrative Agent may be exercised, at the
option of the Administrative Agent, only upon the occurrence and during the continuation of an
Event of Default; provided that any license, sublicense or other transaction entered into
by the Administrative Agent in accordance herewith shall be binding upon the Borrower
notwithstanding any subsequent cure of an Event of Default.




          10.13 Securities Act, etc. In view of the position of the Borrower in relation to the Pledged
Collateral, or because of other current or future circumstances, a question may arise under the
Securities Laws with respect to any disposition of the Pledged Collateral or any Investment
Property permitted hereunder. The Borrower understands that compliance with the



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Securities Laws might very strictly limit the course of conduct of the Administrative Agent if the Administrative
Agent were to attempt to dispose of all or any part of the Pledged Collateral or any Investment
Property, and might also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Collateral or any Investment Property could dispose of the same. Similarly, there
may be other legal restrictions or limitations affecting the Administrative Agent in any attempt to
dispose of all or part of the Pledged Collateral or any Investment
Property under applicable Blue Sky or other state securities laws or similar laws analogous in
purpose or effect. The Borrower recognizes that in light of such restrictions and limitations the
Administrative Agent may, with respect to any sale of the Pledged Collateral or any Investment
Property, limit the purchasers to those who will agree, among other things, to acquire such Pledged
Collateral or any such Investment Property for their own account, for investment, and not with a
view to the distribution or resale thereof. The Borrower acknowledges and agrees that in light of
such restrictions and limitations, the Administrative Agent, when exercising remedies on behalf of
the Secured Parties after an Event of Default has occurred and is continuing, (a) may proceed to
make such a sale whether or not a registration statement for the purpose of registering such
Pledged Collateral or Investment Property or part thereof shall have been filed under the
Securities Laws and (b) may approach and negotiate with a single potential purchaser to effect such
sale. The Borrower acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale without such restrictions.
In the event of any such sale, the Administrative Agent shall incur no responsibility or liability
for selling all or any part of the Pledged Collateral or Investment Property at a price that the
Administrative Agent, in its sole and absolute discretion, may in good faith deem reasonable under
the circumstances, notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section 10.13 will apply
notwithstanding the existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Administrative Agent sells.




          10.14 Administrative Agent Appointed Attorney-in-Fact. (a) The Borrower hereby appoints the
Administrative Agent the attorney-in-fact of the Borrower for the purpose, upon the occurrence and
during the continuance of an Event of Default, of carrying out the provisions of this Article
X and taking any action and executing any instrument that the Administrative Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, the Administrative
Agent shall have the right, upon the occurrence and during the continuance of an Event of Default,
with full power of substitution either in the Administrative Agent’s name or in the name of the
Borrower, (i) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks,
drafts, money orders or other evidences of payment relating to the Collateral or any part thereof,
(ii) to demand, collect, receive payment of, give receipt for and give discharges and releases of
all or any of the Collateral, (iii) to ask for, demand, sue for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue of any Collateral, (iv)
to sign the name of the Borrower on any invoice or bill of lading relating to any of the
Collateral, (v) to send verifications of Accounts to any Account Debtor, (vi) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of



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the Collateral or to enforce any rights in respect of any Collateral, (vii) to settle, compromise, compound, adjust or defend any
actions, suits or proceedings relating to all or any of the Collateral, (viii) to notify, or to
require the Borrower to notify, Account Debtors to make payment directly to the Administrative
Agent, (x) to make, settle and adjust claims in respect of the Collateral under policies of
insurance, to endorse the name of the Borrower in any check, draft, instrument or other item of
payment of the proceeds of such policies of insurance and to
make all determinations and decision with respect thereto, and (x) subject to pre-existing
rights and licenses, to use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to
carry out the purposes of this Agreement, as fully and completely as though the Administrative
Agent were the absolute owner of the Collateral for all purposes; provided, that nothing
herein contained shall be construed as requiring or obligating the Administrative Agent to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment received by the
Administrative Agent, or to present or file any claim or notice, or to take any action with respect
to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Administrative Agent and the other Secured Parties shall be
accountable only for amounts actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or agents shall be
responsible to the Borrower for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.





     (b) In the event that the Borrower shall fail to obtain or maintain any policy of
insurance required by this Agreement or any Collateral Document or to pay any premium in
whole or in part relating thereto, the Administrative Agent may, without waiving or
releasing any obligation or liability of the Borrower hereunder or any Event of Default, in
its sole discretion, obtain and maintain such policies of insurance and pay such premium and
take any other action with respect thereto as the Administrative Agent reasonably deems
advisable.




     (c) The Administrative Agent may, in its sole discretion, discharge past due taxes,
amendments, charges, fees and Liens at any time levied or placed on the Collateral to the
extent the Borrower failed to do so as required by this Agreement without waiving or
releasing any obligation or liability of the Borrower hereunder or any Event of Default.




     (d) All sums disbursed by the Administrative Agent pursuant to this Article X,
including reasonable attorney’s fees, court costs, expenses, and other charges (including
the amount of any insurance premiums or other obligation discharged by the Administrative
Agent) shall be reimbursed by the Borrower pursuant to Section 11.04, and until so
reimbursed shall be additional Obligations of the Borrower secured by the Collateral.



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ARTICLE XI

MISCELLANEOUS




          11.01 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 be effective unless in writing signed by the Required Lenders and the Borrower,
and (i) a copy of each such waiver or consent shall be delivered to the Administrative Agent a
reasonable amount of time prior to execution thereof, (ii) a fully executed copy thereof shall be
delivered to the Administrative Agent in a reasonable amount of time after execution thereof, and
(iii) 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 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 (excluding mandatory prepayments) of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under such other Loan Document without the
written consent of each Lender entitled to such payment;




     (d) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (ii) of the second proviso to this Section 11.01) any fees or
other amounts payable hereunder or under any other Loan Document without the written consent
of each Lender entitled to such amount; 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 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 to reduce
any fee payable hereunder;




     (e) change (i) Section 2.11 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 or (ii) the order of application of any prepayment of Loans among the Facilities from
the application thereof set forth in the applicable provisions of Section 2.04(b) in
any manner that materially and adversely affects the Lenders under a Facility without the
written consent of (i) if such Facility is the Term B Facility, the Required Term B Lenders,
and (ii) if such Facility is an Additional Term Facility, the applicable Required Additional
Term Lenders;




     (f) change (i) any provision of this Section 11.01 or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of



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Lenders required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder (other than the definitions specified in clause
(ii) of this Section 11.01(g)), without the written consent of each Lender or (ii)
the definition of “Required Additional Term Lenders” or “Required Term B Lenders” without
the written consent of each Lender under the applicable Facility;




     (g) release all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender; or




     (h) impose any greater restriction on the ability of any Lender under a Facility to
assign any of its rights or obligations hereunder without the written consent of (i) if such
Facility is the Term B Facility, the Required Term B Lenders, and (iii) if such Facility is
an Additional Term Facility, the applicable Required Additional Term Lenders;


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.




          If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrower may replace such non-consenting Lender in accordance with
Section 11.13; provided that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).




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





          (i) if to the Borrower or the Administrative Agent, to the address, telecopier
number, electronic mail address or telephone number specified for such Person on
Schedule 11.02; and




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



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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
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 pursuant to Article II if such Lender 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) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no
event shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to the Borrower, any Lender or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of
Borrower Materials through the Internet, except to the extent that such losses, claims,
damages, liabilities or expenses



111









 







are determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall
any Agent Party have any liability to the Borrower, any Lender or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to direct or
actual damages).




     (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent,
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 and the Administrative Agent. In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may
be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public
Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including
United States Federal and state securities Laws, to make reference to Borrower Materials
that are not made available through the “Public Side Information” portion of the Platform
and that may contain material non-public information with respect to the Borrower or its
securities for purposes of United States Federal or state securities Laws.




     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and
the Lenders shall be entitled to rely and act upon any notices (including telephonic Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrower shall indemnify the
Administrative Agent 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.



          11.03 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 or under any other Loan Document 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, and




112









 







provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.




          11.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by (without duplication) the
Administrative Agent and its Affiliates and the Lead Arrangers (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), and (ii)  all out-of-pocket expenses incurred by the Administrative Agent or any
Lender (including the fees, charges and disbursements of any external counsel for the
Administrative Agent or any Lender), and shall pay all fees and time charges for attorneys who may
be employees of the Administrative Agent or any Lender, 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 continuation of an Event of Default the fees and charges of internal attorneys shall
not be duplicative of any such external counsel, or (B) in connection with Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.





     (b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each other Agent, each Lender 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 that are not duplicative of fees and charges of internal
counsel, incurred by any Indemnitee or asserted 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, or, in the case of the Administrative Agent (and any sub-agent thereof)
and its Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (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 or any of the Borrower’s directors, shareholders or creditors, and regardless
of whether any Indemnitee is a party thereto, IN ALL CASES,



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WHETHER OR NOT CAUSED BY OR
ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE
INDEMNITEE; provided that such indemnity 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), any other Agent or any
Related Party thereof, 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), any
other Agent or such Related Party, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent) or any other Agent 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 any other Agent in connection with such
capacity. The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.11.




     (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 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 distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby other than for direct or actual damages resulting from the gross negligence or
willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of
a court of competent jurisdiction.




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



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



          11.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent or any Lender, or the Administrative Agent 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 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 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 Federal Funds Rate from time to time in effect.
The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment
in full of the Obligations and the termination of this Agreement.




          11.06 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 assignee in accordance with the provisions of
Section 11.06(b), (ii) by way of participation in accordance with the provisions of
Section 11.06(d), or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 11.06(f) (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Agents and the Related Parties of each of the
Agents and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.





     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment(s) and the Loans at the time owing to it); provided
that any such assignment shall be subject to the following conditions:




          (i) Minimum Amounts.




          (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans



115









 






at the time owing to it under such Facility or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and




          (B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect,
the principal outstanding balance of the Loans of the assigning Lender
subject to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than
$1,000,000 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);
provided, however, that concurrent assignments to members of
an Assignee Group and concurrent assignments from members of an Assignee
Group to a single Eligible Assignee (or to an Eligible Assignee and members
of its Assignee Group) will be treated as a single assignment for purposes
of determining whether such minimum amount has been met;




          (ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not prohibit any Lender from assigning
all or a portion of its rights and obligations among separate Facilities on a
non-pro rata basis;




          (iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this Section
and, in addition:




          (A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;




          (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of (i) any Commitment if such assignment is to a Person that is not
a Lender with a Commitment in respect of the applicable Facility, an
Affiliate of such Lender or an Approved Fund with respect to such Lender or
(ii) any Loan to a Person that is not a Lender, an Affiliate of a Lender or
an Approved Fund.



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          (iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500;
provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.




          (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




          (vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
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 11.04
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 Section
11.06(d).





     (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
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 any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




     (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



117









 







obligations under this Agreement (including all or a portion of its Commitment and/or
the 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 and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 11.01 that affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 11.06(b). To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.08 as though it
were a Lender, provided such Participant agrees to be subject to Section
2.11 as though it were a Lender.




     (e) Limitations upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the participation sold
to such Participant, 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) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.




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



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          11.07 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
as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement or an Eligible Assignee
invited to be a Lender pursuant to Section 2.03 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
(i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.




          For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary thereof relating to the Borrower or any Subsidiary thereof or their
respective businesses, other than any such information that is available to the Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary thereof, provided that, in the case of information received from the Borrower or
any such 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, but at least reasonable care, to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.




          Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.




          11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender 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



119









 






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,
irrespective of whether or not such Lender 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 different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender or their respective Affiliates may have. Each Lender 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.




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




          11.10 Counterparts; 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. 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.




          11.11 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 Borrowing, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.




120









 








          11.12 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.




          11.13 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 or if any other circumstance exists hereunder that gives the
Borrower the right to replace a Lender as a party hereto, 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 11.06), 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 to the Administrative Agent the assignment fee
specified in Section 11.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder 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.



          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.




          11.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.





121









 









     (b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS 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 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 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 PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW



          11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS



122









 






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.




          11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent, the Lead Arrangers and the other
Agents are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one
hand, and the Administrative Agent, the Lead Arrangers and the other Agents, on the other hand, (B)
the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate and (C) the Borrower is capable of evaluating, and understands and accepts,
the terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) the Administrative Agent, each Lead Arranger and each other Agent each is and
has been acting solely as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for the
Borrower or any of its Affiliates or any other Person and (B) neither the Administrative Agent nor
any Lead Arranger or other Agent has any obligation to the Borrower or any of its Affiliates with
respect to the transactions contemplated hereby except those obligations expressly set forth herein
and in the other Loan Documents; and (iii) the Administrative Agent, the Lead Arrangers and the
other Agents and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent nor any Lead Arranger or other Agent has any obligation to disclose any of
such interests to the Borrower or any of its Affiliates. To the full extent permitted by Law, the
Borrower hereby waives and releases any claims that it may have against the Administrative Agent,
the Lead Arrangers and the other Agents with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated hereby.




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




123









 








          11.18 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.




124









 





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




	 	 	 	 	 
	 	DISCOVERY COMMUNICATIONS HOLDING, LLC

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



Credit, Pledge and Security Agreement

Signature Page





 









 





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

 	 
	 	By:  	/s/
Kevin J. Sanders 	 
	 	 	Name:  	Kevin J. Sanders 	 
	 	 	Title:  	Vice President 	 
	 



Credit, Pledge and Security Agreement

Signature Page





 









 





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

 	 
	 	By:  	/s/
Kevin J. Sanders  	 
	 	 	Name:  	Kevin J. Sanders 	 
	 	 	Title:  	Vice President 	 
	 



Credit, Pledge and Security Agreement

Signature Page





 









 





SCHEDULE 2.01

to

Credit, Pledge and Security Agreement




COMMITMENTS; APPLICABLE PERCENTAGES




TERM B FACILITY




	 	 	 	 	 	 	 	 	 
	 	 	Term B	 	Applicable
	Term B Lender	 	Commitment	 	Percentage
	BANK OF AMERICA, N.A.
	 	$	1,500,000,000.00	 	 	 	100.0000000000	%
	 
	 	 	 	 	 	 	 
	Total
	 	$	1,500,000,000.00	 	 	 	100.0000000000	%






Schedule 2.01

1




 









 




List of Omitted Exhibits and Schedules 




     The
following exhibits and schedules to the Credit, Pledge and Security
Agreement, dated as of May 14, 2007, among Discovery Communications
Holding, LLC, as Borrower, Bank of America, N.A., as Administrative
Agent, JPMorgan Chase Bank, N.A., as Syndication Agent, The Royal
Bank of Scotland, plc, Toronto Dominion (Texas), Inc., and Wachovia
Bank, National Association, as Document Agents, Banc of America
Securities LLC and J.P. Morgan Securities, Inc., as Joint Lead
Arrangers and Joint Bookrunners, and the other lenders that are
parties thereto have not been provided herein:



	 	 	 	 	 
	 

	 	Schedule 11.02:
	 	Administrative Agent's Office,
Certain Addresses for Notices
	 
	 	 	 	 
	 

	 	Exhibit A:
	 	Form of Loan Notice
	 
	 	 	 	 
	 

	 	Exhibit B:
	 	Form of Note
	 
	 	 	 	 
	 

	 	Exhibit C:
	 	Form of Compliance Certificate
	 
	 	 	 	 
	 

	 	Exhibit D:
	 	Form of Assignment and Assumption
	 
	 	 	 	 
	 

	 	Exhibit E:
	 	Form of Information Certificate
(Closing Date)
	 
	 	 	 	 
	 

	 	Exhibit F:
	 	Form of Information Certificate
(Annual)
	 
	 	 	 	 






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