**Exhibit10.1**

 

 

**PublishedCUSIPNumber:                          **

 

 

**CREDITAGREEMENT**

 

dated as of June15, 2004

 

among

 

**SABRE INC.**,

as Borrower,

 

**THELENDERS PARTY HERETO**,

 

**BANK OFAMERICA, N.A.**,

as AdministrativeAgent,

 

**CITIBANK, N.A.,**

**SUMITOMO MITSUI BANKING CORP., NEW YORK,**

**UFJ BANK LIMITED**

and

**JPMORGAN CHASE BANK**,

as Co-SyndicationAgents

 

 

**BANC OFAMERICA SECURITIES LLC**,

as

Sole Lead Arrangerand Sole Book Manager

 

 

 

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TABLE OF CONTENTS

 

Article andSection

 
| ARTICLE  I  DEFINITIONS AND ACCOUNTING TERMS        |                                                                  |
|----------------------------------------------------------|-----------------------------------------------------------------------|
| 1.01                                                     | Defined Terms.                                                        |   |
| 1.02                                                     | Interpretive Provisions.                                              |   |
| 1.03                                                     | Accounting Terms and  Provisions.                                     |   |
| 1.04                                                     | Rounding.                                                             |   |
| 1.05                                                     | References to Agreements  and Laws.                                   |   |
| 1.06                                                     | Times of Day.                                                         |   |
| 1.07                                                     | Letter  of Credit Amounts.                                            |   |
| 1.08                                                     | Exchange Rates;  Currency Equivalents.                                |   |
| 1.09                                                     | Additional  Alternative Currencies.                                   |   |
| 1.10                                                     | Redenomination  of Certain Alternative Currencies.                    |   |
|                                                     |                                                                  |   |
| ARTICLE  II  COMMITMENTS AND CREDIT EXTENSIONS      |                                                                  |
| 2.01                                                     | Commitments.                                                          |   |
| 2.02                                                     | Borrowings, Conversions  and Continuations.                           |   |
| 2.03                                                     | Additional  Provisions with Respect to Letters of Credit.             |   |
| 2.04                                                     | Additional  Provisions with Respect to Swingline Loans.               |   |
| 2.05                                                     | Repayment  of Loans.                                                  |   |
| 2.06                                                     | Prepayments.                                                          |   |
| 2.07                                                     | Termination or  Reduction of Commitments.                             |   |
| 2.08                                                     | Interest.                                                             |   |
| 2.09                                                     | Fees.                                                                 |   |
| 2.10                                                     | Computation of  Interest and Fees.                                    |   |
| 2.11                                                     | Payments  Generally.                                                  |   |
| 2.12                                                     | Sharing  of Payments.                                                 |   |
| 2.13                                                     | Evidence of  Debt.                                                    |   |
|                                                     |                                                                  |   |
| ARTICLE III  TAXES, YIELD PROTECTION AND ILLEGALITY |                                                                  |
| 3.01                                                     | Taxes.                                                                |   |
| 3.02                                                     | Illegality.                                                           |   |
| 3.03                                                     | Inability to Determine  Rates.                                        |   |
| 3.04                                                     | Increased  Cost; Capital Adequacy; Reserves on Eurodollar Rate Loans. |   |
| 3.05                                                     | Compensation  for Losses.                                             |   |
| 3.06                                                     | Matters  Applicable to All Requests for Compensation.                 |   |
| 3.07                                                     | Survival Losses.                                                      |   |
|                                                     |                                                                  |   |
| ARTICLE  IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS    |                                                                  |
| 4.01                                                     | Conditions to  Initial Credit Extensions.                             |   |
| 4.02                                                     | Conditions to all  Credit Extensions.                                 |   |
|                                                     |                                                                  |   |
| ARTICLE V  REPRESENTATIONS AND WARRANTIES                |                                                                  |
| 5.01                                                     | Corporate  Existence.                                                 |   |
| 5.02                                                     | Power  and Authority.                                                 |   |
| 5.03                                                     | Enforceability.                                                       |   |
| 5.04                                                     | Legal  Proceedings.                                                   |   |

 

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| 5.05                                               | No Material Adverse Effect.                                                      |   |
|----------------------------------------------------|----------------------------------------------------------------------------------|--------|
| 5.06                                               | Compliance  with Law.                                                            |   |
| 5.07                                               | Use of Proceeds.                                                                 |   |
| 5.08                                               | Disclosure.                                                                      |   |
| 5.09                                               | Absence of Default.                                                              |   |
| 5.10                                               | ERISA  Compliance.                                                               |   |
| 5.11                                               | Financial  Condition.                                                            |   |
| 5.12                                               | Margin  Regulations; Investment Company Act; Public Utility Holding Company Act. |   |
| 5.13                                               | Insurance.                                                                       |   |
|                                               |                                                                             |   |
| ARTICLE VI  AFFIRMATIVE COVENANTS             |                                                                             |
| 6.01                                               | Preservation of Existence.                                                       |   |
| 6.02                                               | Payment of Taxes and  Claims.                                                    |   |
| 6.03                                               | Inspection  Rights.                                                              |   |
| 6.04                                               | Financial  Statements.                                                           |   |
| 6.05                                               | Certificates, Notices  and Other Information.                                    |   |
| 6.06                                               | Keeping of  Records and Books of Account.                                        |   |
| 6.07                                               | Compliance  With Laws.                                                           |   |
| 6.08                                               | Maintenance of Insurance.                                                        |   |
| 6.09                                               | Maintenance of Properties.                                                       |   |
| 6.10                                               | Compliance With Agreements.                                                      |   |
| 6.11                                               | Use of Proceeds.                                                                 |   |
|                                               |                                                                             |   |
| ARTICLE VII  NEGATIVE COVENANTS               |                                                                             |
| 7.01                                               | Restricted  Funded Debt.                                                         |   |
| 7.02                                               | Liens.                                                                           |   |
| 7.03                                               | Fundamental  Changes.                                                            |   |
| 7.04                                               | Asset  Dispositions.                                                             |   |
| 7.05                                               | Financial  Covenants.                                                            |   |
| 7.06                                               | Permitted  Securitization Transaction.                                           |   |
| 7.07                                               | Transactions with  Affiliates.                                                   |   |
| 7.08                                               | Dividends;  Stock Repurchases and Redemptions.                                   |   |
|                                               |                                                                             |   |
| ARTICLE  VIII  EVENTS OF DEFAULT AND REMEDIES |                                                                             |
| 8.01                                               | Events of  Default.                                                              |   |
| 8.02                                               | Remedies Upon Event of  Default.                                                 |   |
| 8.03                                               | Application  of Funds.                                                           |   |
|                                               |                                                                             |   |
| ARTICLE IX  ADMINISTRATIVE AGENT              |                                                                             |
| 9.01                                               | Appointment and Authority.                                                       |   |
| 9.02                                               | Rights as  a Lender.                                                             |   |
| 9.03                                               | Exculpatory  Provisions.                                                         |   |
| 9.04                                               | Reliance by  Administrative Agent.                                               |   |
| 9.05                                               | Delegation  of Duties.                                                           |   |
| 9.06                                               | Resignation of  Administrative Agent.                                            |   |
| 9.07                                               | Non-Reliance  on Administrative Agent and Other Lenders.                         |   |
| 9.08                                               | No Other Duties, Etc.                                                            |   |
| 9.09                                               | Administrative  Agent May File Proofs of Claim.                                  |   |
|                                               |                                                                             |   |
| ARTICLE X  MISCELLANEOUS                      |                                                                             |
| 10.01                                              | Amendments, Etc.                                                                 |   |

 

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| 10.02 | Notices;  Effectiveness; Electronic Communication.  |   |
|-------|-----------------------------------------------------|--------|
| 10.03 | No Waiver; Cumulative  Remedies.                    |   |
| 10.04 | Expenses; Indemnity;  Damage Waiver.                |   |
| 10.05 | Payments  Set Aside.                                |   |
| 10.06 | Successors  and Assigns.                            |   |
| 10.07 | Treatment  of Certain Information; Confidentiality. |   |
| 10.08 | Right of Setoff.                                    |   |
| 10.09 | Interest  Rate Limitation.                          |   |
| 10.10 | Counterparts;  Integration; Effectiveness.          |   |
| 10.11 | Survival of  Representations and Warranties.        |   |
| 10.12 | Severability.                                       |   |
| 10.13 | Replacement  of Lenders.                            |   |
| 10.14 | Governing Law;  Jurisdiction; Etc.                  |   |
| 10.15 | Waiver  of Jury Trial.                              |   |
| 10.16 | USA  PATRIOT Act Notice.                            |   |
| 10.17 | Judgment  Currency.                                 |   |
| 10.18 | ENTIRE  AGREEMENT.                                  |   |

 

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| **SCHEDULES**   |
|-----------------|
|            |   |   |
| Schedule 2.01   | Lenders and Commitments |   |
| Schedule 3.03   | Mandatory Cost Rate |   |
| Schedule 5.04   | Legal Proceedings |   |
| Schedule 10.02  | Notice Addresses |   |
|            |   |   |
| **EXHIBITS**    |
|            |   |   |
| Exhibit 2.01(d) | Form of Lender  Joinder Agreement |   |
| Exhibit 2.02    | Form of Loan Notice |   |
| Exhibit 2.13-1  | Form of Revolving  Note |   |
| Exhibit 2.13-2  | Form of Swingline  Note |   |
| Exhibit 6.05(d) | Form of Compliance  Certificate |   |
| Exhibit 10.06   | Form of Assignment  and Assumption |   |

 

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**CREDITAGREEMENT**

 

 

This CREDIT AGREEMENT(the “Credit Agreement”) is entered into as of June 15, 2004, among SABREINC., a Delaware corporation****(the “Borrower”),the Lenders party hereto, and BANK OF AMERICA, N.A., as Administrative Agent.

 

WHEREAS, the Borrower hasrequested that the Lenders provide a revolving credit facility for the purposesset forth herein; and

 

WHEREAS, the Lenders haveagreed to make the requested facility available on the terms and conditions setforth herein;

 

NOW, THEREFORE, inconsideration of these premises and the mutual covenants and agreementscontained herein, the receipt and sufficiency of which are hereby acknowledged,the parties hereto covenant and agree as follows:

 

 

# **ARTICLE I  DEFINITIONS AND ACCOUNTING TERMS**

 

## **1.01**                        DefinedTerms.

## ** **

As used in this CreditAgreement, the following terms have the meanings provided below:

 

“Acquisition”means the purchase or acquisition by any Person of (a) more than 50% of theCapital Stock with ordinary voting power of another Person or (b) all orsubstantially all of the property (other than Capital Stock) of another Person,whether or not involving a merger or consolidation with such Person.

 

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

 

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

 

“AdministrativeQuestionnaire” means an administrative questionnaire for the Lenders in aform supplied by the Administrative Agent.

 

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

 

“Agent-Related Persons”means the Administrative Agent, together with its Affiliates (including, in thecase of Bank of America in its capacity as the Administrative Agent, theArranger), and the officers, directors, employees, agents and attorneys-in-factof such Persons and Affiliates.

 

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

 

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“Aggregate RevolvingCommitted Amount” has the meaning provided in Section 2.01(a).

 

“Alternative Currency”means each of Australian Dollars, British Pounds Sterling, Canadian Dollars,Euro, Yen and each other lawful currency (other than Dollars) that is freelyavailable and freely transferable and convertible into Dollars and that isapproved by all the Lenders in accordance with Section 1.09.

 

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

 

“Alternative CurrencySublimit” has the meaning provided in Section 2.01(a).  The Alternative Currency Sublimit is part of,and not in addition to, the Aggregate Revolving Commitments.

 

“Applicable Currency”means, with respect to any Loan, the currency in which such Loan isdenominated.

 

“Applicable Percentage”means, for any day, the rate per annum set forth below opposite the applicableDebt Rating:

 
| **Pricing  Level** | ** ** | **S&P  Debt Rating** | ** ** | **Moody’s  Debt Rating** | ** ** | **Margin  for Eurocurrency Loans and  Letter of Credit Fees** | ** ** | **Base  Margin** | ** ** | **Facility  Fee** | ** ** | **Utilization  Fee  (>50%)** | ** ** |
|--------------------|------------|--------------------------|------------|-------------------------------|------------|---------------------------------------------------------------|------------|------------------|------------|-------------------|------------|---------------------------------|------------|
| 1                  |       | A and above              |       | A2 and above                  |       | 0.295                                                         | %          | 0.000            | %          | 0.080             | %          | 0.100                           | %          |
| 2                  |       | A-                       |       | A3                            |       | 0.400                                                         | %          | 0.000            | %          | 0.100             | %          | 0.100                           | %          |
| 3                  |       | BBB+                     |       | Baa1                          |       | 0.500                                                         | %          | 0.000            | %          | 0.125             | %          | 0.125                           | %          |
| 4                  |       | BBB                      |       | Baa2                          |       | 0.600                                                         | %          | 0.000            | %          | 0.150             | %          | 0.125                           | %          |
| 5                  |       | BBB-                     |       | Baa3                          |       | 0.775                                                         | %          | 0.000            | %          | 0.225             | %          | 0.125                           | %          |
| 6                  |       | BB+ and below            |       | Ba1 and below                 |       | 0.950                                                         | %          | 0.000            | %          | 0.300             | %          | 0.250                           | %          |

 

The Parent will maintaina Debt Rating at all times with each of the Rating Services.  The applicable Pricing Level will bedetermined by reference to the Debt Ratings; provided that (a) if DebtRatings are provided by each of the Rating Services and the Debt Ratings by theRating Services indicate different Pricing Levels, then (i) if they are onlyone level apart, the applicable Pricing Level shall be determined by referenceto the higher (less expensive) Debt Rating and shall be set at the PricingLevel indicated thereby (e.g., if the Debt Rating by S&P is A and Moody’sis A3, the Applicable Percentage would be set at Pricing Level 1), (ii) if theyare two or four levels apart, the applicable Pricing Level shall be determinedby using the Debt Rating that is the intermediate Debt Rating (e.g., if theDebt Rating by S&P is A and Moody’s is Baa1, the Applicable Percentagewould be set at Pricing Level 2) and (iii) if they are three or five levelsapart, the applicable Pricing Level shall be determined by using the DebtRating that is the higher (less expensive) of the two intermediate Debt Ratings(e.g., if the Debt Rating by S&P is A and Moody’s is Baa2, the ApplicablePercentage would be set at Pricing Level 2), (b) if there is only one DebtRating, then the applicable Pricing Level shall be determined by reference tothe Pricing Level indicated thereby (e.g., if the only Debt Rating is byS&P and it is BBB, the Applicable Percentage would be set at

 

2

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Pricing Level 4; provided,however, that if as of the last day upon which there were two Debt Ratings thoseratings were two or more levels apart, then the applicable Pricing Level shallbe determined by reference to the next lower (more expensive) Debt Rating andshall be set at the Pricing Level indicated thereby (e.g., if the only DebtRating is by S&P and it is BBB and Moody’s last Debt Rating was A-, theApplicable Percentage would be set at Pricing Level 5) and (c) if there is noDebt Rating, then the Applicable Percentage would be set at Pricing Level 6.

 

The ApplicablePercentage shall be determined and adjusted on the first Business Day followingthe date of any change in the Debt Rating. Adjustments in the Applicable Percentage shall be effective as to allExtensions of Credit, existing and prospective, from the date ofadjustment.  Determinations by theAdministrative Agent of the applicable Pricing Level shall be conclusive absentmanifest error.  The Administrative Agentshall promptly notify the Lenders of changes in the Applicable Percentage.

 

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

 

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

 

“Asset Disposition”shall mean and include the sale, lease or other disposition of any property orasset (including without limitation the Capital Stock of a Subsidiary) by theBorrower or any of its Subsidiaries; but for purposes hereof shall not include,in any event, (a) the sale of inventory in the ordinary course of business, (b)the sale or disposition of machinery and equipment no longer used or useful inthe conduct of business, (c) a sale, lease, transfer or other disposition of propertyor assets by the Borrower to any of its Subsidiaries or by any Subsidiary tothe Borrower, (d) a sale, transfer or other disposition of SecuritizationReceivables in connection with a Permitted Securitization Transaction or (e) asale, transfer or other disposition of cash or marketable securities inconnection with any (i) dividend payment or other distribution in respect of,or purchase, redemption or other acquisition of, Capital Stock of the Borroweror its Subsidiaries or (ii) acquisition by the Borrower or its Subsidiaries ofany assets, rights, properties, goods or services, or loans, advances or othercredits extended by the Borrower or its Subsidiaries, or other transaction orarrangement whereby the Borrower or its Subsidiaries receive consideration.

 

“Arranger” meansBAS, in its capacity as sole lead arranger and sole book manager.

 

“Assignment andAssumption” means an Assignment and Assumption substantially in the form ofExhibit 10.06.

 

“Attorney Costs”means and includes all reasonable fees, expenses and disbursements of any lawfirm or other counsel.

 

“AttributablePrincipal Amount” means (a) in the case of capital leases, the amount ofcapital lease obligations determined in accordance with GAAP, (b) in the caseof Synthetic Leases, an amount determined by capitalization of the remaininglease payments thereunder as if it were a capital lease determined inaccordance with GAAP, (c) in the case of Securitization Transactions, theoutstanding principal amount of such financing, after taking into accountreserve amounts and making appropriate adjustments, determined by theAdministrative Agent in its reasonable judgment and (d) in the case of Sale andLeaseback Transactions, the present value (discounted in accordance with GAAPat the debt rate

 

3

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implied in the applicablelease) of the obligations of the lessee for rental payments during the term****of such lease).

 

“Australian Dollar”means the lawful currency of the Commonwealth of Australia.

 

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

 

“BAS” means Bancof America Securities LLC, together with its successors.

 

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

 

“Base Rate Loan”means a Loan that bears interest based onthe Base Rate.  All Base Rate Loans shallbe denominated in Dollars.

 

“Borrower” has themeaning provided in the recitals hereto, together with its successors andpermitted assigns.

 

“Borrowing” means(a) a borrowing consisting of simultaneous Loans of the same Type and, in thecase of Eurocurrency Rate Loans, in the same currency and having the sameInterest Period, or (b) a borrowing of Swingline Loans, as appropriate.

 

“British PoundsSterling” or “£” means the lawful currency of the United Kingdom.

 

“Business Day”means any day other than a Saturday, Sunday or other day on which commercial banksare authorized to close under the Laws of, or are in fact closed in, the statewhere the Administrative Agent’s Office with respect to Obligations denominatedin Dollars is located and, (a) if such day relates to any Eurocurrency RateLoan denominated in a currency other than Euro, means any such day on whichdealings in deposits in the relevant currency are conducted by and betweenbanks in the London or other applicable offshore interbank market for suchcurrency or (b) if such day relates to any Eurocurrency Rate Loan denominatedin Euro, means a TARGET Day .

 

“Canadian Dollars”means the lawful currency of Canada.

 

“Capital Stock”means (a) in the case of a corporation, capital stock, (b) in thecase of an association or business entity, any and all shares, interests,participations, rights or other equivalents (however designated) of capitalstock, (c) in the case of a partnership, partnership interests (whethergeneral or limited), (d) in the case of a limited liability company,membership interests and (e) any other interest or participation thatconfers on a Person the right to receive a share of the profits and losses of,or distributions of assets of, the issuing Person.

 

“Cash Collateral”means cash or deposit account balances pledged****anddeposited with or delivered to the Administrative****Agent,for the benefit of the L/C Issuer and the Lenders, as collateral****for

 

4

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the L/C Obligations,pursuant to documentation in form and substance reasonably satisfactory to theAdministrative****Agent and the L/C Issuer.

 

“Closing Date”means the date hereof.

 

“Committed Loan”means a Base Rate Loan or a Eurocurrency Rate Loan made to the Borrower by aLender in accordance with its pro rata share pursuant to Section 2.01,except as otherwise provided herein.

 

“Commitment Period”means the period from and including the Closing Date to the earlier of (a)(i)in the case of Revolving Loans and Swingline Loans, the Revolving TerminationDate or (ii) in the case of the Letters of Credit, the L/C Expiration Date, or(b) in each case, the date on which the Revolving Commitments shall have beenterminated as provided herein.

 

“Commitments”means the Revolving Commitment, the L/C Commitment and the SwinglineCommitment.

 

“ComplianceCertificate” means a certificate substantially in the form of Exhibit6.05(d).

 

“Consolidated EBITDA”means, for any period for the Consolidated Group, the sum of (a) ConsolidatedNet Income, plus (b) to the extent deducted in determining net income,(i) Consolidated Interest Expense, (ii) taxes and (iii) depreciation andamortization, in each case on a consolidated basis determined in accordancewith GAAP.  Except as otherwise expresslyprovided, the applicable period shall be the four consecutive fiscal quartersending as of the date of determination.

 

“Consolidated FundedDebt” means Funded Debt of the Consolidated Group determined on aconsolidated basis in accordance with GAAP.

 

“Consolidated Group”means the Parent and its Consolidated Subsidiaries, as determined in accordancewith GAAP.

 

“Consolidated LeverageRatio” means, as of the last day of each fiscal quarter, the ratio of (a)Consolidated Funded Debt on such day to (b) Consolidated EBITDA for the periodof four consecutive fiscal quarters ending as of such day.

 

“Consolidated NetIncome” shall mean the net income (excluding extraordinary items or thecumulative effect of accounting changes) of the Consolidated Group determinedon a consolidated basis in accordance with GAAP for (A) the applicable periodof four consecutive fiscal quarters, for purposes of calculating theConsolidated Leverage Ratio and (B) the applicable fiscal quarter then ended,for purposes of calculating increases to the Consolidated Net Worth under Section7.05(b) .

 

“Consolidated NetWorth” means, as of any date, consolidated shareholders’ equity or networth of the Consolidated Group as determined in accordance with GAAP.

 

“ConsolidatedSubsidiary” shall mean, as to any Person, any Subsidiary of such Personwhich under the rules of GAAP consistently applied should have its financialresults consolidated with those of such Person for purposes of financialaccounting statements.

 

5

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“ContractualObligation” means, as to any Person, any provision of any security****issued by such Person or of any agreement, instrument orother undertaking to which such Person is a party or by which it or any of itsproperty is bound.

 

“Control” meansthe possession, directly or indirectly, of the power to direct or cause thedirection of the management or policies of a Person, whether through theability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall bedeemed to be Controlled by another Person if such other Person possesses,directly or indirectly, power to vote 10% or more of the securities havingordinary voting power for the election of directors, managing general partnersor the equivalent.

 

“Controlled Group”shall mean as of the applicable date all members of a controlled group ofcorporations and all trades or businesses (whether or not incorporated) undercommon control which, together with Borrower, are treated as a single employerunder Section 414 of the Code.

 

“Credit Agreement”has the meaning provided in the recitals hereto, as the same may be amended andmodified from time to time.

 

“Credit Documents”means this Credit Agreement, the Notes, the Fee Letter, the Issuer Documentsand the Lender Joinder Agreements, if any. The parties hereto acknowledge and agree that the Borrower is (or in thecase of Lender Joinder Agreements, if any, will be) a party to each CreditDocument.

 

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

 

“Debt Rating”means, as of any date of determination, the rating as determined by either ofthe Rating Services of the Parent’s non-credit enhanced, senior unsecuredlong-term debt.

 

“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 similardebtor relief Laws of the United States or other applicable jurisdictions fromtime to time in effect and affecting the rights of creditors generally.

 

“Default” meansany event, act or condition that constitutes and Event of Default or that, withnotice, the passage of time, or both, would constitute an Event of Default.

 

“Default Rate”means (a) when used with respect to Obligations other than Letter of CreditFees, an interest rate equal to (i) the Base Rate plus (ii) theApplicable Percentage, if any, applicable to Base Rate Loans plus (iii)2% per annum; provided, however, that with respect to aEurocurrency Rate Loan, the Default Rate shall be an interest rate equal to theinterest rate (including any Applicable Percentage and any Mandatory Cost)otherwise applicable to such Loan plus 2% per annum, and (b) when used withrespect to Letter of Credit Fees, a rate equal to the Applicable Percentage plus2% per annum.

 

“Defaulting Lender”means any Lender that (a) has failed to fund any portion of the Loans,participations in L/C Obligations or participations in Swingline Loans requiredto be funded by it hereunder within one Business Day of the date required to befunded by it hereunder and has not cured such failure prior to the date ofdetermination, (b) has otherwise failed to pay over to the AdministrativeAgent or any other Lender any other amount required to be paid by it hereunderwithin one Business Day of the date when due, unless the subject of a good faithdispute, and has not cured such failure prior to the

 

6

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date of determination, or(c) has been deemed insolvent or become the subject of a bankruptcy orinsolvency proceeding.

 

“Dollar” or “$”means the lawful currency of the United States.

 

“DollarEquivalent” means, at any time, (a) with respect to any amount denominatedin Dollars, such amount, and (b) with respect to any amount denominated in anyAlternative Currency, the equivalent amount thereof in Dollars as determined bythe Administrative Agent or the L/C Issuer, as the case may be, at such time onthe basis of the Spot Rate (determined in respect of the most recentRevaluation Date) for the purchase of Dollars with such Alternative Currency.

 

“Domestic Subsidiary”means any Subsidiary that is organized under the laws of any state of theUnited States or the District of Columbia.

 

“Eligible Assignee”means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d)any other Person (other than a natural person) approved by (i) theAdministrative Agent, the L/C Issuer and the Swingline Lender and (ii) unlessan Event of Default has occurred and is continuing, the Borrower (each suchapproval not to be unreasonably withheld or delayed); provided thatnotwithstanding the foregoing, “Eligible Assignee” shall not include theBorrower or any of the Borrower’s Affiliates or Subsidiaries; and providedfurther that an Eligible Assignee shall include only a Lender, anAffiliate of a Lender, an Approved Fund or another Person which, through itsLending Offices, is capable of lending the applicable Alternative Currencies tothe Borrower without the imposition of any Taxes or additional Taxes, as thecase may be.

 

“EMU” means theeconomic and monetary union in accordance with the Treaty of Rome 1957, asamended by the Single European Act 1986, the Maastricht Treaty of 1992 and theAmsterdam Treaty of 1998, as amended from time to time.

 

“EMU Legislation”means the legislative measures of the European Council for the introduction of,changeover to or operation of a single or unified European currency (whetherknown as the “euro” or otherwise).

 

“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 governmentalrestrictions relating to pollution and the protection of the environment or therelease of any materials into the environment, including those related tohazardous substances or wastes, air emissions and discharges to waste or publicsystems.

 

“Equity Transaction”means, with respect to any member of the Consolidated Group, any issuance orsale of shares of its Capital Stock, other than an issuance (a) to a member ofthe Consolidated Group, (b) in connection with the exercise by a present orformer employee, officer or director under a stock incentive plan, stock optionplan or other equity-based compensation plan or arrangement or (c) in connectionwith any Acquisition or joint venture arrangement.

 

“ERISA” means theEmployee Retirement Income Security Act of 1974.

 

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

 

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“ERISA Event”means (a) a Reportable Event with respect to a Pension Plan; (b) awithdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subjectto Section 4063 of ERISA during a plan year in which it was a substantialemployer (as defined in Section 4001(a)(2) of ERISA) or a cessation ofoperations that is treated as such a withdrawal under Section 4062(e) ofERISA; (c) a complete or partial withdrawal by the Borrower or any ERISAAffiliate from a Multiemployer Plan or notification that a Multiemployer Planis in reorganization; (d) the filing of a notice of intent to terminate,the treatment of a Plan amendment as a termination under Sections 4041 or4041A of ERISA, or the commencement of proceedings by the PBGC to terminate aPension Plan or Multiemployer Plan; (e) an event or condition that wouldreasonably be expected to constitute grounds under Section 4042 of ERISAfor the termination of, or the appointment of a trustee to administer, anyPension Plan or Multiemployer Plan; or (f) the imposition of any liabilityunder Title IV of ERISA, other than for PBGC premiums due but notdelinquent under Section 4007 of ERISA, upon the Borrower or any ERISAAffiliate.

 

“Euro” and “€”mean the lawful currency of the Participating Member States introduced inaccordance with the EMU Legislation.

 

“Eurocurrency Rate”means for any Interest Period with respect to a Eurocurrency Rate Loan:

the applicable ScreenRate for such Interest Period; or, if the applicable Screen Rate shall notbe available, the rate per annum determined by the Administrative Agent as therate of interest at which deposits in the relevant currency for delivery on thefirst day of such Interest Period in Same Day Funds in the approximate amountof the Eurocurrency Rate Loan being made, continued or converted by Bank ofAmerica and with a term equivalent to such Interest Period would be offered byBank of America’s London Branch (or other Bank of America branch or Affiliate)to major banks in the London or other offshore interbank market for suchcurrency at their request at approximately 4:00 p.m. (London time) two BusinessDays prior to the first day of such Interest Period.

 

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

 

“Eurocurrency RateLoan” means a Loan that bears interest at a rate based on the EurocurrencyRate.

 

“Eurocurrency ReservePercentage” means, for any day during any Interest Period, the reservepercentage (expressed as a decimal, carried out to five decimal places) ineffect on such day, whether or not applicable to any Lender, under regulationsissued from time to time by the FRB for determining the maximum reserverequirement (including any emergency, supplemental or other marginal reserverequirement) with respect to eurocurrency funding (currently referred to as“eurocurrency liabilities”).  TheEurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjustedautomatically as of the effective date of any change in the EurocurrencyReserve Percentage.

 

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

 

“Excluded Taxes”means, with respect to the Administrative Agent, any Lender, the L/C Issuer orany other recipient of any payment to be made by or on account of anyobligation of the Borrower hereunder, (a) taxes imposed on or measured by itsoverall net income (however denominated), and franchise taxes imposed on it (inlieu of net income taxes), (b) any branch profits taxes imposed by the UnitedStates or any similar tax imposed by any other jurisdiction in which theBorrower is subject to tax

 

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and (c) in the case of aForeign Lender (other than an assignee pursuant to a request by the Borrowerunder Section 10.13), any withholding tax that is imposed on amountspayable to such Foreign Lender at the time such Foreign Lender becomes a partyhereto (or designates a new Lending Office) or is attributable to such ForeignLender’s failure or inability (other than as a result of a change in law followingthe time at which such Foreign Lender becomes a Lender hereunder) to complywith Section 3.01(e), except to the extent that such Foreign Lender (orits assignor, if any) was entitled, at the time of designation of a new LendingOffice (or assignment), to receive additional amounts from the Borrower withrespect to such withholding tax pursuant to Section 3.01(a).

 

“ExtraordinaryReceipts” means the receipt by any member of the Consolidated Group of anytax refunds, indemnity payments or pension reversions.

 

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

 

“Fee Letter” meansthe letter agreement, dated April 15, 2004, among the Borrower, theAdministrative Agent and the Arranger.

 

“Foreign Lender”means, with respect to the Borrower, any Lender that is not a “United Statesperson” as defined by Section 7701(a)(30) of the Internal Revenue Code.

 

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

 

“Fund” meansany Person (other than a natural person) engaged in making, purchasing, holdingor otherwise investing in commercial loans and similar extensions of credit inthe ordinary course of its business.

 

“Funded Debt”means, as to any Person at a particular time, without duplication, all of thefollowing, whether or not included as indebtedness or liabilities in accordancewith GAAP:

 

(a)                                  allobligations for borrowed money, whether current or long-term (including theObligations hereunder), and all obligations evidenced by bonds, debentures,notes, loan agreements or other similar instruments;

 

(b)                                 allpurchase money indebtedness, including indebtedness and obligations in respectof conditional sales and title retention arrangements and the deferred purchaseprice of property or services, but excluding customary conditional sales andtitle retention arrangements with suppliers that are entered into in theordinary course of business and trade accounts payable incurred in the ordinarycourse of business and payable on customary trade terms;

 

(c)                                  allstandby letters of credit or acceptances or bank guaranties issued or createdfor the account of such Person (excluding all performance or commercial lettersof credit and performance bank guaranties);

 

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(d)                                 theAttributable Principal Amount of capital leases and Synthetic Leases;

 

(e)                                  theAttributable Principal Amount of Securitization Transactions;

 

(f)                                    allpreferred stock and comparable equity interests providing for mandatoryredemption, sinking fund or other like payments;

 

(g)                                 SupportObligations in respect of Funded Debt of another Person;

 

(h)                                 FundedDebt of any partnership or joint venture or other similar entity in which suchPerson is a general partner or joint venturer, and, as such, has personalliability for such obligations, but only to the extent there is recourse tosuch Person for payment thereof.

 

For purposes hereof, theamount of Funded Debt shall be determined (i) based on the outstandingprincipal amount in the case of borrowed money indebtedness under clause (a)and purchase money indebtedness under clause (b), (ii) based on themaximum amount available to be drawn in the case of letter of creditobligations and the other obligations under clause (c), and (iii) basedon the amount of Funded Debt that is the subject of the Support Obligations inthe case of Support Obligations under clause (g).

 

“GAAP” meansgenerally accepted accounting principles in effect in the United States as setforth in the opinions and pronouncements of the Accounting Principles Board andthe American Institute of Certified Public Accountants and statements andpronouncements of the Financial Accounting Standards Board from time to timeapplied on a consistent basis, subject to the provisions of Section 1.03.

 

“GovernmentalAuthority” means any nation or government, any state or other politicalsubdivision thereof, and any agency, authority, instrumentality, regulatorybody, court, administrative tribunal, central bank or other entity exercisingexecutive, legislative, judicial, taxing, regulatory or administrative powersor functions of or pertaining to government.

 

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

 

“Honor Date” hasthe meaning provided in Section 2.03(c)(i).

 

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

 

(a)                                  allFunded Debt;

 

(b)                                 netobligations under any Swap Contract;

 

(c)                                  SupportObligations in respect of Indebtedness of another Person; and

 

(d)                                 Indebtednessof any partnership or joint venture or other similar entity in which such Personis a general partner or joint venturer, and, as such, has personal liabilityfor such obligations, but only to the extent there is recourse to such Personfor payment thereof.

 

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For purposes hereof, theamount of Indebtedness shall be determined (i) based on Swap Termination Valuein the case of net obligations under Swap Contracts under clause (b) and(ii) based on the outstanding principal amount of the Indebtedness that is thesubject of the Support Obligations in the case of Support Obligations underclause (c).

 

“Indemnified Taxes”means Taxes other than Excluded Taxes.

 

“Indemnitees” hasthe meaning provided in Section 10.04(b).

 

“Information” hasthe meaning provided in Section 10.07.

 

“Interest Payment Date”means, (a) as to any Base Rate Loan (including Swingline Loans), the firstBusiness Day after the end of each March, June, September and December,commencing June 30, 2004 and the Revolving Termination Date and, in the case ofany Swingline Loan, also the date of demand for repayment by the SwinglineLender, and (b) as to any Eurocurrency Rate Loan, the last Business Day of eachInterest Period for such Loan, the date of repayment of principal of such Loanand the Revolving Termination Date, and in addition, where the applicableInterest Period exceeds three (3) months, the date every three (3) months afterthe beginning of such Interest Period. If an Interest Payment Date falls on a date that is not a Business Day,such Interest Payment Date shall be deemed to be the immediately succeedingBusiness Day.

 

“Interest Period”means, as to each Eurocurrency Rate Loan, the period commencing on the datesuch Eurocurrency Rate Loan is disbursed or converted to or continued as aEurocurrency Rate Loan and ending on the date one (1), two (2), three (3), six(6)****or twelve (12) months thereafter, asselected (subject to availability) by the Borrower in its Loan Notice; providedthat:

 

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

 

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

 

(c)                                  noInterest Period with respect to any Revolving Loan shall extend beyond theRevolving Termination Date.

 

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

 

“Investment”means, as to any Person, any direct or indirect acquisition or investment bysuch Person, whether by means of (a) the purchase or other acquisition ofCapital Stock of another Person, (b) a loan, advance or capitalcontribution to, guaranty or assumption of debt of, or purchase or otheracquisition of any other debt or equity participation or interest in, anotherPerson, including any partnership or joint venture interest in such otherPerson, or (c) the purchase or other acquisition (in one transaction or aseries of transactions) of assets of another Person that constitute a businessunit.  For purposes of covenantcompliance, the amount of any Investment shall be the amount actually invested,without adjustment for subsequent increases or decreases in the value of suchInvestment.

 

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“IRS” means theUnited States Internal Revenue Service.

 

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

 

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

 

“Laws” means,collectively, all international, foreign, federal, state and local statutes,treaties, rules, guidelines, regulations, ordinances, codes and administrativeor judicial precedents or authorities, including the interpretation oradministration thereof by any Governmental Authority charged with theenforcement, interpretation or administration thereof, and all applicableadministrative orders, directed duties, licenses, authorizations and permitsof, and agreements with, any Governmental Authority.

 

“L/C Advance”means, with respect to each Lender, such Lender’s funding of its participationin any L/C Borrowing.

 

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

 

“L/C Borrowing”means any extension of credit resulting from a drawing under any Letter ofCredit that has not been reimbursed or refinanced as a Borrowing of RevolvingLoans.

 

“L/C Commitment”means, with respect to the L/C Issuer, the commitment of the L/C Issuer toissue and to honor payment obligations under Letters of Credit, and, withrespect to each Lender, the commitment of such Lender to purchase participationinterests in L/C Obligations up to such Lender’s Revolving CommitmentPercentage thereof.

 

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

 

“L/C Expiration Date”means the day that is seven days prior to the Revolving Termination Date thenin effect (or, if such day is not a Business Day, the immediately precedingBusiness Day).

 

“L/C Issuer” meansBank of America in its capacity as issuer of Letters of Credit hereunder,****together with its successors in such capacity.

 

“L/C Obligations”means, at any time, the sum of (a) the maximum amount available to be drawnunder Letters of Credit then outstanding, assuming compliance with allrequirements for drawings referenced therein, plus (b) the aggregate amount ofall Unreimbursed Amounts, including L/C Borrowings.  For all purposes of this Credit Agreement, ifon any date of determination a Letter of Credit has expired by its terms butany amount may still be drawn thereunder by reason of the operation of Rule3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” inthe amount so remaining available to be drawn.

 

“L/C Sublimit” hasthe meaning provided in Section 2.01(b).

 

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“Lender” meanseach of the Persons identified as a “Lender” on the signature pages hereto(and, as appropriate, includes the L/C Issuer and the Swingline Lender), thosePersons who become Lenders pursuant to Section 2.01(d) and Persons who,pursuant to the terms of this Credit Agreement, become successors and assignsof the foregoing.

 

“Lender Joinder Agreement”means a joinder agreement, substantially in the form of Exhibit 2.01(d),executed and delivered in accordance with the provisions of Section 2.01(d).

 

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

 

“Letter of Credit”means each commercial and standby****letter ofcredit issued hereunder.  Letters of Creditmay be issued in Dollars or in an Alternative Currency.

 

“Letter of CreditApplication” means an application and agreement for the issuance oramendment of a Letter of Credit in the form from time to time in use by the L/CIssuer.

 

“Letter of Credit Fee”has the meaning provided in Section 2.09(d)(i).

 

“Letter of CreditUsage” means, as at any date of determination, the aggregate undrawn faceamount of outstanding Letters of Credit plus the aggregate amount of alldrawings under the Letters of Credit not reimbursed by the Borrower orconverted into Committed Loans.

 

“Lien” means anymortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,lien (statutory or other), charge, or preference, priority or other securityinterest or preferential arrangement of any kind or nature whatsoever(including any conditional sale or other title retention agreement, and anyfinancing lease having substantially the same economic effect as any of theforegoing).

 

“Loan” means anyRevolving Loan and Swingline Loan and the Base Rate Loans and Eurocurrency RateLoans comprising such Loans.

 

“Loan Notice”means a notice of (a) a Borrowing of Loans (including Swingline Loans), (b) aconversion of Loans from one Type to the other, or (c) a continuation of EurocurrencyRate Loans, which, if in writing, shall be substantially in the form of Exhibit2.02.

 

“Mandatory Cost Rate”means, with respect to any period, a rate per annum determined in accordancewith Schedule 3.03.

 

“Mandatory CostReference Lender” means Bank of America.

 

“Material AdverseEffect” means a material adverse effect upon (a) the financial condition,operations or properties of the Consolidated Group taken as a whole,(b) the ability of the Borrower to perform in any material respect under anyCredit Document or (c) the validity or enforceability against the Borrower ofany Credit Document.

 

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

 

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

 

“Notes” means theRevolving Notes.

 

“Obligations”means, without duplication, (a) all advances to, and debts, liabilities,obligations, covenants and duties of, the Borrower arising under any CreditDocument or otherwise with respect to any Loan or Letter of Credit, whetherdirect or indirect (including those acquired by assumption), absolute orcontingent, due or to become due, now existing or hereafter arising andincluding interest and fees that accrue after the commencement by or againstthe Borrower or any other member of the Consolidated Group of any proceedingunder any Debtor Relief Laws naming such Person as the debtor in suchproceeding, regardless of whether such interest and fees are allowed claims insuch proceeding and (b) solely for the purposes of Sections 7.01 and 8.03hereof and the definition of Permitted Funded Debt hereunder, all obligationsunder any Swap Contract between the Borrower and any Lender or Affiliate of aLender to the extent permitted hereunder.

 

“Organization Documents”means, (a) with respect to any corporation, the certificate or articles ofincorporation and the bylaws (or equivalent or comparable constitutivedocuments with respect to any non-U.S. jurisdiction); (b) with respect toany limited liability company, the certificate or articles of formation ororganization and operating agreement; and (c) with respect to anypartnership, joint venture, trust or other form of business entity, thepartnership, joint venture or other applicable agreement of formation or organizationand any agreement, instrument, filing or notice with respect thereto filed inconnection with its formation or organization with the applicable GovernmentalAuthority in the jurisdiction of its formation or organization and, ifapplicable, any certificate or articles of formation or organization of suchentity.

 

“Other Taxes”means all present or future stamp or documentary taxes or any other excise orproperty taxes, charges or similar levies arising from any payment madehereunder or under any other Credit Document or from the execution, delivery orenforcement of, or otherwise with respect to, this Credit Agreement or anyother Credit Document; provided that the term “Other Taxes” shall notinclude Excluded Taxes.

 

“Outstanding Amount”means (a) with respect to Revolving Loans and Swingline Loans on any date,the Dollar Equivalent of the aggregate outstanding principal amount thereofafter giving effect to any Borrowings and prepayments or repayments ofRevolving Loans and Swingline Loans, as the case may be, occurring on such dateand (b) with respect to any L/C Obligations on any date, the DollarEquivalent of the amount of such L/C Obligations on such date after givingeffect to any L/C Credit Extension occurring on such date and any other changesin the aggregate amount of the L/C Obligations as of such date, including as aresult of any reimbursements of outstanding unpaid drawings under any Lettersof Credit or any reductions in the maximum amount available to be drawn underLetters of Credit taking effect on such date.

 

“OutstandingObligations” means, as of any date, and giving effect to making anyExtensions of Credit requested on such date and all payments, repayments andprepayments made on such date, (a) when reference is made to all Lenders, thesum of (i) the aggregate outstanding principal amount of all Loans and (ii) allLetter of Credit Usage, and (b) when reference is made to one Lender, the sumof (i) the aggregate outstanding principal amount of all Loans made by suchLender, (ii) such Lender’s ratable risk participation in all Letter of CreditUsage and (iii) such Lender’s ratable risk participation in all SwinglineLoans.

 

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

 

“Parent” shallmean Sabre Holdings Corporation, a Delaware corporation.

 

“Participant” hasthe meaning provided in Section 10.06(d).

 

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

 

“PBGC” means thePension Benefit Guaranty Corporation.

 

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

 

“Permitted Funded Debt”means (a) any Support Obligation of a Subsidiary in respect of Funded Debt ofthe Parent (or any other member of the Consolidated Group) if the obligor undersuch Support Obligation enters into the same (or equivalent) Support Obligationin respect of the Obligations and (b) any Funded Debt owed by any Subsidiary tothe Borrower or any other Subsidiary.

 

“PermittedSecuritization Transaction” shall mean any Securitization Transaction; providedthat such Securitization Transaction (a) is in a principal amount not exceeding$400 million and (b) is either (i) nonrecourse to the Borrower and itsSubsidiaries and is on market terms and conditions or (ii) (A) theAdministrative Agent shall be reasonably satisfied with the structure anddocumentation for any such transaction and that the terms of such transactionentered into after the Closing Date, including the discount applicable to thereceivables which are the subject of such financing and any termination events,shall be (in the good faith understanding of the Administrative Agent)consistent with those prevailing in the market at the time of commitmentthereto for similar transactions involving a receivables originator/servicer ofsimilar credit quality and a receivables pool or other similar characteristicsand (B) the documentation for such transaction shall not be amended or modifiedin a way which is materially detrimental to the Lenders hereunder without theprior written approval of the Administrative Agent and the Required Lenders.

 

“Person” means anynatural 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 inSection 3(3) of ERISA) established by the Borrower or, with respect to anysuch plan that is subject to Section 412 of the Internal Revenue Code orTitle IV of ERISA, any ERISA Affiliate.

 

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“Property” meansan interest of any kind in any property or asset, whether real, personal ormixed, and whether tangible or intangible.

 

“Rating Services”means S&P and Moody’s.

 

“Register” has themeaning provided in Section 10.06(c).

 

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

 

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

 

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

 

“Required Lenders”means, as of any date of determination, Lenders having more than fifty percent(50%) of the Aggregate Revolving Commitments or, if the Commitments shall haveexpired or been terminated, Lenders holding in the aggregate more than 50% ofthe Revolving Obligations (including, in each case, the aggregate amount ofeach Lender’s risk participation and funded participation in L/C Obligationsand Swingline Loans); provided that the commitments of, and the portionof the Revolving Obligations held or deemed held by, any Defaulting Lendershall be excluded for purposes of making a determination of Required Lenders.

 

“Requirements of Law”means, as to any Person, any law, treaty, rule, regulation or ordinance(including, Environmental Laws) or determination of an arbitrator or a court orother Governmental Authority, in each case applicable to or binding upon suchPerson or to which any of its material property is subject.

 

“Responsible Officer”means the chief executive officer, president, chief financial officer,corporate secretary (except with regard to the execution of a ComplianceCertificate), treasurer or assistant treasurer of the Borrower.  Any document delivered hereunder that is signedby a Responsible Officer of the Borrower shall be conclusively presumed to havebeen authorized by all necessary corporate, partnership and/or other action onthe part of the Borrower and such Responsible Officer shall be conclusivelypresumed to have acted on behalf of the Borrower.

 

“Restricted FundedDebt” means any Funded Debt of a Subsidiary other than Permitted FundedDebt.

 

“Restricted Payment”means any dividend or other distribution (whether in cash, securities or otherproperty) with respect to any Capital Stock of any member of the ConsolidatedGroup, or any payment (whether in cash, securities or other property),including any sinking fund or similar deposit, on account of the purchase,redemption, retirement, acquisition, cancellation or termination of any suchCapital Stock or of any option, warrant or other right to acquire any suchCapital Stock.

 

“Revaluation Date”means (a) with respect to any Loan, each of the following: (i) each date of aBorrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,(ii) each date of a continuation of a Eurocurrency Rate Loan denominated in anAlternative Currency pursuant to Section 2.02 and (iii) suchadditional dates as the Administrative Agent or the Required Lenders shall

 

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specify and (b) withrespect to any Letter of Credit, each of the following: (i) each date ofissuance of a Letter of Credit Denominated in an Alternative Currency, (ii)each date of an amendment of any such Letter of Credit having the effect ofincreasing the amount thereof (solely with respect to the increased amount),(iii) each date of any payment by the L/C Issuer under any Letter of Creditdenominated in an Alternative Currency and (iv) such additional dates as theAdministrative Agent or the Required Lenders shall specify.

 

“Revolving Commitment”means the commitment of each Lender to make Revolving Loans (and to share inRevolving Obligations) hereunder.

 

“Revolving CommitmentPercentage” means, at any time for each Lender, a fraction (expressed as apercentage carried to the ninth decimal place), the numerator of which is suchLender’s Revolving Committed Amount and the denominator of which is theAggregate Revolving Committed Amount. The initial Revolving Commitment Percentages are set out in Schedule2.01.

 

“Revolving CommittedAmount” means, with respect to each Lender, the amount of such Lender’sRevolving Commitment.  The initialRevolving Committed Amounts are set out in Schedule 2.01.

 

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

 

“Revolving Notes”means (a) the promissory notes, if any, given to evidence the Revolving Loans,as amended, restated, modified, supplemented, extended, renewed or replaced and(b) the Swingline Note.  A form ofRevolving Note is attached as Exhibit 2.13-1.

 

“Revolving Obligations”means the Revolving Loans, the L/C Obligations and the Swingline Loans.

 

“Revolving TerminationDate” means June 15, 2009.

 

“S&P” meansStandard & Poor’s Ratings Services, a division of The McGraw-HillCompanies, Inc. and any successor thereto.

 

“Sale and LeasebackTransaction” means, with respect to the Borrower or any Subsidiary, anyarrangement, directly or indirectly, with any Person (other than the Borrower)whereby the Borrower or such Subsidiary shall sell or transfer any property,real or personal, used or useful in its business, whether now owned orhereafter acquired, and thereafter rent or lease such property or otherproperty that it intends to use for substantially the same purpose or purposesas the property being sold or transferred.

 

“Same Day Funds”means (a) with respect to disbursements and payments in Dollars, immediatelyavailable funds, and (b) with respect to disbursements and payments in anAlternative Currency, same day or other funds as may be determined by theAdministrative Agent or the L/C Issuer to be customary in the place ofdisbursement or payment for the settlement of international bankingtransactions in the relevant Alternative Currency.

 

“Screen Rate”means, for any Interest Period:

 

(a)                                            therate per annum equal to the rate determined by the Administrative Agent to bethe offered rate that appears on the page of the Dow Jones Market Service(formerly known as Telerate) screen (or any successor thereto) that displays anaverage British Bankers Association

 

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Interest Settlement Ratefor deposits in the relevant currency (for delivery on the first day of suchInterest Period) with a term equivalent to such Interest Period, determined asof approximately 11:00 a.m. (London time) two (2) Business Days prior to thefirst day of such Interest Period; or

 

(b)                               ifthe rate referenced in the preceding clause (a) does not appear on such page orservice or such page or service shall cease to be available, the rate per annumequal to the rate determined by the Administrative Agent to be the offered rateon such other page or other service that displays an average British BankersAssociation Interest Settlement Rate for deposits in the relevant currency (fordelivery on the first day of such Interest Period) with a term equivalent tosuch Interest Period, determined as of approximately 11:00 a.m. (London time)two (2) Business Days prior to the first day of such Interest Period.

 

“SEC” means theSecurities and Exchange Commission, or any Governmental Authority succeeding toany of its principal functions.

 

“SecuritizationTransaction” means any financing or factoring or similar transaction (orseries of such transactions) entered by any member of the Consolidated Grouppursuant to which such member of the Consolidated Group may sell, convey orotherwise transfer, or grant a security interest in, accounts, payments,receivables, rights to future lease payments or residuals or similar rights topayment (the “Securitization Receivables”) to a special purposesubsidiary or affiliate (a “Securitization Subsidiary”) or any otherPerson.

 

“Special NoticeCurrency” means any Alternative Currency other than the currency of acountry that is a member of the Organization for Economic Cooperation andDevelopment at such time located in North America or Europe.

 

“Spot Rate” for acurrency means the rate determined by the Administrative Agent or the L/CIssuer, as applicable, to be the rate quoted by the Person acting in suchcapacity as the spot rate for the purchase by such Person of such currency withanother currency through its principal foreign exchange trading office atapproximately 11:00 a.m. on the date two (2) Business Days prior to the date asof which the foreign exchange computation is made; provided**that the Administrative Agent or the L/C Issuer may obtainsuch spot rate from another financial institution designated by theAdministrative Agent or the L/C Issuer if the Person acting in such capacitydoes not have as of the date of determination a spot buying rate for any suchcurrency; and providedfurther that the L/C Issuer may use suchspot rate quoted on the date as of which the foreign exchange computation ismade in the case of any Letter of Credit denominated in an AlternativeCurrency.

 

“Subsidiary” of aPerson means a corporation, partnership, joint venture, limited liabilitycompany or other business entity of which a majority of the shares ofsecurities or other interests having ordinary voting power for the election ofdirectors or other governing body (other than securities or interests havingsuch power only by reason of the happening of a contingency) are at the timebeneficially owned, or the management of which is otherwise controlled, directly,or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise provided, “Subsidiary” shallrefer to a Subsidiary of the Borrower. Notwithstanding the foregoing, the parties hereto acknowledge and agreethat neither Sabre Sociedad Technologica S.A. de CV nor its current or futuresubsidiaries is a Subsidiary of the Borrower.

 

“Support Obligations”means, as to any Person, any (a) any obligation, contingent or otherwise,of such Person guaranteeing or having the economic effect of guaranteeing anyIndebtedness or Funded Debt payable by another Person (the “primary obligor”)in any manner, whether directly or indirectly, and

 

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including any obligationof such Person, direct or indirect, (i) to purchase or pay (or advance orsupply funds for the purchase or payment of) such Indebtedness or Funded Debt,(ii) to purchase or lease property, securities or services for the purposeof assuring the obligee in respect of such Indebtedness or Funded Debt of thepayment or performance of such Indebtedness or Funded Debt, (iii) tomaintain working capital, equity capital or any other financial statementcondition or liquidity or level of income or cash flow of the primary obligorso as to enable the primary obligor to pay such Indebtedness or Funded Debt, or(iv) entered into for the purpose of assuring in any other manner theobligee in respect of such Indebtedness or Funded Debt of the payment orperformance thereof or to protect such obligee against loss in respect thereof(in whole or in part), or (b) any Lien on any assets of such Personsecuring any Indebtedness or Funded Debt of any other Person, whether or notsuch Indebtedness or Funded Debt is assumed by such Person.  The amount of any Support Obligations shallbe deemed to be an amount equal to the stated or determinable amount of therelated primary obligation, or portion thereof, in respect of which suchSupport Obligation is made or, if not stated or determinable, the maximum reasonablyanticipated liability in respect thereof as determined by the guaranteeingPerson in good faith.

 

“Swap Contract”means (a) any and all rate swap transactions, basis swaps, creditderivative transactions, forward rate transactions, commodity swaps, commodityoptions, forward commodity contracts, equity or equity index swaps or options,bond or bond price or bond index swaps or options or forward bond or forwardbond price or forward bond index transactions, interest rate options, forwardforeign exchange transactions, cap transactions, floor transactions, collartransactions, currency swap transactions, cross-currency rate swaptransactions, currency options, spot contracts, or any other similartransactions or any combination of any of the foregoing (including any optionsto enter into any of the foregoing), whether or not any such transaction isgoverned by or subject to any master agreement, and (b) any and alltransactions of any kind, and the related confirmations, that are subject tothe terms and conditions of, or governed by, any form of master agreementpublished by the International Swaps and Derivatives Association, Inc., anyInternational Foreign Exchange Master Agreement, or any other master agreement(any such master agreement, together with any related schedules, a “MasterAgreement”), including any such obligations or liabilities under any MasterAgreement.

 

“Swap TerminationValue” means, in respect of any one or more Swap Contracts, after takinginto account the effect of any legally enforceable netting agreement relatingto such Swap Contracts, (a) for any date on or after the date such SwapContracts have been closed out and termination values determined in accordancetherewith, such termination values, and (b) for any date prior to the datereferenced in clause (a), the amounts determined as themark-to-market values for such Swap Contracts, as determined based upon one ormore mid-market or other readily available quotations provided by anyrecognized dealer in such Swap Contracts (which may include a Lender or anyAffiliate of a Lender).

 

“Swingline Borrowing”means a borrowing of a Swingline Loan pursuant to Section 2.01(c).

 

“Swingline Commitment”means, with respect to the Swingline Lender, the commitment of the SwinglineLender to make Swingline Loans, and with respect to each Lender, the commitmentof such Lender to purchase participation interests in Swingline Loans.

 

“Swingline Lender”means Bank of America in its capacity as such, together with any successor insuch capacity.

 

“Swingline Loan”has the meaning provided in Section 2.01(c).

 

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“Swingline Note”means the promissory note given to evidence the Swingline Loans, as amended,restated, modified, supplemented, extended, renewed or replaced.  A form of Swingline Note is attached as Exhibit2.13-2.

 

“Swingline Sublimit”has the meaning provided in Section 2.01(c).

 

“Synthetic Lease”means any synthetic lease, tax retention operating lease, off-balance sheetloan or similar off-balance sheet financing arrangement that is consideredborrowed money indebtedness for tax purposes but is classified as an operatinglease under GAAP.

 

“TARGET Day” meansany day on which the Trans-European Automated Real-time Gross SettlementExpress Transfer (TARGET) payment system (or, if such payment system ceases tobe operative, such other payment system (if any) determined by theAdministrative Agent to be a suitable replacement) is open for the settlementof payments in Euro.

 

“Taxes” means allpresent 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.

 

“Type” means, withrespect to any Revolving Loan, its character as a Base Rate Loan or aEurocurrency Rate Loan.

 

“Unfunded PensionLiability” means the excess of a Pension Plan’s “Accumulated BenefitObligation”, determined as of a required measurement date in accordance withthe Financial Accounting Standards Board Statement No. 87, over the fair marketvalue of that Pension Plan’s assets as of such measurement date.

 

“United States” or“U.S.” means the United States of America.

 

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

 

“Utilization Fee”has the meaning provided in Section 2.09(b).

 

“Yen” or “¥”means the lawful currency of Japan.

 

## **1.02**                        InterpretiveProvisions.

## ** **

With reference to thisCredit Agreement and each other Credit Document, unless otherwise providedherein or in such other Credit Document:

 

(a)                                  Themeanings of defined terms are equally applicable to the singular and pluralforms of the defined terms.

 

(b)                                 (i)                                     Thewords “herein,” “hereto,” “hereof” and “hereunder”and words of similar import when used in any Credit Document shall refer tosuch Credit Document as a whole and not to any particular provision thereof.

 

(ii)                                  Unless otherwiseprovided or required by context, Article, Section, Exhibit andSchedule references are to the Credit Document in which such referenceappears.

 

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(iii)                               The term “including”is by way of example or clarification, and not limitation.

 

(iv)                              The term “documents”includes any and all instruments, documents, agreements, certificates, notices,reports, financial statements and other writings, however evidenced, whether inphysical or electronic form.

 

(c)                                  Inthe computation of periods of time from a specified date to a later specifieddate, 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.”

 

(d)                                 Sectionheadings herein and in the other Credit Documents are included for convenienceof reference only and shall not affect the interpretation of this CreditAgreement or any other Credit Document.

 

## **1.03**                        Accounting Terms and Provisions.

 

(a)                                  Allaccounting terms not specifically or completely defined herein shall beconstrued in conformity with, and all financial data (including financial ratiosand other financial calculations) required to be submitted pursuant to thisCredit Agreement shall be prepared in conformity with, GAAP applied on aconsistent basis, as in effect from time to time, applied in a mannerconsistent with that used in preparing the audited financial statementsreferenced in Section 5.11, except as otherwise specificallyprescribed herein.

 

(b)                                 Ifat any time any change in GAAP or in the consistent application thereof wouldaffect the computation of any financial ratio or requirement set forth in anyCredit Document, and either the Borrower or the Required Lenders shall objectin writing to determining compliance based on such change, then suchcomputations shall continue to be made on a basis consistent with the most recentfinancial statements filed by the Parent with the SEC as to which no suchobjection has been made.

 

## **1.04**                        Rounding.

## ** **

Any financial ratiosrequired to be maintained by the Borrower pursuant to this Credit Agreementshall be calculated by dividing the appropriate component by the othercomponent, carrying the result to one place more than the number of places bywhich such ratio is expressed herein and rounding the result up or down to thenearest number (with a rounding-up if there is no nearest number).

 

## **1.05**                        References to Agreements and Laws.

## ** **

Unless otherwiseexpressly provided herein, (a) references to Organization Documents,agreements (including the Credit Documents) and other contractual instrumentsshall be deemed to include all subsequent amendments, restatements, extensions,supplements and other modifications thereto, but only to the extent that suchamendments, restatements, extensions, supplements and other modifications arenot prohibited by any Credit Document; and (b) references to any Law shallinclude all statutory and regulatory provisions consolidating, amending,replacing, supplementing or interpreting such Law.

 

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## **1.06**                        Times of Day.

## ** **

Unless otherwiseprovided, all references herein to times of day shall be references to Easterntime (daylight or standard, as applicable).

 

## **1.07**                        Letter of Credit Amounts.

## ** **

                                                Unlessotherwise specified, all references herein to the amount of a Letter of Creditat any time shall be deemed to mean the Dollar Equivalent of the maximum faceamount of such Letter of Credit after giving effect to all increases thereofcontemplated by such Letter of Credit or the Issuer Documents related thereto,whether or not such maximum face amount is in effect at such time.

 

## **1.08**                        Exchange Rates; Currency Equivalents.

 

(a)                                  TheAdministrative Agent or the L/C Issuer shall determine the Spot Rates as ofeach Revaluation Date to be used for calculating Dollar Equivalent amounts ofCredit Extensions and Outstanding Amounts denominated in AlternativeCurrencies.  Such Spot Rates shall becomeeffective as of such Revaluation Date and shall be the Spot Rates employed inconverting any amounts between the applicable currencies until the nextRevaluation Date to occur.  Except forpurposes of financial statements delivered by the Borrower hereunder,calculating financial covenants hereunder and as otherwise provided herein, theapplicable amount of any currency for purposes of the Credit Documents shall besuch Dollar Equivalent amount as so determined by the Administrative Agent orthe L/C Issuer.

 

(b)                                 Whereverin this Credit Agreement in connection with a Borrowing, conversion,continuation or prepayment of a Loan, or a Letter of Credit, an amount, such asa required minimum or multiple amount, is expressed in Dollars, but suchBorrowing, Loan or Letter of Credit is denominated in an Alternative Currency,such amount shall be the relevant Alternative Currency Equivalent of suchDollar amount (rounded to the nearest 1,000 units of such AlternativeCurrency), as determined by the Administrative Agent or the L/C Issuer.

 

## **1.09**                        Additional Alternative Currencies.

## ** **

(a)                                  TheBorrower may from time to time request that Eurocurrency Rate Loans be madeand/or Letters of Credit be issued in a currency other than those specificallylisted in the definition of “Alternative Currency”; provided that suchrequested currency is a lawful currency (other than Dollars) that is readilyavailable and freely transferable and convertible into Dollars.  In the case of any such request with respectto the making of Eurocurrency Rate Loans, such request shall be subject to theapproval of the Administrative Agent and the Lenders; and in the case of anysuch request with respect to the issuance of Letters of Credit, such requestshall be subject to the approval of the Administrative Agent and the L/CIssuer.

 

(b)                                 Anysuch request shall be made to the Administrative Agent not later than 11:00a.m., ten Business Days prior to the date of the desired Credit Extension (orsuch other time or date as may be agreed by the Administrative Agent and, inthe case of any such request pertaining to Letters of Credit, the L/C Issuer,in its or their sole discretion).  In thecase of any such request pertaining to Eurocurrency Rate Loans, theAdministrative Agent shall promptly notify each Lender thereof; and in the caseof any such request pertaining to Letters of Credit, the Administrative Agentshall promptly notify the L/C Issuer thereof. Each Lender (in the case of any such request pertaining to EurocurrencyRate Loans) or the L/C Issuer (in the case of a request pertaining to Lettersof Credit) shall notify the Administrative Agent, not

 

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later than 11:00 a.m.,five Business Days after receipt of such request whether it consents, in itssole discretion, to the making of Eurocurrency Rate Loans or the issuance ofLetters of Credit, as the case may be, in such requested currency.

 

(c)                                  Anyfailure by a Lender or the L/C Issuer, as the case may be, to respond to suchrequest within the time period specified in the preceding sentence shall bedeemed to be a refusal by such Lender or the L/C Issuer, as the case may be, topermit Eurocurrency Rate Loans to be made or Letters of Credit to be issued insuch requested currency.  If theAdministrative Agent and all the Lenders consent to making Eurocurrency RateLoans in such requested currency, the Administrative Agent shall so notify theBorrower and such currency shall thereupon be deemed for all purposes to be anAlternative Currency hereunder for purposes of any Borrowings of EurocurrencyRate Loans; and if the Administrative Agent and the L/C Issuer consent to theissuance of Letters of Credit in such requested currency, the AdministrativeAgent shall so notify the Borrower and such currency shall thereupon be deemedfor all purposes to be an Alternative Currency hereunder for purposes of anyLetter of Credit issuances. If the Administrative Agent shall fail to obtainconsent to any request for an additional currency under this Section 1.09,the Administrative Agent shall promptly so notify the Borrower.

 

## **1.10**                        Redenomination of CertainAlternative Currencies.

 

(a)                                  Eachobligation of the Borrower to make a payment denominated in the national currencyunit of any member state of the European Union that adopts the Euro as itslawful currency after the date hereof shall be redenominated into Euro at thetime of such adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any suchmember state, the basis of accrual of interest expressed in this CreditAgreement in respect of that currency shall be inconsistent with any conventionor practice in the London interbank market for the basis of accrual of interestin respect of the Euro, such expressed basis shall be replaced by suchconvention or practice with effect from the date on which such member stateadopts the Euro as its lawful currency; provided that if any Borrowingin the currency of such member state is outstanding immediately prior to suchdate, such replacement shall take effect, with respect to such Borrowing, atthe end of the then current Interest Period.

 

(b)                                 Eachprovision of this Credit Agreement shall be subject to such reasonable changesof construction as the Administrative Agent may from time to time specify to beappropriate to reflect the adoption of the Euro by any member state of theEuropean Union and any relevant market conventions or practices relating to theEuro.

 

                                                (c)                                  Eachprovision of this Credit Agreement also shall be subject to such reasonablechanges of construction as the Administrative Agent may from time to timespecify to be appropriate to reflect a change in currency of any other countryand any relevant market conventions or practices relating to the change incurrency.

 

# ** **

# **ARTICLE II  COMMITMENTS AND CREDIT EXTENSIONS**

 

## **2.01**                        Commitments.

 

Subject to the terms andconditions set forth herein:

 

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(a)                                  RevolvingLoans.  During the Commitment Period,each Lender severally agrees to make revolving credit loans (the “RevolvingLoans”) to the Borrower in Dollars or in one or more Alternative Currencieson any Business Day; provided that after giving effect to any suchRevolving Loan, (i) with regard to the Lenders collectively, (A) theOutstanding Amount of Revolving Obligations shall not exceed THREE HUNDREDMILLION DOLLARS ($300,000,000) (as such amount may be increased or****decreased in accordance with the provisions hereof, the “AggregateRevolving Committed Amount”) and (B) the Outstanding Amount of allRevolving Loans denominated in Alternative Currencies shall not exceedSEVENTY-FIVE MILLION DOLLARS ($75,000,000) (as such amount may be decreased inaccordance with the provisions hereof, the “Alternative Currency Sublimit”),and (ii) with regard to each Lender individually, such Lender’s RevolvingCommitment Percentage of Revolving Obligations shall not exceed its respectiveRevolving Committed Amount.  RevolvingLoans may consist of Base Rate Loans, Eurocurrency Rate Loans, or a combinationthereof, as the Borrower may request, and may be repaid and reborrowed inaccordance with the provisions hereof.

 

(b)                                 Lettersof Credit.  During the CommitmentPeriod, (i) the L/C Issuer, in relianceupon the commitments of the Lenders set forth herein, agrees (A) to issueLetters of Credit for the account of the Borrower or any member of theConsolidated Group in Dollars or in one or more Alternative Currencies on anyBusiness Day, (B) to amend or renew****Letters ofCredit previously issued hereunder, and (C) to honor drawings under Letters ofCredit; and (ii) the Lenders severallyagree to purchase from the L/C Issuer a participation interest in Letters ofCredit issued hereunder in an amount equal to such Lender’s RevolvingCommitment Percentage thereof; provided that (A) the Outstanding Amountof L/C Obligations shall not exceed SEVENTY-FIVE MILLION DOLLARS ($75,000,000)(as such amount may be decreased in accordance with the provisions hereof, the“L/C Sublimit”), (B) with regard to the Lenders collectively, theOutstanding Amount of Revolving Obligations shall not exceed the AggregateRevolving Committed Amount, and (C) with regard to each Lender individually,such Lender’s Revolving Commitment Percentage of Revolving Obligations shallnot exceed its respective Revolving Committed Amount.  Subject to the terms and conditions hereof,the Borrower’s ability to obtain Letters of Credit shall be fully revolving,and accordingly the Borrower may obtain Letters of Credit to replace Letters ofCredit that have expired or that have been drawn upon and reimbursed.

 

(c)                                  SwinglineLoans.  During the Commitment Period,the Swingline Lender agrees to make revolving credit loans (the “SwinglineLoans”) to the Borrower in Dollars on any Business Day; providedthat (i) the Outstanding Amount of Swingline Loans shall not exceed TWENTYMILLION DOLLARS ($20,000,000) (as such amount may be decreased in accordancewith the provisions hereof, the “Swingline Sublimit”) and (ii) with respectto the Lenders collectively, the Outstanding Amount of Revolving Obligationsshall not exceed the Aggregate Revolving Committed Amount.  Swingline Loans shall be comprised solely ofBase Rate Loans, and may be repaid and reborrowed in accordance with theprovisions hereof.  Immediately upon themaking of a Swingline Loan, each Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from the Swingline Lender aparticipation interest in such Swingline Loan in an amount equal to the productof such Lender’s Revolving Commitment Percentage thereof.

 

(d)                                 Increasein Revolving Commitments.  Subject tothe terms and conditions set forth herein, the Borrower may, at any four (4)times on or after the Closing Date, upon written notice to the AdministrativeAgent, increase the Aggregate Revolving Committed Amount by up to ONE HUNDREDMILLION DOLLARS ($100,000,000) to not more than FOUR HUNDRED MILLION DOLLARS($400,000,000); provided that:

 

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(i)                                     the Borrower shallobtain commitments for the amount of the increase from existing Lenders (noneof which shall be required to increase its Revolving Commitment) or othercommercial banks and financial institutions reasonably acceptable to theBorrower and the Administrative Agent, which other commercial banks andfinancial institutions shall join in this Credit Agreement as Lenders byjoinder agreement substantially in the form of Exhibit 2.01(d) attachedhereto or by other arrangement reasonably acceptable to the AdministrativeAgent;

 

(ii)                                  any such increaseshall be in a minimum aggregate principal amount of $5 million and integralmultiples of $1 million in excess thereof (or the remaining amount, if less);

 

(iii)                               if any Revolving Loans areoutstanding at the time of any such increase, the Borrower will make suchpayments and adjustments on the Revolving Loans (including payment of anybreakage or other amounts owing under Section 3.05) as may be necessaryto give effect to the revised commitment percentages and commitment amounts;and

 

(iv)                              the conditions to themaking of a Revolving Loan set forth in Section 4.02 shall be satisfied.

 

In connection with anysuch increase in the Revolving Commitments, Schedule 2.01 will berevised to reflect the modified commitments and commitment percentages of theLenders, and the Borrower will provide supporting resolutions, legal opinions,promissory notes and other items as may be reasonably requested by theAdministrative Agent and the Lenders in connection therewith.

 

## **2.02**                        Borrowings,Conversions and Continuations.

 

(a)                                  EachBorrowing, each conversion of Loans from one Type to the other, and eachcontinuation of Eurocurrency Rate Loans shall be made upon the Borrower’sirrevocable notice to the Administrative Agent, which may be given bytelephone.  Each such notice must bereceived by the Administrative Agent not later than 11:00 a.m. (i) three (3)Business Days prior to the requested date of any Borrowing of, conversion to orcontinuation of Eurocurrency Rate Loans denominated in Dollars or of anyconversion of Eurocurrency Rate Loans denominated in Dollars to Base RateLoans, (ii) four (4) Business Days (or five (5) Business Days in the case ofSpecial Notice Currencies) prior to the requested date of any Borrowing of,conversion to or continuation of Eurocurrency Rate Loans denominated inAlternative Currencies or of any conversion of Eurocurrency Rate Loansdenominated in Alternative Currencies to Base Rate Loans and (iii) on therequested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrowerpursuant to this Section 2.02(a) must be confirmed promptly bydelivery to the Administrative Agent of a written Loan Notice, appropriatelycompleted and signed by a Responsible Officer of the Borrower. Except asprovided in Sections 2.03(c) and 2.04(a), eachBorrowing, conversion or continuation shall be in a principal amount of (i)with respect to Eurocurrency Rate Loans, $5 million or a whole multiple of $1million in excess thereof or (ii) with respect to Base Rate Loans, $1 millionor a whole multiple of $100,000 in excess thereof.  Each Loan Notice (whether telephonic orwritten) shall specify (i) whether such request is for a Borrowing, conversion,or continuation, (ii) the requested date of such Borrowing, conversion orcontinuation (which shall be a Business Day), (iii) the principal amountof Loans to be borrowed, converted or continued, (iv) the Type of Loans tobe borrowed, converted or continued, and (v) if applicable, the durationof the Interest Period with respect thereto.

 

If the Borrower fails tospecify a Type of Loan in a Loan Notice, then such Loan shall be made as a BaseRate Loan.  If the Borrower requests aBorrowing of, conversion to, or continuation of Eurocurrency Rate Loans in anyLoan Notice, but fails to specify an Interest Period, it will be deemed to

 

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have specified anInterest Period of one (1) month.  If theBorrower fails to give a timely notice requesting a conversion or continuationof a Eurocurrency Rate Loan, then such Eurocurrency Rate Loan shall beconverted to a Base Rate Loan on the last day of the Interest Period applicablethereto, provided, however, that in the case of a failure to timelyrequest a continuation of a Loan denominated in an Alternative Currency, suchLoan shall be continued as a Eurocurrency Rate Loan in its original currencywith an Interest Period of one (1) month. No Loan may be converted into or continued as a Loan denominated in adifferent currency, but instead must be prepaid in the original currency ofsuch Loan and reborrowed in the other currency.

 

(b)                                 Followingreceipt of a Loan Notice, the Administrative Agent shall promptly notify eachLender of the amount of its Commitment Percentage of the applicable Loans, andif no timely notice of a conversion or continuation is provided by theBorrower, the Administrative Agent shall notify each Lender of the details ofany automatic conversion to Base Rate Loans or continuation of Loansdenominated in an Alternative Currency, in each case as described in thepreceding subsection.  In the case of aBorrowing, each Lender shall make the amount of its Loan available to theAdministrative Agent in Same Day Funds at the Administrative Agent’s Office forthe Applicable Currency not later than 1:00 p.m. in the case of any Loandenominated in Dollars, and not later than the Applicable Time specified by theAdministrative Agent in the case of any Loan denominated in AlternativeCurrency, in each case on the Business Day specified in the applicable LoanNotice.  Upon satisfaction of theapplicable conditions set forth in Section 4.02 (and, if such Borrowingis an initial Credit Extension, Section 4.01), the Administrative Agentshall make all funds so received available to the Borrower in like funds asreceived by the Administrative Agent either by (i) crediting the account of theBorrower 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 instructionsprovided to (and reasonably acceptable to) the Administrative Agent by theBorrower; provided, however, that if, on the date of a Borrowing ofRevolving Loans, there are L/C Borrowings outstanding, then the proceeds ofsuch Borrowing shall be applied, first, to the payment in full of anysuch L/C Borrowings and second, to the Borrower as provided above.

 

(c)                                  Exceptas otherwise provided herein, without the consent of the Required Lenders, (i)a Eurocurrency Rate Loan may be continued or converted only on the last day ofan Interest Period for such Eurocurrency Rate Loan and (ii) any conversioninto, or continuation as, a Eurocurrency Rate Loan may be made only if theconditions to Credit Extensions in Section 4.02 have beensatisfied.  During the existence of aDefault or Event of Default, (A) no Loan may be requested as, converted to orcontinued as a Eurocurrency Rate Loan and (B) at the request of the RequiredLenders, (1) any outstanding Eurocurrency Rate Loans denominated in Dollarsshall be converted immediately****to Base RateLoans and (2) any outstanding Eurocurrency Rate Loans denominated in anAlternative Currency shall be converted immediately****toDollar-denominated Base Rate Loans.

 

(d)                                 TheAdministrative Agent shall promptly notify the Borrower and the Lenders of theinterest rate applicable to any Interest Period for Eurocurrency Rate Loansupon determination of such interest rate. At any time that Base Rate Loans are outstanding, the AdministrativeAgent shall notify the Borrower and the Lenders of any change in Bank ofAmerica’s prime rate used in determining the Base Rate promptly following thepublic announcement of such change.

 

(e)                                  Aftergiving effect to all Borrowings, all conversions of Loans from one Type to theother, and all continuations of Loans as the same Type, there shall not be morethan five (5) Interest Periods in effect with respect to Loans.

 

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(f)                                    Uponrequest of the Borrower and submission of the appropriate account informationto the Administrative Agent, the Borrower may direct that Eurocurrency RateLoans be deposited into the account of a Subsidiary of the Borrower.

 

## **2.03**                        Additional Provisions with Respectto Letters of Credit.

 

(a)                                  Obligationto Issue or Amend.

 

(i)                                     The L/C Issuershall not issue any Letter of Credit if:

 

(A)                              subject to Section2.03(b)(iii),****the expiry date of such requestedLetter of Credit would occur more than twelve months after the date of issuanceor last extension, unless the Required Lenders have approved such expiry date;or

 

(B)                                the expiry date of suchrequested Letter of Credit would occur after the L/C Expiration Date, unlessall the Lenders have approved such expiry date.

 

(ii)                                  The L/C Issuer shallnot be under any obligation to issue any Letter of Credit if:

 

(A)                              any order, judgment ordecree of any Governmental Authority or arbitrator shall by its terms purportto enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or anyLaw applicable to the L/C Issuer or any request or directive (whether or nothaving the force of law) from any Governmental Authority with jurisdiction overthe L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, theissuance of letters of credit generally or such Letter of Credit in particularor shall impose upon the L/C Issuer with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which the L/C Issuer is nototherwise compensated hereunder) not in effect on the Closing Date, or shallimpose upon the L/C Issuer any unreimbursed loss, cost or expense that was notapplicable on the Closing Date and that the L/C Issuer in good faith deemsmaterial to it;

 

(B)                                the issuance of suchLetter of Credit would violate any Law or one or more policies of the L/CIssuer;

 

(C)                                except as otherwiseagreed by the L/C Issuer and the Administrative Agent, such Letter of Credit isin an initial face amount less than $100,000 or Dollar Equivalent, in the caseof a commercial Letter of Credit, or $1 million or Dollar Equivalent, in thecase of a standby Letter of Credit;

 

(D)**                              **exceptas otherwise agreed by the Administrative Agent and the L/C Issuer, such Letterof Credit is to be denominated in a currency other than Dollars or anAlternative Currency;

 

(E)                                 such Letter ofCredit contains any provisions for automatic reinstatement of the stated amountafter any drawing thereunder;

 

(F)                                 the L/C Issuer doesnot as of the issuance date of such requested Letter of Credit issue Letters ofCredit in the requested currency; or

 

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(G)                                a default of anyLender’s obligations to fund under Section 2.03(c) existing or anyLender is at such time a Defaulting Lender, unless the L/C Issuer has enteredinto satisfactory arrangements with the Borrower or such Lender to eliminatethe L/C Issuer’s risk with respect to such Lender.

 

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

 

(iv)                              The L/C Issuer shall notbe under any obligation to amend any Letter of Credit if:

 

(A)                              the L/C Issuer would haveno obligation at such time to issue such Letter of Credit in its amended formunder the terms hereof; or

 

(B)                                the beneficiary of suchLetter of Credit does not accept the proposed amendment to such Letter ofCredit.

 

(b)                                 Proceduresfor Issuance and Amendment;****Auto-Renewal.

 

(i)                                     Each Letter ofCredit shall be issued or amended, as the case may be, upon the request of theBorrower delivered to the L/C Issuer (with a copy to the Administrative Agent)in the form of a Letter of Credit Application, appropriately completed andsigned by a Responsible Officer.  SuchLetter of Credit Application must be received by the L/C Issuer and theAdministrative Agent not later than 11:00 a.m. at least two Business Days (orsuch later date and time as the L/C Issuer and the Administrative Agent mayagree in a particular instance in their sole discretion) prior to the proposedissuance date or date of amendment, as the case may be.  In the case of a request for an initialissuance of a Letter of Credit, such Letter of Credit Application shall specifyin form and detail satisfactory to the L/C Issuer:  (A) the proposed issuance date of therequested Letter of Credit (which shall be a Business Day); (B) the amount andcurrency thereof; (C) the expiry date thereof; (D) the name and address of thebeneficiary thereof; (E) the documents to be presented by such beneficiary incase of any drawing thereunder; (F) the full text of any certificate to bepresented by such beneficiary in case of any drawing thereunder; and (G) suchother matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter ofCredit, such Letter of Credit Application shall specify in form and detailsatisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) theproposed date of amendment thereof (which shall be a Business Day); (C) the natureof the proposed amendment; and (D) such other matters as the L/C Issuer mayrequire.  Additionally, the Borrowershall furnish to the L/C Issuer and the Administrative Agent such otherdocuments and information pertaining to such requested Letter of Creditissuance or amendment, including any Issuer Documents, as the L/C Issuer or theAdministrative Agent may require.

 

(ii)                                  Promptly afterreceipt of any Letter of Credit Application, the L/C Issuer will confirm withthe Administrative Agent (by telephone or in writing) that the AdministrativeAgent has received a copy of such Letter of Credit Application from theBorrower and, if not, the L/C Issuer will provide the Administrative Agent witha copy thereof.  Unless the L/C Issuerhas received written notice from the Administrative Agent, any Lender or theBorrower, at least one (1) Business Day prior to the requested date of issuanceor amendment of the applicable Letter of Credit, (A) directing the L/C Issuernot to issue such Letter of Credit as a result of the limitations set forth inthis Article II or (B) that one or more applicable conditions containedin Article IV shall not then be satisfied, then, subject to the termsand conditions hereof, the L/C Issuer shall,

 

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on the requested date,issue a Letter of Credit for the account of the Borrower (or Subsidiary) orenter into the applicable amendment, as the case may be, in each case inaccordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letterof Credit, each Lender shall be deemed to, and hereby irrevocably andunconditionally agrees to, purchase from the L/C Issuer a risk participation insuch Letter of Credit in an amount equal to such Lender’s Revolving CommitmentPercentage thereof.

 

(iii)                               If the Borrower sorequests in any applicable L/C Application, the L/C Issuer may, in its sole andabsolute discretion, agree to issue a Letter of Credit that has automaticextension provisions (each, an “Auto-Extension Letter of Credit”); providedthat any such Auto-Extension Letter of Credit must permit the L/C Issuer toprevent any such renewal at least once in each twelve-month period (commencingwith the date of issuance of such Letter of Credit) by giving prior notice tothe beneficiary thereof not later than a day (the “Non-Extension Notice Date”)in each such twelve-month period to be agreed upon at the time such Letter ofCredit is issued.  Unless otherwisedirected by the L/C Issuer, the Borrower shall not be required to make aspecific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit hasbeen issued, the Lenders shall be deemed to have authorized (but may notrequire) the L/C Issuer to permit the extension of such Letter of Credit at anytime to an expiry date not later than the L/C Expiration Date; provided,however, that the L/C Issuer shall not permit any such extension if (A) the L/CIssuer has determined that it would not be permitted or would have no obligationat such time to issue such Letter of Credit in its revised form (as extended)under the terms hereof (by reason of the provisions of Section 2.03(a)or otherwise), or (B) it has received notice (which may be by telephone or inwriting) on or before the day that is five Business Days before theNon-Extension Notice Date (1) from the Administrative Agent that the RequiredLenders have elected not to permit such extension or (2) from theAdministrative Agent, any Lender or the Borrower that one or more of theapplicable conditions specified in Section 4.02 is not then satisfied,and in each case directing the L/C Issuer not to permit such extension.

 

(iv)                              Promptly after itsdelivery of any Letter of Credit or any amendment to a Letter of Credit to anadvising bank with respect thereto or to the beneficiary thereof, the L/CIssuer will also deliver to the Borrower and the Administrative Agent a trueand complete copy of such Letter of Credit or amendment.

 

(c)                                  Drawingsand Reimbursements; Funding of Participations.

 

(i)                                     Upon any drawingunder any Letter of Credit, the L/C Issuer shall notify the Borrower and theAdministrative Agent thereof.  Not laterthan 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter ofCredit (each such date, an “Honor Date”), the Borrower shall reimbursethe L/C Issuer through the Administrative Agent in the Applicable Currency inan amount equal to the amount of such drawing, unless (A) the L/C Issuer (atits option) shall have specified in such notice that it will requirereimbursement in Dollars or (B) in the absence of any such requirement forreimbursement in Dollars, the Borrower shall have notified the L/C Issuerpromptly following receipt of the notice of drawing that the Borrower willreimburse the L/C Issuer in Dollars.  Ifthe Borrower fails to so reimburse the L/C Issuer by such time, theAdministrative Agent shall promptly notify each Lender of the Honor Date, theamount of the unreimbursed drawing (the “Unreimbursed Amount”), and theamount of such Lender’s Revolving Commitment Percentage thereof.  In such event, the Borrower shall be deemedto have requested a Borrowing of Base Rate Loans to be disbursed on the HonorDate in an amount equal to the Unreimbursed Amount, without regard to theminimum and multiples specified in

 

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Section 2.02for the principal amount of Base Rate Loans, the amount of the unutilizedportion of the Aggregate Revolving Committed Amount or the conditions set forthin Section 4.02.  Any notice givenby the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) maybe given by telephone if immediately confirmed in writing; provided thatthe lack of such an immediate confirmation shall not affect the conclusivenessor binding effect of such notice.

 

(ii)                                  Each Lender(including the Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) makefunds available to the Administrative Agent for the account of the L/C Issuerat the Administrative Agent’s Office in an amount equal to its RevolvingCommitment Percentage of the Unreimbursed Amount not later than 1:00 p.m. onthe Business Day specified in such notice by the Administrative Agent,whereupon, subject to the provisions of Section 2.03(c)(iii), eachLender that so makes funds available shall be deemed to have made a RevolvingLoan that is a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit thefunds so received to the L/C Issuer.

 

(iii)                               With respect to anyUnreimbursed Amount that is not fully refinanced by a Borrowing of Base RateLoans for any reason, the Borrower shall be deemed to have incurred from theL/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that isnot so refinanced, which L/C Borrowing shall be due and payable on demand(together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to theAdministrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shallbe deemed payment in respect of its participation in such L/C Borrowing andshall constitute an L/C Advance from such Lender in satisfaction of itsparticipation obligation under this Section 2.03.

 

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

 

(v)                                 Each Lender’sobligation to make Revolving Loans or L/C Advances to reimburse the L/C Issuerfor amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),shall be absolute and unconditional and shall not be affected by any circumstance,including (A) any set-off, counterclaim, recoupment, defense or other rightthat such Lender may have against the L/C Issuer, the Borrower or any otherPerson for any reason whatsoever; (B) the occurrence or continuance of aDefault or Event of Default, (C) non-compliance with the conditions set forthin Section 4.02, or (D) any other occurrence, event or condition,whether or not similar to any of the foregoing; provided that the L/CIssuer shall have complied with the provisions of Section 2.03(b)(ii).  No such making of an L/C Advance shallrelieve or otherwise impair the obligation of the Borrower to reimburse the L/CIssuer for the amount of any payment made by the L/C Issuer under any Letter ofCredit, together with interest as provided herein.

 

(vi)                              If any Lender fails tomake available to the Administrative Agent for the account of the L/C Issuerany amount required to be paid by such Lender pursuant to the foregoingprovisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),the L/C Issuer shall be entitled to recover from such Lender (acting throughthe Administrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the date on which such paymentis immediately available to the L/C Issuer at a rate per annum equal to theFederal Funds Rate from time to time in effect. A certificate of the L/C Issuer submitted to

 

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any Lender (through theAdministrative Agent) with respect to any amounts owing under this clause (vi) shallbe conclusive absent manifest error.

 

(d)                                 Repaymentof Participations.

 

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

 

(ii)                                  If any paymentreceived by the Administrative Agent for the account of the L/C Issuer pursuantto Section 2.03(c)(i) is required to be returned under any ofthe circumstances described in Section 10.05 (including pursuant to anysettlement entered into by the L/C Issuer in its discretion), each Lender shallpay to the Administrative Agent for the account of the L/C Issuer its RevolvingCommitment Percentage thereof on demand of the Administrative Agent, plusinterest thereon from the date of such demand to the date such amount isreturned by such Lender, at a rate per annum equal to the Federal Funds Ratefrom time to time in effect.

 

(e)                                  ObligationsAbsolute.  The obligation of theBorrower to reimburse the L/C Issuer for each drawing under each Letter ofCredit and to repay each L/C Borrowing shall be absolute, unconditional andirrevocable, and shall be paid strictly in accordance with the terms of thisCredit Agreement under all circumstances, including the following:

 

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

 

(ii)                                  the existence of anyclaim, counterclaim, set-off, defense or other right that the Borrower or anySubsidiary may have at any time against any beneficiary or any transferee ofsuch Letter of Credit (or any Person for whom any such beneficiary or any suchtransferee may be acting), the L/C Issuer or any other Person, whether inconnection with this Credit Agreement, the transactions contemplated hereby orby such Letter of Credit or any agreement or instrument relating thereto, orany unrelated transaction;

 

(iii)                               any draft, demand,certificate or other document presented under such Letter of Credit proving tobe forged, fraudulent, invalid or insufficient in any respect or any statementtherein being untrue or inaccurate in any respect; or any loss or delay in thetransmission or otherwise of any document required in order to make a drawingunder such Letter of Credit;

 

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

 

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(v)                                 any adverse change inthe relevant exchange rates or in the availability of the relevant AlternativeCurrency to the Borrower or any Subsidiary or in the relevant currency marketsgenerally; or

 

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

 

The Borrower shallpromptly examine a copy of each Letter of Credit and each amendment theretothat is delivered to such Borrower and, in the event of any claim ofnoncompliance with the Borrower’s instructions or other irregularity, theBorrower will immediately notify the L/C Issuer.  The Borrower shall be conclusively deemed tohave waived any such claim against the L/C Issuer and its correspondents unlesssuch notice is given as aforesaid.

 

(f)                                    Roleof the L/C Issuer in such Capacity. Each Lender and the Borrower agrees that, in paying any drawing under aLetter of Credit, the L/C Issuer shall not have any responsibility to obtainany document (other than any sight draft, certificates and documents expresslyrequired by the Letter of Credit) or to ascertain or inquire as to the validityor accuracy of any such document or the authority of the Person executing ordelivering any such document.  None ofthe L/C Issuer, the Administrative Agent, any Agent-Related Person nor any ofthe respective correspondents, participants or assignees of the L/C Issuer shallbe liable to any Lender for (i) any action taken or omitted in connectionherewith at the request or with the approval of the Lenders or the RequiredLenders, as applicable; (ii) any action taken or omitted in the absence ofgross negligence or willful misconduct; or (iii) the due execution,effectiveness, validity or enforceability of any document or instrument relatedto any Letter of Credit or Letter of Credit Application.  The Borrower hereby assumes all risks of theacts or omissions of any beneficiary or transferee with respect to such Borrower’suse of any Letter of Credit; provided, however, that this assumption isnot intended to, and shall not, preclude the Borrower’s pursuing such rightsand remedies as the Borrower may have against the beneficiary or transferee atlaw or under any other agreement.  Noneof the L/C Issuer, the Administrative Agent, any Agent-Related Person, nor anyof the respective correspondents, participants or assignees of the L/C Issuer,shall be liable or responsible for any of the matters described inclauses (i) through (v) of Section 2.03(e);provided, however, that anything in such clauses to the contrarynotwithstanding, the Borrower may have a claim against the L/C Issuer, and theL/C Issuer may be liable to the Borrower, to the extent, but only to the extent,of any direct, as opposed to consequential or exemplary, damages suffered bythe Borrower that such Borrower proves were caused by the L/C Issuer’s willfulmisconduct or gross negligence or the L/C Issuer’s willful failure to pay underany Letter of Credit after the presentation to it by the beneficiary of a sightdraft and certificate(s) strictly complying with the terms and conditions of aLetter of Credit.  In furtherance and notin limitation of the foregoing, the L/C Issuer may accept documents that appearon their face to be in order, without responsibility for further investigation,regardless of any notice or information to the contrary, and the L/C Issuershall not be responsible for the validity or sufficiency of any instrumenttransferring or assigning or purporting to transfer or assign a Letter ofCredit or the rights or benefits thereunder or proceeds thereof, in whole or inpart, that may prove to be invalid or ineffective for any reason.

 

(g)                                 CashCollateral.  (i) If the L/CIssuer has honored any full or partial drawing request under any Letter ofCredit and such drawing has resulted in an L/C Borrowing, or (ii) if, asof the L/C Expiration Date, any Letter of Credit for any reason remainsoutstanding and partially or wholly undrawn, the Borrower shall immediatelyprovide Cash Collateral for the then-Outstanding Amount of its L/C Obligations(in an amount equal to such Outstanding Amount determined as of the date ofsuch L/C Borrowing or the L/C Expiration Date, as the case may be).  The Borrower hereby grants to the****Administrative Agent, for thebenefit of the L/C Issuer and the Lenders, a security****interestin all such

 

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cash, deposit accountsand all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained inblocked, non-interest bearing deposit accounts at Bank of America.

 

(h)                                 Applicabilityof ISP and UCP.  Unless otherwiseexpressly agreed by the L/C Issuer and the Borrower, when a Letter of Credit isissued, (i)****the rules of the ISP shall applyto each standby****Letter of Credit and (ii) therules of the Uniform Customs and Practice for Documentary Credits, as mostrecently published by the International Chamber of Commerce at the time ofissuance shall apply to each commercial Letter of Credit.

 

(i)                                     Lettersof Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunderis in support of any obligations of, or is for the account of, any Subsidiaryof the Borrower, the Borrower shall be obligated to reimburse the L/C Issuerfor any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that theissuance of Letters of Credit for the account of the Borrower’s Subsidiariesinures to the benefit of the Borrower, and that the Borrower’s business derivessubstantial benefits from the businesses of such Subsidiaries.

 

(j)                                     Letterof Credit Fees.  The Borrower shallpay Letter of Credit fees as set forth in Section 2.09(d).

 

(k)                                  Conflictwith Issuer Documents.  In the eventof any conflict between the terms hereof and the terms of any Issuer Document,the terms hereof shall control.

 

## **2.04**                        Additional Provisions with Respectto Swingline Loans.

 

(a)                                  BorrowingProcedures.  Each Swingline Borrowingshall be made upon the Borrower’s irrevocable notice to the Swingline Lenderand the Administrative Agent, which may be given by telephone. Each such noticemust be received by the Swingline Lender and the Administrative Agent not laterthan 1:00 p.m. on the requested borrowing date, and shall specify (i) theamount to be borrowed, which shall be a minimum of $500,000, and (ii) therequested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmedpromptly by delivery to the Swingline Lender and the Administrative Agent of awritten Loan Notice, appropriately completed and signed by a ResponsibleOfficer of the Borrower.  Promptly afterreceipt by the Swingline Lender of any telephonic Loan Notice, the SwinglineLender will confirm with the Administrative Agent (by telephone or in writing)that the Administrative Agent has also received such Loan Notice and, if not,the Swingline Lender will notify the Administrative Agent (by telephone or inwriting) of the contents thereof.  Unlessthe Swingline Lender has received notice (by telephone or in writing) from theAdministrative Agent (including at the request of any Lender) prior to 2:00p.m. on the date of the proposed Swingline Borrowing (A) directing theSwingline Lender not to make such Swingline Loan as a result of the limitationsset forth in this Article II, or (B) that one or more of the applicableconditions specified in Article IV is not then satisfied, then,subject to the terms and conditions hereof, the Swingline Lender will, notlater than 3:00 p.m. on the borrowing date specified in such Loan Notice, makethe amount of its Swingline Loan available to the Borrower.

 

(b)                                 Refinancing.

 

(i)                                     The SwinglineLender at any time in its sole and absolute discretion may request, on behalfof the Borrower (which hereby irrevocably authorizes the Swingline Lender to sorequest on its behalf), that each Lender make a Revolving Loan that is a BaseRate Loan in an amount equal to such Lender’s Revolving Commitment Percentageof Swingline Loans then outstanding. Such request shall be made in writing (which written request shall bedeemed to be

 

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a Loan Notice forpurposes hereof) and in accordance with the requirements of Section 2.02,without regard to the minimum and multiples specified therein for the principalamount of Base Rate Loans, the unutilized portion of the Aggregate RevolvingCommitments or the conditions set forth in Section 4.02.  The Swingline Lender shall furnish the Borrowerwith a copy of the applicable Loan Notice promptly after delivering such noticeto the Administrative Agent.  Each Lendershall make an amount equal to its Revolving Commitment Percentage of the amountspecified in such Loan Notice available to the Administrative Agent inimmediately available funds for the account of the Swingline Lender at theAdministrative Agent’s Office not later than 1:00 p.m. on the day specified insuch Loan Notice, whereupon, subject to Section 2.04(b)(ii), eachLender that so makes funds available shall be deemed to have made a RevolvingLoan that is a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit thefunds so received to the Swingline Lender.

 

(ii)                                  If for any reason anySwingline Loan cannot be refinanced by such a Borrowing of Revolving Loans inaccordance with Section 2.04(b)(i), the request for Revolving Loanssubmitted by the Swingline Lender as set forth herein shall be deemed to be arequest by the Swingline Lender that each of the Lenders fund its riskparticipation in the relevant Swingline Loan and each Lender’s payment to theAdministrative Agent for the account of the Swingline Lender pursuant to Section 2.04(b)(i) shallbe deemed payment in respect of such participation.

 

(iii)                               If any Lender fails tomake available to the Administrative Agent for the account of the SwinglineLender any amount required to be paid by such Lender pursuant to the foregoingprovisions of this Section 2.04(b) by the time specified in Section 2.04(b)(i),the Swingline Lender shall be entitled to recover from such Lender (actingthrough the Administrative Agent), on demand, such amount with interest thereonfor the period from the date such payment is required to the date on which suchpayment is immediately available to the Swingline Lender at a rate per annumequal to the Federal Funds Rate from time to time in effect.  A certificate of the Swingline Lendersubmitted to any Lender (through the Administrative Agent) with respect to anyamounts owing under this clause (iii) shall be conclusiveabsent manifest error.

 

(iv)                              Each Lender’s obligationto make Revolving Loans or to purchase and fund risk participations inSwingline Loans pursuant to this Section 2.04(b) shall beabsolute and unconditional and shall not be affected by any circumstance,including (A) any set-off, counterclaim, recoupment, defense or other rightthat such Lender may have against the Swingline Lender, the Borrower or anyother Person for any reason whatsoever, (B) the occurrence or continuance of aDefault or Event of Default, (C) non-compliance with the conditions set forthin Section 4.02, or (D) any other occurrence, event or condition,whether or not similar to any of the foregoing; provided that SwinglineLender has complied with the provisions of Section 2.04(a).  No such purchase or funding of riskparticipations shall relieve or otherwise impair the obligation of the Borrowerto repay Swingline Loans, together with interest as provided herein.

 

(c)                                  Repaymentof Participations.

 

(i)                                     At any time afterany Lender has purchased and funded a risk participation in a Swingline Loan,if the Swingline Lender receives any payment on account of such Swingline Loan,the Swingline Lender will distribute to such Lender its Revolving CommitmentPercentage of such payment (appropriately adjusted, in the case of interestpayments, to reflect the period of time during which such Lender’s riskparticipation was funded) in the same funds as those received by theSwingline Lender.

 

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(ii)                                  If any paymentreceived by the Swingline Lender in respect of principal or interest on anySwingline Loan is required to be returned by the Swingline Lender under any ofthe circumstances described in Section 10.05 (including pursuant to anysettlement entered into by the Swingline Lender in its discretion), each Lendershall pay to the Swingline Lender its Revolving Commitment Percentage thereofon demand of the Administrative Agent, plus interest thereon from the date ofsuch demand to the date such amount is returned, at a rate per annum equal tothe Federal Funds Rate.  TheAdministrative Agent will make such demand upon the request of the SwinglineLender.

 

(d)                                 Interestfor Account of Swingline Lender.  TheSwingline Lender shall be responsible for invoicing the Borrower for intereston the Swingline Loans.  Until eachLender funds its Revolving Loan or risk participation pursuant to this Section 2.04to refinance such Lender’s Revolving Commitment Percentage of any SwinglineLoan, interest in respect thereof shall be solely for the account of theSwingline Lender.

 

(e)                                  PaymentsDirectly to Swingline Lender.  TheBorrower shall make all payments of principal and interest in respect of theSwingline Loans directly to the Swingline Lender.

 

## **2.05**                        Repayment of Loans.

 

(a)                                  RevolvingLoans.  The Borrower shall repay tothe Lenders the Outstanding Amount of Revolving Loans on the RevolvingTermination Date.

 

(b)                                 SwinglineLoans.  The Borrower shall repay tothe Swingline Lender the Outstanding Amount of the Swingline Loans on theearlier****to occur of (i) the date of demand by the Swingline Lender and (ii) the Revolving Termination Date.

 

## **2.06**                        Prepayments.

 

(a)                                  VoluntaryPrepayments.  The Loans may be repaidin whole or in part without premium or penalty (except, in the case of Loansother than Base Rate Loans, amounts payable pursuant to Section 3.05);provided that:

 

(i)                                     in the case ofLoans other than Swingline Loans, (A) notice thereof must be received by 11:00a.m. by the Administrative Agent at least (1) three (3) Business Days prior tothe date of prepayment, in the case of Eurocurrency Rate Loans denominated inDollars, (2) four (4) Business Days prior to the date of prepayment, in thecase of Eurocurrency Rate Loans denominated in Alternative Currencies (otherthan Special Notice Currencies), (3) five (5) Business Days prior to the dateof prepayment, in the case of Eurocurrency Rate Loans denominated in SpecialNotice Currencies and (4) on the date of prepayment in the case of Base RateLoans, and (B) any such prepayment shall be a minimum principal amount of $5million and integral multiples of $1 million in excess thereof, in the case ofEurocurrency Rate Loans and $500,000 and integral multiples of $100,000 in excessthereof, in the case of Base Rate Loans, or, in each case, the entire remainingprincipal amount thereof, if less; and

 

(ii)                                  in the case ofSwingline Loans, (A) notice thereof must be received by the Swingline Lender by1:00 p.m. on the date of prepayment (with a copy to the Administrative Agent),and (B) any such prepayment shall be in the same minimum principal amounts asfor advances thereof (or any lesser amount that may be acceptable to theSwingline Lender).

 

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Each such notice ofvoluntary prepayment hereunder shall be irrevocable and shall specify the dateand amount of prepayment and the Loans and Types of Loans that are beingprepaid.  The Administrative Agent willgive prompt notice to the applicable Lenders of any prepayment on the Loans andthe Lender’s interest therein. Prepayments of Eurocurrency Rate Loans hereunder shall be accompanied byaccrued interest thereon and breakage or other amounts due, if any, under Section3.05.

 

(b)                                 MandatoryPrepayments.  If at any time(A) the Outstanding Amount of Revolving Obligations shall exceed theAggregate Revolving Committed Amount, (B) the Outstanding Amount of L/CObligations shall exceed the L/C Sublimit or (C) the Outstanding Amount ofSwingline Loans shall exceed the Swingline Sublimit, then in any such caseimmediate prepayment will be made on the Revolving Loans or Swingline Loans orcash collateral provided in respect of the Letter of Credit Obligations, asappropriate, in an amount equal to the difference.

 

(c)                                  Application.  Within each Loan, prepayments will be appliedfirst to Base Rate Loans and then to Eurocurrency Rate Loans in direct order ofInterest Period maturities.  Voluntaryprepayments shall be applied as specified by the Borrower, and voluntaryprepayments on the Revolving Obligations will be paid by the AdministrativeAgent to the Lenders ratably in accordance with their respective intereststherein.

 

## **2.07**                        Termination or Reduction of Commitments.

 

The Commitments hereundermay be permanently reduced in whole or in part without penalty by notice fromthe Borrower to the Administrative Agent; provided that (i) any suchnotice thereof must be received by 11:00 a.m. at least five (5) Business Daysprior to the date of reduction or termination and any such prepayment shall bein a minimum principal amount of $5 million and integral multiples of$1 million in excess thereof; and (ii) the Commitments may not be reducedto an amount less than the Revolving Obligations then outstanding thereunder.  The Administrative Agent will give promptnotice to the Lenders of any such reduction in Commitments. Any reduction ofCommitments shall be applied ratably to the commitment of each Lender accordingto its commitment percentage thereof. All commitment or other fees accrued with respect thereto through theeffective date of any termination of Commitments shall be paid on the effectivedate of such termination.

 

## **2.08**                        Interest.

 

(a)                                  Subjectto the provisions of subsection (b) below, (i) eachEurocurrency Rate Loan shall bear interest on the outstanding principal amountthereof for each Interest Period at a rate per annum equal to the EurocurrencyRate for such Interest Period plus the Applicable Percentage plus,for any Interest Period with respect to any Eurocurrency Rate Loan advanced bya Lender required to comply with the relevant requirements of the Bank ofEngland and the Financial Services Authority of the United Kingdom, theMandatory Cost Rate for such Interest Period; (ii) each Loan that is aBase Rate Loan shall bear interest on the outstanding principal amount thereoffrom the applicable borrowing date at a rate per annum equal to the Base Rate plusthe Applicable Percentage; and (iii) each Swingline Loan shall bearinterest on the outstanding principal amount thereof from the applicableborrowing date at a rate per annum equal to the Base Rate plus theApplicable Percentage.

 

(b)                                 (i)                                     Ifany amount of principal of any Loan is not paid when due (without regard to anyapplicable grace periods), whether at stated maturity, by acceleration orotherwise, such amount shall thereafter bear interest at a fluctuating interestrate per annum at all times equal to the Default Rate to the fullest extentpermitted by applicable Law.

 

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(ii)                                  If any amount (otherthan principal of any Loan) payable by the Borrower under any Credit Documentis not paid when due (without regard to any applicable grace periods), whetherat stated maturity, by acceleration or otherwise, then upon the request of theRequired Lenders, such amount shall thereafter bear interest at a fluctuatinginterest rate per annum at all times equal to the Default Rate to the fullestextent permitted by applicable Law.

 

(iii)                               Upon the request of theRequired Lenders, while any Event of Default exists, the Borrower shall at therequest of the Required Lenders, pay interest on the principal amount of allOutstanding Obligations hereunder at a fluctuating interest rate per annum atall times equal to the Default Rate to the fullest extent permitted byapplicable Law.

 

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

 

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

 

## **2.09**                        Fees.

 

(a)                                  FacilityFee.  The Borrower shall pay to theAdministrative Agent for the account of each Lender in accordance with itsRevolving Commitment Percentage, a facility fee equal to the ApplicablePercentage of the actual daily amount of the Aggregate Revolving Commitments(or, if the Aggregate Revolving Commitments have terminated, on the OutstandingAmount of all Revolving Obligations), regardless of usage.  The facility fee shall accrue at all timesduring the Commitment Period (and thereafter so long as any RevolvingObligations remain outstanding), including at any time during which one or moreof the conditions in Article IV is not met, and shall be due andpayable quarterly in arrears on the first Business Day after the end of eachMarch, June, September and December, commencing with the first such date tooccur after the Closing Date, and on the Revolving Termination Date (and, ifapplicable, thereafter on demand).  TheFacility Fee shall be calculated quarterly in arrears, and if there is anychange in the Applicable Percentage during any quarter, the actual daily amountshall be computed and multiplied by the Applicable Percentage separately foreach period during such quarter that such Applicable Percentage was in effect.

 

(b)                                 UtilizationFee.  The Borrower shall pay to theAdministrative Agent for the account of each Lender in accordance with itsRevolving Commitment Percentage, a utilization fee (the “Utilization Fee”)equal to the Applicable Percentage of the Revolving Obligations on each daythat the Revolving Obligations (excluding Swingline Loans) exceed 50% of theactual daily amount of the Aggregate Revolving Commitments then in effect (orif terminated, in effect immediately prior thereto).  The Utilization Fee shall be due and payablequarterly in arrears on the first Business Day after the end of each March,June, September and December, commencing with the first such date to occurafter the Closing Date, and on the Revolving Termination Date.  The Utilization Fee shall be calculatedquarterly in arrears, and if there is any change in the Applicable Percentageduring any quarter, the actual daily amount shall be computed and multiplied bythe Applicable Percentage separately for each period during such quarter thatsuch Applicable Percentage was in effect.

 

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(c)                                  Letterof Credit Fees.

 

(i)                                     Commercial andStandby Letter of Credit Fees.  TheBorrower shall pay to the Administrative Agent for the account of each Lenderin accordance with its Revolving Commitment Percentage (A) a Letter ofCredit fee for each commercial Letter of Credit equal to the ApplicablePercentage multiplied by the daily maximum amount available to be drawnunder such Letter of Credit (whether or not such maximum amount is then ineffect under such Letter of Credit), and (B)****aLetter of Credit fee for each standby Letter of Credit equal to the ApplicablePercentage multiplied by the daily maximum amount available to be drawnunder such Letter of Credit (whether or not such maximum amount is then ineffect under such Letter of Credit) (collectively, the “Letter of CreditFees”).  The Letter of Credit Feesshall be computed on a quarterly basis in arrears, and shall be due and payableon the first Business Day after the end of each March, June, September andDecember, commencing with the first such date to occur after the issuance ofsuch Letter of Credit, on the L/C Expiration Date and thereafter on demand.  If there is any change in the ApplicablePercentage during any quarter, the daily maximum amount of each standby Letterof Credit shall be computed and multiplied by the Applicable Percentageseparately for each period during such quarter that such Applicable Percentagewas in effect.

 

(ii)                                  Fronting Fee andDocumentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/CIssuer for its own account a fronting fee with respect to each standby andcommercial Letter of Credit in the amounts and at the times specified in theFee Letter.  In addition, the Borrowershall pay directly to the L/C Issuer for its own account the customaryissuance, presentation, amendment and other processing fees, and other standardcosts and charges, of the L/C Issuer relating to letters of credit as from timeto time in effect.  Such customary feesand standard costs and charges are due and payable on demand and arenonrefundable.

 

(d)                                 OtherFees.

 

(i)                                     The Borrower shallpay to the Arranger and the Administrative Agent for their own respectiveaccounts fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid andshall not be refundable for any reason whatsoever.

 

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

 

## **2.10**                        Computation of Interest and Fees.

## ** **

All computations ofinterest for Base Rate Loans when the Base Rate is determined by Bank ofAmerica’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 basisof a 360-day year and actual days elapsed (which results in more fees orinterest, as applicable, being paid than if computed on the basis of a 365-dayyear) or, in the case of interest in respect of Loans denominated in AlternativeCurrencies as to which market practice differs from the foregoing, inaccordance with such market practice. Interest shall accrue on each Loan for the day on which the Loan ismade, and shall not accrue on a Loan, or any portion thereof, for the day on whichthe Loan or such portion is paid, provided that any Loan that is repaidon the same day on which it is made shall, subject to Section 2.11(a),bear interest for one day.

 

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## **2.11**                        Payments Generally.

 

(a)                                  Allpayments to be made by the Borrower shall be made without condition ordeduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided hereinand except with respect to principal of and interest on Loans denominated in anAlternative Currency, all payments by the Borrower hereunder shall be made tothe Administrative Agent, for the account of the respective Lenders to whichsuch payment is owed, at the Administrative Agent’s Office in Dollars and inSame Day Funds not later than 2:00 p.m. on the date specified herein.  Except as otherwise expressly providedherein, all payments by the Borrower hereunder with respect to principal of andinterest on Loans denominated in an Alternative Currency shall be made to the AdministrativeAgent, for the account of the respective Lenders to which such payment is owed,at the Administrative Agent’s Office in such Alternative Currency and in SameDay Funds not later than the Applicable Time specified by the AdministrativeAgent on the dates specified herein.  TheAdministrative Agent will promptly distribute to each Lender its Pro Rata Share(or other applicable share as provided herein) of such payment in like funds asreceived by wire transfer to such Lender’s Lending Office.  All payments received by the AdministrativeAgent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) afterthe Applicable Time specified by the Administrative Agent in the case ofpayments in an Alternative Currency, shall in each case be deemed received onthe next succeeding Business Day and any applicable interest or fee shallcontinue to accrue.

 

(b)                                 Subjectto the definition of “Interest Period”, if any payment to be made by theBorrower shall come due on a day other than a Business Day, payment shall bemade on the next following Business Day, and such extension of time shall bereflected in computing interest or fees, as the case may be.

 

(c)                                  Unlessthe Borrower or any Lender has notified the Administrative Agent, prior to thedate any payment is required to be made by it to the Administrative Agenthereunder, that the Borrower or such Lender, as the case may be, will not makesuch payment, the Administrative Agent may assume that the Borrower or suchLender, as the case may be, has timely made such payment and may (but shall notbe so required to), in reliance thereon, make available a corresponding amountto the Person entitled thereto.  If andto the extent that such payment was not in fact made to the AdministrativeAgent in Same Day Funds, then:

 

(i)                                     if the Borrowerfailed to make such payment, each Lender shall forthwith on demand repay to theAdministrative Agent the portion of such assumed payment that was madeavailable to such Lender in Same Day Funds, together with interest thereon inrespect of each day from and including the date such amount was made availableby the Administrative Agent to such Lender to the date such amount is repaid tothe Administrative Agent in Same Day Funds at the applicable Overnight Ratefrom time to time in effect; and

 

(ii)                                  if any Lender failedto make such payment, such Lender shall forthwith on demand pay to theAdministrative Agent the amount thereof in Same Day Funds, together withinterest thereon for the period from the date such amount was made available bythe Administrative Agent to the Borrower to the date such amount is recoveredby the Administrative Agent (the “Compensation Period”) at a rate perannum equal to the applicable Overnight Rate from time to time in effect.  If such Lender pays such amount to theAdministrative Agent, then such amount shall constitute such Lender’s Loanincluded in the applicable Borrowing.  Ifsuch Lender does not pay such amount forthwith upon the Administrative Agent’sdemand therefore, the Administrative Agent may make a demand therefore upon theBorrower, and the Borrower shall pay such amount to the Administrative Agent,together with interest thereon for the

 

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Compensation Period at arate per annum equal to the rate of interest applicable to the applicableBorrowing.  Nothing herein shall bedeemed to relieve any Lender from its obligation to fulfill its commitment orto prejudice any rights that the Administrative Agent or the Borrower may haveagainst any Lender as a result of any default by such Lender hereunder.

 

A notice of theAdministrative Agent to any Lender or the Borrower with respect to any amountowing under this subsection (c) shall be conclusive, absentmanifest error.

 

(d)                                 Ifany Lender makes available to the Administrative Agent funds for any Loan to bemade 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 AdministrativeAgent because the conditions to the applicable Credit Extension set forth in Article IVare not satisfied or waived in accordance with the terms hereof, theAdministrative Agent shall return such funds (in like funds as received fromsuch Lender) to such Lender, without interest.

 

(e)                                  Theobligations of the Lenders hereunder to make Loans and to fund participationsin Letters of Credit and Swingline Loans are several and not joint.  The failure of any Lender to make any Loan orto fund any such participation on any date required hereunder shall not relieveany other Lender of its corresponding obligation to do so on such date, and noLender shall be responsible for the failure of any other Lender to so make itsLoan or purchase its participation.

 

(f)                                    Nothingherein shall be deemed to obligate any Lender to obtain the funds for any Loanin any particular place or manner or to constitute a representation by anyLender that it has obtained or will obtain the funds for any Loan in anyparticular place or manner.

 

(g)                                 Ifat any time insufficient funds are received by or are available to theAdministrative Agent to pay fully all amounts of principal, L/C Borrowings,interest and fees then due hereunder, such funds shall be applied (i) first,toward costs and expenses (including Attorney Costs and amounts payable under Article III)incurred by the Administrative Agent and each Lender, (ii) second,toward repayment of interest and fees then due hereunder, ratably among theparties entitled thereto in accordance with the amounts of interest and feesthen due to such parties, and (iii) third, toward repayment ofprincipal and L/C Borrowings then due hereunder, ratably among the partiesentitled thereto in accordance with the amounts of principal and L/C Borrowingsthen due to such parties.

 

(h)                                 Iffunds are not available to the Borrower to pay any Obligation in full when due,the Borrower shall cause its Subsidiaries, through dividend, other equitydistribution, equity repurchase/redemption, repayment/repurchase of Funded Debtor otherwise, to provide the Borrower with cash sufficient to pay suchObligation in full when due, notwithstanding any Contractual Obligationslimiting the ability of the Subsidiaries to make Restricted Payments.

 

## **2.12**                        Sharing of Payments.

## ** **

If, other than asexpressly provided elsewhere herein, any Lender shall obtain on account of theLoans made by it, or the participations in L/C Obligations or in SwinglineLoans held by it (excluding any amounts applied by the Swingline Lender tooutstanding Swingline Loans), any payment (whether voluntary, involuntary,through the exercise of any right of set-off, or otherwise) in excess of itsratable share (or other share contemplated hereunder) thereof, such Lendershall immediately (a) notify the Administrative Agent of such fact, and(b) purchase from the other Lenders such participations in the Loans madeby them and/or such subparticipations in the participations in L/C Obligationsor Swingline Loans held by them, as the case may be, as shall be necessary tocause such purchasing Lender to share

 

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the excess payment inrespect of such Loans or such participations, as the case may be, pro rata witheach of them; provided, however, that if all or any portion of suchexcess payment is thereafter recovered from the purchasing Lender under any ofthe circumstances described in Section 10.05 (including pursuant to anysettlement entered into by the purchasing Lender in its discretion), suchpurchase shall to that extent be rescinded and each other Lender shall repay tothe purchasing Lender the purchase price paid therefore, together with anamount equal to such paying Lender’s ratable share (according to the proportionof (i) the amount of such paying Lender’s required repayment to(ii) the total amount so recovered from the purchasing Lender) of anyinterest or other amount paid or payable by the purchasing Lender in respect ofthe total amount so recovered, without further interest thereon.  The Borrower agrees that any Lender sopurchasing a participation from another Lender may, to the fullest extentpermitted by law, exercise all its rights of payment (including the right ofset-off, but subject to Section 10.08) with respect to suchparticipation as fully as if such Lender were the direct creditor of theBorrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusiveand binding in the absence of manifest error) of participations purchased underthis Section 2.12 and will in each case notify the Lendersfollowing any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section2.12 shall from and after such purchase have the right to give allnotices, requests, demands, directions and other communications under thisCredit Agreement with respect to the portion of the Obligations purchased tothe same extent as though the purchasing Lender were the original owner of theObligations purchased.

 

## **2.13**                        Evidence of Debt.

 

(a)                                  TheCredit Extensions made by each Lender shall be evidenced by one or moreaccounts or records maintained by such Lender and by the Administrative Agentin the ordinary course of business.  Theaccounts or records maintained by the Administrative Agent and each Lendershall be conclusive absent manifest error of the amount of the CreditExtensions made by the Lenders to the Borrower and the interest and paymentsthereon.  Any failure to so record or anyerror in doing so shall not, however, limit or otherwise affect the obligationof the Borrower hereunder to pay any amount owing with respect to theObligations.  In the event of anyconflict between the accounts and records maintained by any Lender and theaccounts and records of the Administrative Agent in respect of such matters,the accounts and records of the Administrative Agent shall control in theabsence of manifest error.  Upon therequest of any Lender made through the Administrative Agent,****the Borrower shall execute and deliver to theAdministrative Agent a Note for such Lender, which shall evidence such Lender’sLoans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon thedate, Type (if applicable), amount and maturity of its Loans and payments withrespect thereto.

 

(b)                                 Inaddition to the accounts and records referred to in subsection (a), eachLender and the Administrative Agent shall maintain in accordance with its usualpractice accounts or records evidencing the purchases and sales by such Lenderof participations in Letters of Credit and Swingline Loans.  In the event of any conflict between theaccounts and records maintained by the Administrative Agent and the accountsand records of any Lender in respect of such matters, the accounts and recordsof the Administrative Agent shall control in the absence of manifest error.

 

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# **ARTICLE IIITAXES, YIELD PROTECTION AND ILLEGALITY**

## ** **

## **3.01**                        Taxes.

 

(a)                                  PaymentsFree of Taxes.  Any and all paymentsby or on account of any obligation of the Borrower hereunder or under any otherCredit Document shall be made free and clear of and without reduction orwithholding for any Indemnified Taxes or Other Taxes, provided that ifthe Borrower shall be required by applicable law to deduct any IndemnifiedTaxes (including any Other Taxes) from such payments, then (i) the sum payableshall be increased as necessary so that after making all required deductions(including deductions applicable to additional sums payable under this Section)the Administrative Agent, Lender or L/C Issuer, as the case may be, receives anamount equal to the sum it would have received had no such deductions beenmade, (ii) the Borrower shall make such deductions and (iii) the Borrower shalltimely pay the full amount deducted to the relevant Governmental Authority inaccordance with applicable law.

 

(b)                                 Paymentof Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrowershall timely pay any Other Taxes to the relevant Governmental Authority inaccordance with applicable law.

 

(c)                                  Indemnificationby the Borrower.  The Borrower shallindemnify the Administrative Agent, each Lender and the L/C Issuer, within 10days after demand therefor, for the full amount of any Indemnified Taxes orOther Taxes (including Indemnified Taxes or Other Taxes imposed or asserted onor attributable to amounts payable under this Section) paid by theAdministrative Agent, such Lender or the L/C Issuer, as the case may be, andany penalties, interest and reasonable expenses arising therefrom or withrespect thereto, whether or not such Indemnified Taxes or Other Taxes werecorrectly or legally imposed or asserted by the relevant GovernmentalAuthority.  A certificate as to theamount of such payment or liability delivered to the Borrower by a Lender orthe L/C Issuer (with a copy to the Administrative Agent), or by theAdministrative Agent on its own behalf or on behalf of a Lender or the L/CIssuer, shall be conclusive absent manifest error.

 

(d)                                 Evidenceof Payments.  As soon as practicableafter any payment of Indemnified Taxes or Other Taxes by the Borrower to aGovernmental Authority, the Borrower shall deliver to the Administrative Agentthe original or a certified copy of a receipt issued by such Governmental Authorityevidencing such payment, a copy of the return reporting such payment or otherevidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e)                                  Statusof Lenders.  Any Foreign Lender shalldeliver to the Borrower and theAdministrative Agent (in such number of copies as shall be requested by therecipient) on or prior to the date on which such Foreign Lender becomes aLender under this Credit Agreement (and from time to time thereafter upon therequest of the Borrower or the Administrative Agent, unless such ForeignLender is unable to provide such form due to a change in law arisingsubsequent to the time at which such Foreign Lender became a Lenderhereunder), whichever of the following is applicable and which demonstratesthat such Foreign Lender is entitled to complete exemption from any UnitedStates withholding tax with respect to payments under this Credit Agreement orany other Credit Document:

 

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

 

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

 

(iii)                               inthe case of a Foreign Lender claiming the benefits of the exemption forportfolio interest under section 881(c) of the Code, (x) a certificate tothe effect that such Foreign Lender is not (A) a “bank” within the meaning ofsection 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrowerwithin the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlledforeign corporation” described in section 881(c)(3)(C) of the Code and (y) dulycompleted copies of Internal Revenue Service Form W-8BEN, or

 

(iv)                              anyother form prescribed by applicable law as a basis for claiming exemption fromor a reduction in United States Federal withholding tax duly completed togetherwith such supplementary documentation as may be prescribed by applicable law topermit the Borrower to determine the withholding or deduction required to bemade.

 

Any Lender that is not aForeign Lender shall deliver to the Borrower and the Administrative Agent (insuch number of copies as shall be requested by the recipient) on or prior tothe date on which such Lender becomes a Lender under this Credit Agreement (andfrom time to time thereafter upon the request of the Borrower or theAdministrative Agent), duly completed copies of Internal Revenue Service FormW-9.

 

(f)                                    Treatmentof Certain Refunds.  If theAdministrative Agent, any Lender or the L/C Issuer determines, in its solediscretion, that it has received a refund of any Taxes or Other Taxes as towhich it has been indemnified by the Borrower or with respect to which theBorrower has paid additional amounts pursuant to this Section, it shall pay tothe Borrower an amount equal to such refund (but only to the extent ofindemnity payments made, or additional amounts paid, by the Borrower under thisSection with respect to the Taxes or Other Taxes giving rise to such refund),net of all out-of-pocket expenses of the Administrative Agent, such Lender orthe L/C Issuer, as the case may be, and without interest (other than anyinterest paid by the relevant Governmental Authority with respect to suchrefund), provided that the Borrower, upon the request of theAdministrative Agent, such Lender or the L/C Issuer, agrees to repay the amountpaid over to the Borrower (plus any penalties, interest or other chargesimposed by the relevant Governmental Authority) to the Administrative Agent,such Lender or the L/C Issuer in the event the Administrative Agent, suchLender or the L/C Issuer is required to repay such refund to such GovernmentalAuthority.  This subsection shall not beconstrued to require the Administrative Agent, any Lender or the L/C Issuer tomake available its tax returns (or any other information relating to its taxesthat it deems confidential) to the Borrower or any other Person.

 

## **3.02**                        Illegality.

## ** **

If any Lender determinesthat any Law has made it unlawful, or that any Governmental Authority hasasserted that it is unlawful, for any Lender or its applicable Lending Officeto make, maintain or fund Eurocurrency Rate Loans in the Applicable Currency,or to determine or charge interest rates based upon the Eurocurrency Rate inthe Applicable Currency, or any Governmental Authority has imposed materialrestrictions on the authority of such Lender to purchase or sell, or to takedeposits of, any Applicable Currency in the applicable interbank market, then,on notice thereof by such Lender to the Borrower through the AdministrativeAgent, any obligation of such Lender to make or continue Eurocurrency RateLoans in the Applicable Currency or to convert Base Rate Loans to EurocurrencyRate Loans in the Applicable Currency shall be suspended until such Lendernotifies the Administrative Agent and the Borrower that the circumstancesgiving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowershall, upon demand from such Lender (with a copy to the Administrative Agent),prepay or, if applicable, convert all such Eurocurrency Rate Loans of suchLender to Dollar-denominated Base Rate Loans, either on the last day of theInterest Period therefore, if such Lender may lawfully

 

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continue to maintain suchEurocurrency Rate Loans to such day, or immediately, if such Lender may notlawfully continue to maintain such Eurocurrency Rate Loans.  Upon any such prepayment or conversion, theBorrower shall also pay accrued interest on the amount so prepaid orconverted.  Each Lender agrees todesignate a different Lending Office if such designation will avoid the needfor such notice and will not, in the good faith judgment of such Lender,otherwise be materially disadvantageous to such Lender.

 

## **3.03**                        Inability to Determine Rates.

## ** **

(a)                                  Ifthe Required Lenders determine that for any reason (i) deposits in theApplicable Currency are not being offered to banks in the applicable offshoreinterbank market for such currency for the applicable amount and InterestPeriod, (ii) adequate and reasonable means do not exist for determining theEurocurrency Base Rate for any requested Interest Period or (iii) that theEurocurrency Rate for any requested Interest Period does not adequately andfairly reflect the cost to such Lenders of funding such Loan, theAdministrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders tomake or maintain Eurocurrency Rate Loans in the Applicable Currencies shall besuspended until the Administrative Agent (upon the instruction of the RequiredLenders) revokes such notice.  Uponreceipt of such notice, the Borrower may revoke any pending request for aBorrowing of, conversion to or continuation of Eurocurrency Rate Loans or,failing that, will be deemed to have converted such request into a request fora Borrowing of Loans that are Dollar-denominated Base Rate Loans in the DollarEquivalent of the amount specified therein.

 

(b)                                 Ifthe Mandatory Cost Reference Lender’s Commitment shall terminate, or for anyreason whatsoever the Mandatory Cost Reference Lender shall cease to be aLender hereunder, the Mandatory Cost Reference Lender shall thereupon cease tobe the Mandatory Cost Reference Lender and, when necessary, the Mandatory CostRate shall be determined on the basis of the rates as determined by theAdministrative Agent in accordance with Schedule 3.03.

 

## **3.04**                        Increased Cost; Capital Adequacy;Reserves on Eurodollar Rate Loans.

 

(a)                                  Ifany Lender determines that as a result of the introduction of or any change inor in the interpretation of any Law, or such Lender’s compliance therewith,there shall be any increase in the cost to such Lender of agreeing to make ormaking, funding or maintaining Eurocurrency Rate Loans or (as the case may be)issuing or participating in Letters of Credit, or a reduction in the amountreceived or receivable by such Lender in connection with any of the foregoing(excluding for purposes of this subsection (a) any suchincreased costs or reduction in amount resulting from (i) taxes (includingTaxes and Other Taxes), all of which are addressed in Section 3.01 and(ii) reserve requirements contemplated by Section 3.04(c)),then from time to time upon demand of such Lender (with a copy of such demandto the Administrative Agent), the Borrower shall pay to such Lender suchadditional amounts as will compensate such Lender for such increased cost orreduction.

 

(b)                                 Ifany Lender determines that the introduction of any Law regarding capitaladequacy or any change therein or in the interpretation thereof, or complianceby such Lender (or its Lending Office) therewith, has the effect of reducingthe rate of return on the capital of such Lender or any corporation controllingsuch Lender as a consequence of such Lender’s obligations hereunder (takinginto consideration its policies with respect to capital adequacy and suchLender’s desired return on capital), then from time to time upon demand of suchLender (with a copy of such demand to the Administrative Agent), the Borrowershall pay to such Lender such additional amounts as will compensate such Lenderfor such reduction, to the extent that such Lender is unable to avoid ormaterially diminish or mitigate the need for payment of such additional amountsthrough the use of commercially reasonable effects.

 

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(c)                                  TheBorrower shall pay to each Lender, as long as such Lender shall be required tomaintain reserves with respect to liabilities or assets consisting of orincluding eurocurrency funds or deposits (currently known as “eurocurrencyliabilities”), additional interest on the unpaid principal amount of eachEurocurrency Rate Loan equal to the actual costs of such reserves allocated tosuch Loan by such Lender (as determined by such Lender in good faith, whichdetermination shall be conclusive), which shall be due and payable on each dateon which interest is payable on such Loan, provided the Borrower shallhave received at least ten days’ prior notice (with a copy to theAdministrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice fifteen daysprior to the relevant Interest Payment Date, such additional interest shall bedue and payable ten 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 shallpromptly compensate such Lender for and hold such Lender harmless from anyloss, cost or expense incurred by it as a result of:

 

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

 

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

 

(c)                                  anyfailure by the Borrower to make payment of any Loan or reimbursement of anydrawing under any Letter of Credit (or interest due thereon) denominated in anAlternative Currency on its scheduled due date or any payment thereof in adifferent currency; or

 

(d)                                 anyassignment of a Eurocurrency Rate Loan on a day other than the last day of theInterest Period therefore as a result of a request by the Borrower pursuant to Section10.13;

 

including any loss ofanticipated profits, any foreign exchange loss and any loss or expense arisingfrom the liquidation or reemployment of funds obtained by it to maintain suchLoan or from fees payable to terminate the deposits from which such funds wereobtained.  The Borrower shall also pay anycustomary administrative fees charged by such Lender in connection with theforegoing.

 

For purposes ofcalculating amounts payable by the Borrower to the Lenders under this Section 3.05,each Lender shall be deemed to have funded each Eurocurrency Rate Loan made byit at the Eurocurrency Base Rate used in determining the Eurocurrency Rate****for such Loan by a matching deposit or other borrowing inthe applicable offshore interbank market for the Applicable Currency for acomparable amount and for a comparable period, whether or not such EurocurrencyRate Loan was in fact so funded.

 

## **3.06**                        Matters Applicable to All Requestsfor Compensation.

## ** **

                                                Acertificate of the Administrative Agent or any Lender claiming compensationunder this Article III and setting forth the additional amount oramounts to be paid to it hereunder shall be conclusive in the absence ofmanifest error.  In determining suchamount, the Administrative Agent or

 

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such Lender may use anyreasonable averaging and attribution methods. Borrower shall not have any obligation to pay any additional amountsowing under this Article III for any period which is more than onehundred twenty (120) days prior to the date upon which the request for paymenttherefore is delivered to Borrower.  Uponany Lender making a claim for compensation under Sections 3.01 or 3.04,Borrower may remove and replace such Lender in accordance with Section 10.13hereof.

 

## **3.07**                        Survival Losses.

## ** **

All of the Borrower’sobligations under this Article III shall survive termination of theAggregate Revolving Commitments and repayment of all other Obligationshereunder.

 

# **ARTICLE IVCONDITIONS PRECEDENT TO CREDIT EXTENSIONS**

## ** **

## **4.01**                        Conditions to Initial CreditExtensions.

## ** **

The obligation of eachLender to make its initial Credit Extension hereunder is subject tosatisfaction of the following conditions precedent:

 

(a)                                  ExecutedCredit Documents.  The AdministrativeAgent’s receipt of counterparts of this Credit Agreement****andthe Notes requested by the Lenders, in each case, dated as of the Closing Date,duly executed by a Responsible Officer of the Borrower and by each Lender partythereto, and in form and substance satisfactory to the Administrative Agent andeach of the Lenders.

 

(b)                                 OrganizationDocuments, Etc.  The AdministrativeAgent’s receipt of a duly executed certificate of a Responsible Officer of theBorrower, in form and substance satisfactory to the Administrative Agent,attaching each of the following documents and certifying that each is true,correct and complete and in full force and effect as of the Closing Date:

 

(i)                                     CharterDocuments.  Copies of its articles oforganization or formation, certified to be true, correct and complete as of arecent date by the appropriate Governmental Authority of the jurisdiction ofits organization or formation;

 

(ii)                                  Bylaws.  Copies of its bylaws;

 

(iii)                               Resolutions.  Copies of its resolutions approving andadopting the Credit Documents to which it is party, the transactionscontemplated therein, and authorizing the execution and delivery thereof;

 

(iv)                              Incumbency.  Incumbency certificates identifying theResponsible Officers of the Borrower that are authorized to execute CreditDocuments and to act on the Borrower’s behalf in connection with the CreditDocuments; and

 

(v)                                 Good StandingCertificates.  Certificates of goodstanding or the equivalent from its jurisdiction of organization or formationand from each other jurisdiction where failure to be in good standing wouldreasonably be expected to have a Material Adverse Effect, in each casecertified as of a recent date by the appropriate Governmental Authority.

 

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(c)                                  Opinionsof Counsel.  The AdministrativeAgent’s receipt of duly executed favorable opinions of counsel to the Borrower,dated as of the Closing Date, in form and substance satisfactory to theAdministrative Agent and the Lenders.

 

(d)                                 FinancialStatements.  The AdministrativeAgent’s receipt of each of the following on or before the Closing Date:

 

(i)                                     The auditedconsolidated balance sheet of the Consolidated Group for the fiscal year endedDecember 31, 2003, together with related consolidated statements of operationsand retained earnings and of cash flows for such fiscal year (including thenotes thereto), prepared in accordance with GAAP; and

 

(ii)                                  The unauditedconsolidated financial statements of the Consolidated Group for the fiscalquarter ended March 31, 2004, together with related consolidated statements ofoperations and retained earnings and of cash flows for such fiscal quarter,prepared in accordance with GAAP.

 

(e)                                  OfficerCertificates.  The AdministrativeAgent’s receipt of a certificate or certificates of a Responsible Officer ofthe Borrower, dated as of the Closing Date, in form and substance satisfactoryto the Administrative Agent, certifying each of the following:

 

(i)                                     Consents.  No consents, licenses or approvals arerequired in connection with the execution, delivery and performance by theBorrower of the Credit Documents, other than (A) as are in full force andeffect and, to the extent requested by the Administrative Agent, are attachedthereto or (B) consents, licenses or approvals for which failure to be in fullforce and effect would not reasonably be expected to have a Material AdverseEffect;

 

(ii)                                  Material AdverseEffect.  There has not occurred amaterial adverse change since December 31, 2003 in the financial condition,operations or properties of the Consolidated Group taken as a whole or theability of the Borrower to perform in any material respect under this CreditAgreement or any of the other Credit Documents;

 

(iii)                               Financial Statements.  The annual and quarterly financial statementsfiled by the Parent with the SEC (A) were prepared in accordance with GAAPconsistently applied throughout the period covered thereby, except as otherwiseexpressly noted therein, (B) fairly present the financial condition of theConsolidated Group as of the date thereof and the results of operations for theperiod covered thereby in accordance with GAAP consistently applied throughoutthe period covered thereby, except as otherwise expressly noted therein (andwith respect to such quarterly statements, subject to the absence of footnotesand to normal year-end accounting adjustments);

 

(iv)                              Financial CovenantCalculations.  The calculation of thefinancial covenants set forth in Section 7.05 as of the end of the mostrecent fiscal quarter of the Borrower ending prior to the Closing Date; and

 

(v)                                 Debt Ratings.  The current Debt Ratings.

 

(f)                                    Other.  The Administrative Agent’s receipt of suchother assurances, certificates, documents, consents or opinions dated as of theClosing Date as the Administrative Agent or the Lenders may reasonably require.

 

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(g)                                 Lenders’Tax Forms.  The Borrower’s receipt ofthe applicable tax form of each Lender demonstrating that (i) it is a domesticlender exempt from U.S. withholding taxes or (ii) it is a Foreign Lenderentitled to complete exemption from any United States withholding tax withrespect to payments under this Credit Agreement or any other Credit Document asprovided in Section 3.01(e).

 

(h)                                 Feesand Expenses.  All fees and expenses(including, unless waived by the Administrative Agent, Attorney Costs) requiredto be paid on or before the Closing Date shall have been paid.

 

The Request for CreditExtension submitted by the Borrower for the initial Credit Extension shall bedeemed to be a representation and warranty by the Borrower that the conditionsspecified in Sections 4.02(a) have been satisfied on and as ofthe Closing Date.

 

## **4.02**                        Conditions to all Credit Extensions.

## ** **

The obligation of eachLender to honor any Request for Credit Extension is subject to the followingconditions precedent:

 

(a)                                  Therepresentations and warranties of the Borrower contained in Article Vshall be true and correct on and as of the date of such Credit Extension,except to the extent that such representations and warranties specificallyrefer to an earlier date.

 

(b)                                 NoDefault or Event of Default exists or would result from such proposed CreditExtension.

 

(c)                                  TheAdministrative Agent and, if applicable, the L/C Issuer or the Swingline Lendershall have received a Request for Credit Extension in accordance with therequirements hereof.

 

(d)                                 Inthe case of a Credit Extension to be denominated in an Alternative Currency,there shall not have occurred any change in national or internationalfinancial, political or economic conditions or currency exchange rates orexchange controls which in the reasonable opinion of the Administrative Agent,the Required Lenders (in the case of any Loans to be denominated in anAlternative Currency) or the L/C Issuer (in the case of any Letter of Credit tobe denominated in an Alternative Currency) would make it impracticable for suchCredit Extension to be denominated in the relevant Alternative Currency.

 

Each Request for CreditExtension (including the initial Credit Extension) submitted by the Borrowershall be deemed to be a representation and warranty by the Borrower that theconditions specified in Sections 4.02(a) and (b) havebeen satisfied on and as of the date of the applicable Credit Extension.

 

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# **ARTICLE VREPRESENTATIONS AND WARRANTIES**

 

                                                Borrowerrepresents and warrants to Administrative Agent and Lenders that:

 

## **5.01**                        Corporate Existence.

## ** **

The Borrower is acorporation duly organized, validly existing and in good standing under thelaws of the State of Delaware.

 

## **5.02**                        Power and Authority.

## ** **

The execution anddelivery by the Borrower of this Credit Agreement and the other CreditDocuments and the performance by the Borrower of its respective obligationsunder this Credit Agreement and the other Credit Documents are within thecorporate powers of the Borrower, have been duly authorized by all necessarycorporate action on the part of the Borrower (including without limitation anynecessary shareholder action), have been duly executed and delivered, havereceived all third party or governmental licenses, authorizations, consents andapprovals the failure of which to receive would reasonably be expected to havea Material Adverse Effect, and do not and will not (i) violate any Requirementsof Law which is binding on Borrower or any of its Subsidiaries, except to theextent that any such violations would not reasonably be expected to have aMaterial Adverse Effect, (ii) contravene or conflict with, or result in abreach of, any provision of the certificate of incorporation, by-laws or otherorganizational documents of the Borrower or any of its Subsidiaries or of anyagreement, indenture, instrument or other document which is binding on Borroweror any of its Subsidiaries, except, in the case of any such agreements, indentures,instruments or other documents, as would not reasonably be expected to have aMaterial Adverse Effect, or (iii) result in, or require, the creation orimposition of any Lien on any asset Borrower or any of its Subsidiaries, exceptto the extent any of the foregoing Liens referenced in this subsection (iii)are permitted pursuant to the Credit Documents or as would not otherwisereasonably be expected to have a Material Adverse Effect.

 

**5.03****                        Enforceability.**

 

This CreditAgreement and the other Credit Documents executed by the Borrower prior to andas of such date, constitute the legal, valid and binding obligation of theBorrower enforceable against Borrower in accordance with their terms, subjectto bankruptcy, insolvency, liquidation, reorganization, fraudulent conveyanceand similar laws affecting creditors’ rights generally, and general principlesof equity.

 

## **5.04**                        Legal Proceedings.

## ** **

Other than asdescribed in Schedule 5.04 hereto, there are no material actions, suitsor proceedings pending or, to its knowledge, threatened against Borrower in anycourt or before any Governmental Authority (nor would any order, judgment ordecree have been issued or proposed to be issued by any Governmental Authorityto set aside, restrain, enjoin or prevent the full performance of any CreditDocument or any transaction contemplated thereby) that (i) question thevalidity or enforceability of any Credit Document or any transaction describedin the Credit Documents or (ii) shall have or would reasonably be expectedto have a Material Adverse Effect.

 

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## **5.05**                        No Material Adverse Effect.

## ** **

Since December 31, 2003,there is no continuing event or circumstance, either individually or in theaggregate, that has had or would reasonably be expected to have a MaterialAdverse Effect.

 

## **5.06**                        Compliance with Law.

## ** **

The Borrower andits Subsidiaries are in compliance with applicable Requirements of Law, exceptto the extent that non-compliance would not, in the aggregate, be reasonablyexpected to have a Material Adverse Effect.

 

## **5.07**                        Use of Proceeds.

## ** **

Except asotherwise contemplated by the Credit Documents, the Borrower shall not use theproceeds of any Loan for any purpose other than working capital, acquisitions,dividends, capital expenditures and other lawful corporate purposes.

 

## **5.08**                        Disclosure.

## ** **

All informationother than Projections (defined below) heretofore or contemporaneously herewithfurnished by the Borrower or any of their Subsidiaries to Administrative Agentor any Lender for purposes of or in connection with this Credit Agreement andthe transactions contemplated hereby is, and all information other thanProjections hereafter furnished by or on behalf of the Borrower or any of itsSubsidiaries to the Administrative Agent or any Lender pursuant hereto or inconnection herewith will be, true and accurate in all material respects on thedate as of which such information is dated or certified, and such information,taken as a whole, does not and will not omit to state any material factnecessary to make such information, taken as a whole, not misleading.  All financial projections concerning theBorrower and its Consolidated Subsidiaries (“Projections) heretofore orcontemporaneously herewith furnished by the Borrower or any of its ConsolidatedSubsidiaries to Administrative Agent or any Lender for purposes of or inconnection with this Credit Agreement and the transactions contemplated herebyis, and all Projections hereafter furnished by or on behalf of the Borrower orany of its Consolidated Subsidiaries to the Administrative Agent or any Lenderpursuant hereto or in connection herewith will be, prepared in good faith basedupon assumptions Borrower believes are reasonable as of the date theProjections are prepared.

 

**5.09****                        Absence of Default.**

 

No Default orEvent of Default has occurred and is continuing.

 

**5.10****                        ERISA Compliance.**

 

(a)                                  EachPlan is in compliance in all material respects with the applicable provisionsof ERISA, the Internal Revenue Code and other federal or state Laws.  Each Plan that is intended to qualify underSection 401(a) of the Internal Revenue Code has received a favorabledetermination letter from the IRS or an application for such a letter iscurrently pending before the IRS with respect thereto and, to the bestknowledge of the Borrower, nothing has occurred that would prevent, or causethe loss of, such qualification.  TheBorrower and each ERISA Affiliate have made all required contributions to eachPlan subject to Section 412 of the Internal Revenue Code, and noapplication for a funding waiver or an

 

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extension of anyamortization period pursuant to Section 412 of the Internal Revenue Codehas been made with respect to any Plan.

 

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

 

(c)                                  (i) NoERISA Event has occurred or is reasonably expected to occur; (ii) as ofthe Closing Date, in the aggregate, Unfunded Pension Liabilities of theConsolidated Group do not exceed $75 million; (iii) neither the Borrowernor any ERISA Affiliate has incurred, or reasonably expects to incur, anyliability under Title IV of ERISA with respect to any Pension Plan (otherthan premiums due and not delinquent under Section 4007 of ERISA);(iv) neither the Borrower nor any ERISA Affiliate has incurred, orreasonably expects to incur, any liability (and no event has occurred that, withthe giving of notice under Section 4219 of ERISA, would result in suchliability) under Sections 4201 or 4243 of ERISA with respect to aMultiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliatehas engaged in a transaction that would reasonably be expected to be subject toSections 4069 or 4212(c) of ERISA.

 

## **5.11**                        Financial Condition.

## ** **

The consolidatedbalance sheet of the Consolidated Group as of December 31, 2003, together withrelated consolidated statements of operations and retained earnings and of cashflows for the year ended December 31, 2003 and the consolidated balance sheetof the Consolidated Group as of March 31, 2004, together with relatedconsolidated statements of operations and retained earnings and of cash flowsfor the quarter ended March 31, 2004, fairly present in all material respectsthe consolidated financial condition of the Parent and its Subsidiaries as atsuch dates and the consolidated results of the operations of the Parent and itsSubsidiaries for the periods ended on such dates, all in accordance with GAAP,subject with respect to the financial statements for the quarter ended March31, 2004, to changes resulting from audit and normal year-end accountingadjustments.

 

## **5.12**                        Margin Regulations; InvestmentCompany Act; Public Utility Holding Company Act.

## ** **

(a)                                  TheBorrower is not engaged and will not engage, principally or as one of itsimportant activities, in the business of purchasing or carrying “margin stock”(within the meaning of Regulation U issued by the FRB), or extendingcredit for the purpose of purchasing or carrying margin stock.  Following the application of the proceeds ofeach Borrowing or drawing under each Letter of Credit, not more than 25% of thevalue of the assets (either of the Borrower only or of the Consolidated Groupon a consolidated basis) will be margin stock.

 

(b)                                 Noneof the Borrower, any Person Controlling the Borrower, or any Subsidiary(i) is a “holding company,” or a “subsidiary company” of a “holdingcompany,” or an “affiliate” of a “holding company” or of a “subsidiary company”of a “holding company,” within the meaning of the Public Utility HoldingCompany Act of 1935, or (ii) is or is required to be registered as an“investment company” under the Investment Company Act of 1940.

 

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## **5.13**                        Insurance.

## ** **

The properties of theConsolidated Group are insured with financially sound and reputable insurancecompanies not Affiliates of the Borrower, in such amounts, with suchdeductibles and covering such risks as are customarily carried by companiesengaged in similar businesses and owning similar properties in localities wherethe Borrower or the applicable Subsidiary operates**;**providedthat the Consolidated Group may self-insure to the extent customary amongcompanies engaged in similar businesses and operating in similar localities.

 

# **ARTICLE VI  AFFIRMATIVE COVENANTS**

 

So long as anyObligation remains unpaid or unperformed, or any portion of the Commitmentsremains outstanding, Borrower shall, and shall (except in the case of theBorrower’s reporting covenants) cause each Subsidiary to:

 

## **6.01**                        Preservation of Existence.

## ** **

Except as permitted bythe express provisions of this Credit Agreement, preserve and maintain itsseparate legal existence and all rights, franchises, licenses and privilegesnecessary to the conduct of its business, and qualify and remain qualified as aforeign corporation (or partnership, limited liability company or other suchsimilar entity, as the case may be) and authorized to do business in eachjurisdiction, except to the extent failure to do any of the foregoing would notreasonably be expected to have a Material Adverse Effect.

 

## **6.02**                        Payment of Taxes and Claims.

## ** **

Pay, discharge andperform (a) all taxes, assessments and other governmental charges or leviesthat may be imposed or assessed upon it or upon its income or profits, or uponany of its property before they shall become delinquent, (b) all lawful claims(including claims for labor, materials and supplies which, if unpaid might giverise to a Lien upon any of its properties), (c) all other indebtedness,obligations and liabilities in accordance with customary trade practices,except to the extent failure to do any of the foregoing would not reasonably beexpected to have a Material Adverse Effect, except that the Borrower andits Subsidiaries may contest any item described in this Section 6.02 ingood faith so long as adequate reserves are maintained with respect thereto inaccordance with GAAP, unless the failure to make such payment would not bereasonably expected to have a Material Adverse Effect.

 

## **6.03**                        Inspection Rights.

 

Provided that theAdministrative Agent uses reasonable efforts to minimize disruption to thebusinesses of the Borrower and its Subsidiaries (including, without limitation,providing to the Borrower reasonable notice of visits and inspectionshereunder), permit representatives of Administrative Agent, from time to timeand subject to the confidentiality provisions hereof, to visit and inspect theirproperties and to have such access to the books and records of the Borrower andits Subsidiaries, in each case, as reasonably requested by the AdministrativeAgent for purposes of administering the credit evidenced by this CreditAgreement, and to make photocopies or photographs thereof and to write down andrecord any information such representative obtains, and the Borrower and itsSubsidiaries shall permit the Administrative Agent or its representatives toinvestigate and verify the accuracy of information provided to

 

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the Administrative Agentor the Lenders, and to discuss all such matters with the officers, employeesand representatives of such Person, except that all intellectual property ofthe Borrower and its Subsidiaries are excluded from any such inspection orinvestigation.  Unless and until aDefault or an Event of Default shall have occurred and be continuing, eachindividual Lender shall be limited to one such inspection in any calendar yearand all such visitations and inspections shall be at the expense of therespective Lender and shall be conducted during normal business hours unlessotherwise agreed by the Borrower and Administrative Agent; provided, however,that all such visitations and inspections conducted after the occurrence andduring the continuance of any Default or Event of Default shall be at theBorrower’s sole cost and expense and shall be conducted without limitation asto normal business hours.

 

## **6.04**                        Financial Statements.

## ** **

Deliver to theAdministrative Agent and each Lender, in form and substance reasonablysatisfactory to the Administrative Agent and the Required Lenders:

 

(a)                                  As soon as available,and in any event within 105 days after the close of each fiscal year of theParent and its Consolidated Subsidiaries, a consolidated balance sheet of theParent and its Consolidated Subsidiaries as of the end of such fiscal year,together with related consolidated statements of operations and retainedearnings and of cash flows for such fiscal year, in each case setting forth incomparative form consolidated figures for the preceding fiscal year, all suchfinancial information described above to be in reasonable form and detail andcertified by independent certified public accountants of recognized nationalstanding reasonably acceptable to Administrative Agent (provided that Ernst& Young LLP and any other nationally recognized accounting firm shall bedeemed acceptable to Administrative Agent), and whose opinion shall be to theeffect that such financial statements have been prepared in accordance withGAAP (except for changes with which such accountants concur) and shall not belimited as to the scope of the audit or qualified as to the status of theParent and its Consolidated Subsidiaries, on a consolidated basis, as a goingconcern.

 

(b)                                 As soon as available,and in any event within 60 days after the close of each of the first threefiscal quarters of the Parent and its Consolidated Subsidiaries, a consolidatedbalance sheet of the Parent and its Consolidated Subsidiaries as of the end ofsuch fiscal quarter, together with related consolidated statements ofoperations and retained earnings and of cash flows for such fiscal quarter, ineach case setting forth in comparative form consolidated figures for thecorresponding period of the preceding fiscal year, all such financialinformation described above to be in reasonable form and detail and reasonablyacceptable to the Administrative Agent and the Required Lenders, and accompaniedby a certificate of a Responsible Officer of the Borrower to the effect thatsuch quarterly financial statements fairly present in all material respects thefinancial condition of the Consolidated Group and have been prepared inaccordance with GAAP, subject to changes resulting from audit and normalyear-end accounting adjustments.

 

## **6.05**                        Certificates, Notices and Other Information.

## ** **

Deliver to theAdministrative Agent, in form and substance reasonably satisfactory to theAdministrative Agent and the Required Lenders:

 

(a)                                  promptlyafter request by the Administrative Agent or any Lender, copies of any detailedmanagement letters submitted to the board of directors (or the audit committeeof the board of directors) of the Borrower by independent accountants inconnection with the accounts or books of the Borrower or any Subsidiary, or anyaudit of any of them;

 

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(b)                                 promptlyafter the occurrence thereof, notice of any Material Adverse Effect;

 

(c)                                  promptly,notice of any announcement by either of the Rating Services of any change in aDebt Rating if applicable/available; and

 

(d)                                 Within ten (10) daysafter the date of delivery of the annual and quarterly financial statementspursuant to Section 6.04(a) and (b), but not in any eventlater than 105 days after the close of each fiscal year and within 60 daysafter the close of each of the first three fiscal quarters of the Parent andits Consolidated Subsidiaries, a certificate of a Responsible Officer of theBorrower substantially in the form of Exhibit 6.05(d), (i) demonstratingcompliance with the financial covenants contained in Section 7.05by calculation thereof as of the end of each such fiscal period and (ii)stating that no Default or Event of Default with respect to the Borrowerexists, or if any Default or Event of Default with respect to the Borrower doesexist, specifying the nature and extent thereof and what action the Borrowerproposes to take with respect thereto.

 

(e)                                  Upon any ResponsibleOfficer of the Borrower obtaining knowledge thereof, the Borrower will givewritten notice to the Administrative Agent promptly of (i) the occurrence of anevent or condition consisting of a Default or Event of Default, specifying thenature and existence thereof and what action, if any, the Borrower proposes totake with respect thereto, and (ii) the occurrence of any of the following withrespect to Parent or any Consolidated Subsidiary (A) the pendency orcommencement of any litigation, arbitral or governmental proceeding againstsuch Person or the Properties which if adversely determined is likely to have aMaterial Adverse Effect, unless counsel to the Borrowers has reasonablydetermined that such litigation, arbitral or governmental proceeding has no likelihoodof being successful or (B) the institution of any proceedings against suchPerson with respect to, or the receipt of notice by such Person of potentialliability or responsibility for violation, or alleged violation of any federal,state or local law, rule or regulation, including but not limited to,Environmental Laws, if the potential penalties, judgments or awards resultingfrom any such alleged violations could have a Material Adverse Effect.

 

(f)                                    Withreasonable promptness upon any such request, such other information regardingthe businesses, properties or financial condition of the Consolidated Group asAdministrative Agent or any Lender may reasonably request.

 

Each notice pursuant tothis Section 6.05 shall be accompanied by a statement of a ResponsibleOfficer of the Borrower setting forth details of the occurrence referred totherein and stating what action Borrower has taken and proposes to take withrespect thereto.  Documents required tobe delivered pursuant to Section 6.04(a) or (b) or Section6.05(e) (to the extent any such documents are included in materialsotherwise filed with the SEC) may be delivered electronically and if sodelivered, shall be deemed to have been delivered on the date (i) on which theBorrower posts such documents, or provides a link thereto on the Borrower’swebsite on the Internet at the website address listed on Schedule 10.02;or (ii) on which such documents are posted on the Borrower’s behalf on anInternet or intranet website, if any, to which each Lender and theAdministrative Agent have access (whether a commercial, third-party website orwhether sponsored by the Administrative Agent); provided that: (i) theBorrower shall deliver paper copies of such documents to the AdministrativeAgent or any Lender that requests the Borrower to deliver such paper copiesuntil a written request to cease delivering paper copies is given by theAdministrative Agent or such Lender and (ii) the Borrower shall notify theAdministrative Agent and each Lender (by telecopier or electronic mail) of theposting of any such documents and provide to the Administrative Agent byelectronic mail electronic versions (i.e., soft copies) of suchdocuments.  Notwithstanding anythingcontained herein, in every instance the Borrower shall be required to providepaper copies of the Compliance Certificates required by Section 6.05(d)to the Administrative Agent.  Except forsuch Compliance Certificates, the Administrative Agent shall have no obligationto request the

 

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delivery or to maintaincopies of the documents referred to above, and in any event shall have noresponsibility to monitor compliance by the Borrower with any such request fordelivery, and each Lender shall be solely responsible for requesting deliveryto it or maintaining its copies of such documents.

 

## **6.06**                        Keeping of Records and Books ofAccount.

## ** **

Keep complete andaccurate books and records of its transactions in accordance with GAAP(including the establishment and maintenance of appropriate reserves).

 

## **6.07**                        Compliance With Laws.

## ** **

Comply with all laws(including, without limitation, Environmental Laws), rules, regulations andorders, and all applicable restrictions imposed by all GovernmentalAuthorities, applicable to it and its property (whether real, personal ormixed, or tangible or intangible) if noncompliance with any such law, rule,regulation, order or restriction would have a Material Adverse Effect.

 

## **6.08**                        Maintenance of Insurance.

## ** **

At all times maintain infull force and effect insurance (including worker’s compensation insurance,liability insurance, casualty insurance and business interruption insurance) insuch amounts, covering such risks and liabilities and with such deductibles orself-insurance retentions as are in accordance with normal industry practicefor companies engaged in similar activities in similar geographic areas as theBorrower and its Subsidiaries; provided that the Borrower and itsSubsidiaries may self-insure to the extent customary among companies engaged insimilar businesses and operating in similar localities.

 

## **6.09**                        Maintenance of Properties.

## ** **

Maintain and preserve itsproperties and equipment material to the conduct of its businesses in goodrepair, working order and condition, normal wear and tear and casualty andcondemnation excepted, and will make, or cause to be made, in such propertiesand equipment from time to time all repairs, renewals, replacements,extensions, additions, betterments and improvements thereto as may be needed orproper, to the extent and in the manner customary for companies in similarbusinesses, unless the failure to do any of the foregoing would not have aMaterial Adverse Effect.

 

## **6.10**                        Compliance With Agreements.

## ** **

Perform in all materialrespects all of its obligations under the terms of all material agreements,indentures, mortgages, security agreements or other debt instruments to whichit is a party or by which it is bound.

 

## **6.11**                        Use of Proceeds.

 

Use the proceeds ofExtensions of Credit for lawful general corporate purposes not otherwise incontravention of this Credit Agreement.

 

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# **ARTICLE VII  NEGATIVE COVENANTS**

 

So long as anyObligations remain unpaid or unperformed, or any portion of the Commitmentsremains outstanding, the Borrower shall not, nor shall it permit any Subsidiaryto, directly or indirectly:

 

## **7.01**                        Restricted Funded Debt.

## ** **

Permit any of itsSubsidiaries to contract, create, assume or otherwise incur any RestrictedFunded Debt if, after giving effect to any such incurrence, the aggregateprincipal amount of all outstanding Restricted Funded Debt of the Subsidiarieswould exceed fifty percent (50%) of Consolidated EBITDA for the fourconsecutive fiscal quarter period most recently ended prior to such incurrence,unless such excess amount of the Restricted Funded Debt to be incurred issubordinated (on terms and conditions reasonably satisfactory to the RequiredLenders) to the Obligations.

 

## **7.02**                        Liens.

## ** **

Contract, create, incur,assume or permit to exist any Lien with respect to any of its property orassets (including stock or other securities of any Person, including anySubsidiary), whether now owned or after acquired, except:

 

(a)                                  Liensincurred and pledges and deposits made in the ordinary course of business inconnection with worker’s compensation, unemployment insurance, old-age pensionsand other social security laws or regulations;

 

(b)                                 Lienssecuring the performance of bids, tenders, leases, contracts (other than forthe repayment of borrowed money), statutory obligations, surety, customs andappeal bonds and other obligations of like nature, incurred as an incident toand in the ordinary course of business;

 

(c)                                  Liensimposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s andvendors’ liens, incurred in good faith in the ordinary course of business andsecuring obligations which are not yet due or which are being contested;

 

(d)                                 Liensfor taxes, assessments and other charges or levies not yet due or which arebeing contested;

 

(e)                                  zoningrestrictions, easements, licenses, rights, reservations, provisions, covenants,conditions, waivers, restrictions on the use of property or minorirregularities of title (and with respect to leasehold interests, mortgages,obligations, liens and other encumbrances incurred, created, assumed orpermitted to exist and arising by, through or under or asserted by a landlordor owner of the leased property, with or without consent of the lessee), noneof which materially impairs the use of any parcel of property material to theoperation of the business of the Borrower and its Subsidiaries taken as awhole;

 

(f)                                    Liensupon any property acquired, constructed or improved by the Borrower or anySubsidiary which are created or incurred contemporaneously with or within 180days after such acquisition, construction or improvement to secure or providefor the payment of any part of the purchase price of such property or the costof such construction or improvement (but no other amounts); providedthat any such Lien or security interest shall not apply to any other propertyof the Borrower or any Subsidiary;

 

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(g)                                 Lienson property existing at the time such property or the Person owning suchproperty is acquired by, merged into or consolidated with, the Borrower or anySubsidiary; provided, in each case, that such liens were not created incontemplation of the acquisition by the Borrower or any Subsidiary of suchproperty;

 

(h)                                 otherLiens on assets other than inventory or accounts receivable created, incurred,assumed or permitted to exist in the ordinary course of its business orcustomary in its industry;

 

(i)                                     extensions,renewals and replacements of Liens referred to in paragraphs (a)-(i)of this Section 7.02; provided, that any such extension, renewalor replacement Lien shall be limited to the property or assets covered by theLien extended, renewed or replaced and that the obligations secured by any suchextension, renewal or replacement Lien shall be in an amount not greater thanthe amount of the obligations secured by the Lien extended, renewed orreplaced;

 

(j)                                     judgmentand attachment Liens not giving rise to an Event of Default or Liens created byor existing from any litigation or legal proceeding that are being contested ingood faith through appropriate proceedings and with respect to which adequatereserves are being maintained in accordance with GAAP;

 

(k)                                  Lienscreated or deemed to exist in connection with a Permitted SecuritizationTransaction (including any related filings of any financing statements), butonly to the extent that any such Lien relates to the applicable receivables andrelated property actually sold, contributed or otherwise conveyed pursuant tosuch transaction;

 

(l)                                     anyLien against a Securitization Subsidiary pursuant to any PermittedSecuritization Transaction;

 

(m)                               Lienscreated in connection with the Cash Collateral obligations of the Borrower andits Subsidiaries not to exceed $30 million in the aggregate from time to time outstanding;and

 

(n)                                 Liens(other than as referred to in paragraphs (a) through (m) of this Section7.02 existing on the date of this Credit Agreement or created from time totime during the term of this Credit Agreement, either individually or in theaggregate, and securing Indebtedness or other obligations in an amount not inexcess of $30 million in the aggregate.

 

 

## **7.03**                        Fundamental Changes.

## ** **

Merge with or into orconsolidate or combine with any other Person; except that:  (a) any Subsidiary (direct or indirect) ofthe Borrower may merge with or into or consolidate or combine with the Borroweror any other Subsidiary (direct or indirect) of the Borrower (whether in onetransaction or a series of transactions); (b) any Subsidiary (direct orindirect) of the Borrower may merge, consolidate or combine with any Person ifthe surviving Person is a Subsidiary (direct or indirect) of the Borrower; (c)if no Default or Event of Default shall have occurred at the time of orimmediately after giving effect to such transaction and be continuing, theBorrower may merge, consolidate or combine with any Person if the survivingcorporation is the Borrower; and (d) any Subsidiary (direct or indirect) of theBorrower may merge, consolidate or combine with any other Person as part of atransaction in which the surviving Person is not a Subsidiary (direct orindirect) of the Borrower, to the extent that the sum of (i) the aggregate netbook value of such Subsidiary, plus (ii) the aggregate net book value ofall other Subsidiaries (direct or indirect) of the Borrower previously orcontemporaneously merged, consolidated

 

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or combined pursuant tothis Section 7.03(d), plus (iii) the previous or contemporaneousAsset Dispositions pursuant to Section 7.04(v), does not exceedtwenty-five percent (25%) of the total consolidated assets of the ConsolidatedGroup as shown on its consolidated balance sheet for its most recent priorfiscal quarter.

 

## **7.04**                        Asset Dispositions.

## ** **

Make any AssetDisposition (including, without limitation, any sale/leaseback transaction);except that the Borrower and its Subsidiaries (direct or indirect) maymake:  (i) Asset Dispositions ofinventory, or used, worn-out or surplus equipment, all in the ordinary courseof business; (ii) Asset Dispositions on reasonable commercial terms and forfair value or which would not have a Material Adverse Effect (except thatdispositions of any of the Capital Stock or all or substantially all of theassets of any Subsidiary shall not be permitted under this clause (ii)); (iii)Asset Dispositions to the Borrower or any of its Subsidiaries; (iv) AssetDispositions to any Person that becomes a Subsidiary (direct or indirect) ofthe Borrower as part of a transaction or series of transactions that includesthe Asset Disposition; and (v) Asset Dispositions to any Person where the sumof (A) the aggregate net book value of the transferred assets, plus (B)the aggregate net book value of all transactions pursuant to Section 7.03(d),plus (C) the aggregate net book value of the transferred assets in allprevious or contemporaneous Asset Dispositions pursuant to this Section7.04(v), does not exceed twenty-five percent (25%) of the totalconsolidated assets of the Consolidated Group as shown on its consolidatedbalance sheet for its most recent prior fiscal quarter.

 

## **7.05**                        Financial Covenants.  

 

(a)                                  ConsolidatedLeverage Ratio.  Permit theConsolidated Leverage Ratio, as of the last day of each fiscal quarter, of theConsolidated Group to be greater than 3.0:1.0.

 

(b)                                 ConsolidatedNet Worth.  Permit Consolidated NetWorth at any time to be less than the sum of $1.4 billion, plus, as ofthe end of each fiscal quarter occurring after the Closing Date, an amountequal to fifty percent (50%) of Consolidated Net Income (to the extentpositive) for the fiscal quarter then ended, such increases to be cumulative, plus,as of the end of each fiscal quarter occurring after the Closing Date, anamount equal to fifty percent (50%) of the net proceeds from EquityTransactions occurring during the fiscal quarter then ended, such increases tobe cumulative, minus, as of the end of each fiscal quarter occurring after theClosing Date, an amount equal to the sum of all dividends and distributionspaid by the Parent in respect of its Capital Stock and amounts used torepurchase or redeem Capital Stock of the Parent during the fiscal quarter thenended, such decreases to be cumulative.

 

## **7.06**                        Permitted SecuritizationTransaction.

## ** **

Enter into or permit toexist any Securitization Transaction that is not a Permitted SecuritizationTransaction.

 

## **7.07**                        Transactions with Affiliates.

## ** **

Enter into or permit toexist any transaction or series of transactions with any officer, director,shareholder, Subsidiary or Affiliate of such Person other than transactionswhich are entered into on terms and conditions substantially as favorable tosuch Person as would be obtainable by it in a comparable arms-lengthtransaction with a Person other than an officer, director, shareholder,Subsidiary or Affiliate; provided that this Section 7.07 does notprohibit or restrict any transaction or series of transactions in

 

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which the Borrower is thebeneficiary of any terms and conditions otherwise prohibited or restrictedunder the Section 7.07.

 

## **7.08**                        Dividends; Stock Repurchases andRedemptions.

 

Declare and make dividendpayments or other distributions or purchase, redeem or otherwise acquire sharesof its Capital Stock or the Parent’s Capital Stock in excess of $150 millionper fiscal year unless, after giving effect thereto, the Consolidated Groupshall have more than $400 million in cash and marketable securities on hand anddomiciled in the United States.

## ** **

# **ARTICLE VIII  EVENTS OF DEFAULT AND REMEDIES**

 

## **8.01**                        Events of Default.

## ** **

Any one or more of thefollowing events shall constitute an Event of Default:

 

(a)                                  TheBorrower fails to pay any principal on any Outstanding Obligation (other thanfees) as and on the date when due; or

 

(b)                                 TheBorrower fails to pay any interest on any Outstanding Obligation hereunderwithin three (3) Business Days after the date due; or fails to pay any fees orother amount payable to the Administrative Agent or any Lender under any CreditDocument within five (5) days after the date due;

 

(c)                                  (i)The Borrower shall fail to observe or perform any term, covenant, obligation orcondition of the Borrower under this Credit Agreement or any other CreditDocument other than those set forth in Sections 8.01(a) or (b)hereof, and such failure shall continue for thirty (30) days (except for thecovenants set forth in Sections 7.01, 7.03, 7.04 and 7.05for which there shall be no such grace period) after notice thereof to theBorrower, or (ii) any representation or warranty made by the Borrower set forthin this Credit Agreement or in any other Credit Document or the commitmentletter dated April 15, 2004 among the Borrower, BAS and the AdministrativeAgent in respect of this Credit Agreement or in any document, certificate or financialor other statement delivered in connection herewith or therewith shall be falseor inaccurate in any material respect when made;

 

(d)                                 The Borrower, theParent or any of their respective Subsidiaries shall default (beyond applicableperiods of grace and/or notice and cure) in the payment when due of anyprincipal of or interest on any Indebtedness having an outstanding principalamount of at least $25 million; or any other event or condition shall occurwhich results in the maturity of such Indebtedness being accelerated other thanat the option of the Borrower, the Parent or any such Subsidiary, except withrespect to any Subsidiary other than Borrower, to the extent any of theforegoing does not result in a Material Adverse Effect or any other Event ofDefault hereunder;

 

(e)                                  The liquidation ordissolution of the Borrower, the Parent or any of their respectiveSubsidiaries, or the suspension of the business of the Borrower, the Parent orany of their respective Subsidiaries, or the filing by the Borrower, the Parentor any of their respective Subsidiaries, of a voluntary petition or an answerseeking reorganization, arrangement, readjustment of its debts or for any otherrelief under the Bankruptcy Code, as amended, or under any other insolvency actor law, state or federal, now or hereafter existing, or any other action of theBorrower, the Parent or any of their

 

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respective Subsidiaries,indicating its consent to, approval of or acquiescence in, any such petition orproceeding; the application by the Borrower, the Parent or any of theirrespective Subsidiaries, for, or the appointment by consent or acquiescence ofthe Borrower, the Parent or any of their respective Subsidiaries, of areceiver, a trustee or a custodian of the Borrower, the Parent or any of theirrespective Subsidiaries, for all or a substantial part of its property; themaking by the Borrower, the Parent or any of their respective Subsidiaries, ofany assignment for the benefit of creditors; the admission by the Borrower, theParent or any of their respective Subsidiaries, in writing of its inability topay its debts as they mature or the Borrower, the Parent or any of theirrespective Subsidiaries, is generally not paying its debts and other financialobligations as they become due and payable; or the Borrower, the Parent or anyof their respective Subsidiaries, taking any corporate action to authorize anyof the foregoing, except with respect to any Subsidiary other than the Borrower,to the extent any of the foregoing does not result in a Material Adverse Effector any other Event of Default hereunder;

 

(f)                                    The filing of aninvoluntary petition against the Borrower, the Parent or any of theirrespective Subsidiaries, in bankruptcy or seeking reorganization, arrangement,readjustment of its debts or for any other relief under the Bankruptcy Code, asamended, or under any other insolvency act or law, state or federal, now orhereafter existing; or the involuntary appointment of a receiver, a trustee ora custodian of the Borrower, the Parent or any of their respectiveSubsidiaries, for all or a substantial part of its property; or the issuance ofa warrant of attachment, execution or similar process against any substantialpart of the property of the Borrower, the Parent or any of their respectiveSubsidiaries, and the continuance of any of such events for sixty (60) daysundismissed or undischarged, except with respect to any Subsidiary other thanthe Borrower, to the extent any of the foregoing does not result in a MaterialAdverse Effect or any other Event of Default hereunder;

 

(g)                                 The adjudication ofthe Borrower, the Parent or any of their respective Subsidiaries, as bankruptor insolvent, except with respect to any Subsidiary other than the Borrower, tothe extent any of the foregoing does not result in a Material Adverse Effect orany other Event of Default hereunder;

 

(h)                                 The entering of anyorder in any proceedings against the Borrower, the Parent or any of theirrespective Subsidiaries, decreeing the dissolution, divestiture or split-up ofthe Borrower, the Parent or any of their respective Subsidiaries, and suchorder remains in effect for more than sixty (60) days, except with respect toany Subsidiary other than the Borrower, to the extent any of the foregoing doesnot result in a Material Adverse Effect or any other Event of Defaulthereunder;

 

(i)                                     A final judgmentor judgments for the payment of money shall be rendered by a court or courtswith competent jurisdiction against the Borrower, the Parent or any of theirrespective Subsidiaries, or any of their assets in excess of $15 million in theaggregate, and (i) the same shall not be discharged (or provision shall not bemade for such discharge), or a stay of execution thereof shall not be procured,within sixty (60) days from the date of entry thereof, or (ii) the Borrower,the Parent or any of their respective Subsidiaries, shall not, within saidperiod of sixty (60) days, or such longer period during which execution of the sameshall have been stayed, appeal therefrom and cause the execution thereof to bestayed during such appeal, or (iii) such judgment or judgments shall not bedischarged (or provisions shall not be made for such discharge) within sixty(60) days after a decision has been reached with respect to such appeal and therelated stay has been lifted;

 

(j)                                     (i) An ERISAEvent occurs with respect to a Pension Plan or Multiemployer Plan that hasresulted in liability of the Borrower under Title IV of ERISA to the PensionPlan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $15million, and the Borrower or its ERISA Affiliate fails to pay such amount whendue or (ii) the Borrower or any ERISA Affiliate fails to pay when due,after the expiration of any applicable grace period, any installment paymentwith respect to its withdrawal liability

 

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under Section 4201of ERISA under a Multiemployer Plan in an aggregate amount in excess of $15million;

 

(k)                                  (i) As a result ofone (1) or more transactions after the date of this Credit Agreement, any“person” or “group” of persons shall have “beneficial ownership” (within themeaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, asamended, and the applicable rules and regulations thereunder) of thirty-fivepercent (35%) or more of the outstanding common stock of the Parent; or (ii)without limiting the generality of the foregoing, during any period of twelve(12) consecutive months, commencing after the date of this Credit Agreement,individuals who at the beginning of such period of twelve (12) months weredirectors of the Parent shall cease for any reason to constitute a majority ofthe board of directors of Parent, provided, that the relationships amongthe respective shareholders of the Parent on the Closing Date shall not bedeemed to constitute all or any combination of them as a “group” for purposesof clause (k)(i); or

 

(l)                                     Any CreditDocument, at any time after its execution and delivery by the Borrower and forany reason other than as expressly permitted hereunder or satisfaction in fullof all the Obligations, ceases to be in full force and effect; or the Borrower,the Parent or any of their respective Subsidiaries contests in any manner thevalidity or enforceability of any Credit Document; or the Borrower denies thatit has any or further liability or obligation under any Credit Document, orpurports to revoke, terminate or rescind any Credit Document.

 

## **8.02**                        Remedies Upon Event of Default.

 

If any Event of Defaultoccurs and is continuing, the Administrative Agent shall, at the request of, ormay, with the consent of, the Required Lenders, take any or all of thefollowing actions:

 

(a)                                  declarethe commitments of the Lenders to make Loans and the obligation of the L/CIssuer to make L/C Credit Extensions to be terminated, whereupon suchcommitments and obligation shall be terminated;

 

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

 

(c)                                  requirethat the Borrower provide Cash Collateral for the L/C Obligations (in an amountequal to the then Outstanding Amount thereof); and

 

(d)                                 exerciseon behalf of itself and the Lenders all rights and remedies available to it orto the Lenders under the Credit Documents or applicable Law;

 

provided,however, that upon the occurrence of an Event of Default under Section8.01(f), (g) or (h), the obligation of each Lender to makeLoans and any obligation of the L/C Issuer to make L/C Credit Extensions shallautomatically terminate, the unpaid principal amount of all outstanding Loansand all interest and other amounts as aforesaid shall automatically become dueand payable, and the obligation of the Borrower to provide Cash Collateral forthe L/C Obligations as aforesaid shall automatically become effective, in eachcase without further act of the Administrative Agent or any Lender.

 

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## **8.03**                        Application of Funds.

## ** **

After the exercise ofremedies provided for in Section 8.02 (or after the Loans haveautomatically become immediately due and payable and the L/C Obligations haveautomatically been required to provide Cash Collateral as set forth in theproviso to Section 8.02), any amounts received on account of theObligations shall be applied by the Administrative Agent in the followingorder:

 

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

 

Second,to payment of that portion of the Obligations constituting fees, indemnitiesand other amounts (other than principal and interest) payable to the Lenders(including Attorney Costs and amounts payable under Article III),ratably among the Lenders in proportion to the amounts described in thisclause Second payable to them;

 

Third,to payment of that portion of the Obligations constituting accrued and unpaidinterest on the Loans, L/C Borrowings and other Obligations, ratably among theLenders in proportion to the respective amounts described in this clause Thirdpayable to them;

 

Fourth,to (a) payment of that portion of the Obligations constituting unpaid principalof the Loans and L/C Borrowings, (b) payment of breakage, termination or otheramounts owing in respect of any Swap Contract between the Borrower and anyLender, or any Affiliate of a Lender, to the extent such Swap Contract ispermitted hereunder, (c) the Administrative Agent for the account of the L/CIssuer, as Cash Collateral for that portion of the L/C Obligations comprised ofthe aggregate undrawn amount of Letters of Credit, ratably among such partiesin proportion to the respective amounts described in this clause Fourthpayable to them; and

 

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

 

Subject to Section 2.03(c),amounts used as Cash Collateral for the aggregate undrawn amount of Letters ofCredit pursuant to clause Fourth above shall be applied to satisfydrawings under such Letters of Credit as they occur.  If any amount remains on deposit as CashCollateral****after all Letters of Credit haveeither been fully drawn or expired, such remaining amount shall be applied tothe other Obligations, if any, in the order set forth above.

 

# **ARTICLE IX  ADMINISTRATIVE AGENT**

 

## **9.01**                        Appointment and Authority.

 

Each of the Lenders andthe L/C Issuer hereby irrevocably appoints Bank of America to act on its behalfas the Administrative Agent hereunder and under the other Credit Documents andauthorizes the Administrative Agent to take such actions on its behalf and toexercise such powers as are delegated to the Administrative Agent by the terms hereofor thereof, together with such actions and powers as are reasonably incidentalthereto.  The provisions of this Articleare solely for the benefit of the

 

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Administrative Agent, theLenders and the L/C Issuer, and the Borrower shall****haveno rights as a third party beneficiary of, and no obligations under, any ofsuch provisions.

 

## **9.02**                        Rightsas a Lender.

 

The Person serving as theAdministrative Agent hereunder shall have the same rights and powers in itscapacity as a Lender as any other Lender and may exercise the same as though itwere 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 itsindividual capacity.  Such Person and itsAffiliates may accept deposits from, lend money to, act as the financialadvisor or in any other advisory capacity for and generally engage in any kindof business with the Borrower or any Subsidiary or other Affiliate thereof asif such Person were not the Administrative Agent hereunder and without any dutyto account therefor to the Lenders.

 

## **9.03**                        ExculpatoryProvisions.

 

The Administrative Agentshall not have any duties or obligations except those expressly set forthherein and in the other Credit Documents. Without limiting the generality of the foregoing, the AdministrativeAgent:

 

(a)                                  shallnot be subject to any fiduciary or other implied duties, regardless of whethera Default has occurred and is continuing;

 

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

 

(c)                                  shallnot, except as expressly set forth herein and in the other Credit 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 iscommunicated to or obtained by the Person serving as the Administrative Agentor any of its Affiliates in any capacity.

 

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

 

The Administrative Agentshall 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 thisCredit Agreement or any other Credit Document, (ii) the contents of anycertificate, report or other document delivered hereunder or thereunder or inconnection herewith or therewith, (iii) the performance or observance ofany of the covenants, agreements or other terms or conditions set forth hereinor therein or the occurrence

 

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of any Default, (iv) thevalidity, enforceability, effectiveness or genuineness of this CreditAgreement, any other Credit Document or any other agreement, instrument ordocument or (v) the satisfaction of any condition set forth in Article IVor elsewhere herein, other than to confirm receipt of items expressly requiredto be delivered to the Administrative Agent.

 

## **9.04**                        Reliance by Administrative Agent.

 

The Administrative Agentshall be entitled to rely upon, and shall not incur any liability for relyingupon, any notice, request, certificate, consent, statement, instrument,document or other writing (including any electronic message, Internet orintranet website posting or other distribution) believed by it to be genuineand to have been signed, sent or otherwise authenticated by the properPerson.  The Administrative Agent alsomay rely upon any statement made to it orally or by telephone and believed byit to have been made by the proper Person, and shall not incur any liabilityfor relying thereon.  In determiningcompliance with any condition hereunder to the making of a Loan, or theissuance of a Letter of Credit, that by its terms must be fulfilled to thesatisfaction of a Lender or the L/C Issuer, the Administrative Agent maypresume that such condition is satisfactory to such Lender or the L/C Issuerunless the Administrative Agent shall have received notice to the contrary fromsuch Lender or the L/C Issuer prior to the making of such Loan or the issuanceof such Letter of Credit.  The AdministrativeAgent may consult with legal counsel (who may be counsel for the Borrower),independent accountants and other experts selected by it, and shall not beliable for any action taken or not taken by it in accordance with the advice ofany such counsel, accountants or experts.

 

## **9.05**                        Delegationof Duties.

 

The Administrative Agentmay perform any and all of its duties and exercise its rights and powershereunder or under any other Credit Document by or through any one or moresub-agents appointed by the Administrative Agent.  The Administrative Agent and any suchsub-agent may perform any and all of its duties and exercise its rights andpowers by or through their respective Related Parties.  The exculpatory provisions of this Articleshall apply to any such sub-agent and to the Related Parties of theAdministrative Agent and any such sub-agent, and shall apply to theirrespective activities in connection with the syndication of the creditfacilities provided for herein as well as activities as Administrative Agent.

 

## **9.06**                        Resignation of Administrative Agent.

 

The Administrative Agentmay at any time upon 30 days’ notice to the Lenders, the L/C Issuer and theBorrower, resign.  Upon receipt of anysuch notice of resignation, the Required Lenders shall have the right, inconsultation with the Borrower and with the consent of the Borrower at alltimes other than during the existence of an Event of Default, to appoint asuccessor, which shall be a bank with an office in the United States, or anAffiliate of any such bank with an office in the United States.  If no such successor shall have been soappointed by the Required Lenders and shall have accepted such appointmentwithin thirty (30) days after the retiring Administrative Agent givesnotice of its resignation, then the retiring Administrative Agent may, onbehalf of the Lenders and the L/C Issuer, appoint a successor AdministrativeAgent meeting the qualifications set forth above; provided that if theAdministrative Agent shall notify the Borrower and the Lenders that noqualifying Person has accepted such appointment, then such resignation shallnonetheless become effective in accordance with such notice and (1) theretiring Administrative Agent shall be discharged from its duties andobligations hereunder and under the other Credit Documents and (2) allpayments, communications and determinations provided to be made by, to orthrough the Administrative Agent shall instead be made by

 

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or to each Lender and theL/C Issuer directly, until such time as the Required Lenders appoint asuccessor Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’sappointment as Administrative Agent hereunder, such successor shall succeed toand become vested with all of the rights, powers, privileges and duties of theretiring (or retired) Administrative Agent, and the retiring AdministrativeAgent shall be discharged from all of its duties and obligations hereunder orunder the other Credit Documents (if not already discharged therefrom asprovided above in this Section).  Thefees payable by the Borrower to a successor Administrative Agent shall be thesame as those payable to its predecessor unless otherwise agreed between theBorrower and such successor.  After theretiring Administrative Agent’s resignation hereunder and under the otherCredit Documents, the provisions of this Article and Section 10.04shall continue in effect for the benefit of such retiring Administrative Agent,its sub-agents and their respective Related Parties in respect of any actionstaken or omitted to be taken by any of them while the retiring AdministrativeAgent was acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent pursuant tothis Section shall also constitute its resignation as L/C Issuer and SwinglineLender.  Upon the acceptance of asuccessor’s appointment as Administrative Agent hereunder, (a) such successorshall succeed to and become vested with all of the rights, powers, privilegesand duties of the retiring L/C Issuer and Swingline Lender, (b) the retiringL/C Issuer and Swingline Lender shall be discharged from all of theirrespective duties and obligations hereunder or under the other Credit Documents,and (c) the successor L/C Issuer shall issue letters of credit in substitutionfor the Letters of Credit, if any, outstanding at the time of such successionor make other arrangement satisfactory to the retiring L/C Issuer toeffectively assume the obligations of the retiring L/C Issuer with respect tosuch Letters of Credit.

 

## **9.07**                        Non-Reliance on AdministrativeAgent and Other Lenders.

 

Each Lender and the L/CIssuer acknowledges that it has, independently and without reliance upon theAdministrative Agent or any other Lender or any of their Related Parties andbased on such documents and information as it has deemed appropriate, made itsown credit analysis and decision to enter into this Credit Agreement.  Each Lender and the L/C Issuer alsoacknowledges that it will, independently and without reliance upon theAdministrative Agent or any other Lender or any of their Related Parties andbased on such documents and information as it shall from time to time deemappropriate, continue to make its own decisions in taking or not taking actionunder or based upon this Credit Agreement, any other Credit Document or anyrelated agreement or any document furnished hereunder or thereunder.

 

## **9.08**                        No Other Duties, Etc.  

 

Anything herein to thecontrary notwithstanding, none of the Arrangers or Book Managers listed on thecover page hereof shall have any powers, duties or responsibilities under thisCredit Agreement or any of the other Credit Documents, except in its capacity,as applicable, as the Administrative Agent, a Lender or the L/C Issuerhereunder.

 

## **9.09**                        Administrative Agent May File Proofsof Claim.  

 

In case of the pendencyof any receivership, insolvency, liquidation, bankruptcy, reorganization,arrangement, adjustment, composition or other judicial proceeding relative tothe Borrower, the Administrative Agent (irrespective of whether the principalof any Loan or L/C Obligation shall then be due and payable as herein expressedor by declaration or otherwise and irrespective of whether the AdministrativeAgent shall have made any demand on the Borrower) shall be entitled andempowered, by intervention in such proceeding or otherwise

 

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

 

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

 

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

 

Nothing contained hereinshall be deemed to authorize the Administrative Agent to authorize or consentto or accept or adopt on behalf of any Lender or the L/C Issuer any plan ofreorganization, arrangement, adjustment or composition affecting theObligations or the rights of any Lender or to authorize the AdministrativeAgent to vote in respect of the claim of any Lender in any such proceeding.

 

# **ARTICLE X**MISCELLANEOUS

 

## **10.01**                 Amendments, Etc.

 

No amendment or waiverof, or any consent to deviation from, any provision of this Credit Agreement orany other Credit Document shall be effective unless in writing and signed bythe Borrower and the Required Lenders and acknowledged by the AdministrativeAgent, and each such amendment, waiver or consent shall be effective only inthe specific instance and for the specific purpose for which it is given; provided,however, that:

 

(a)                                  unlessalso consented to in writing by each Lender directly affected thereby, no suchamendment, waiver or consent shall:

 

(i)                                     extend or increasethe Commitment of any Lender (or reinstate any Commitment terminated pursuantto Section 8.02), it being understood that the amendment or waiver of anEvent of Default or a mandatory reduction or a mandatory prepayment inCommitments shall not be considered an extension or an increase in Commitments,

 

(ii)                                  waive non-payment orpostpone any date fixed by this Credit Agreement or any other Credit Documentfor any payment of principal, interest, fees or other amounts due to any Lenderhereunder or under any other Credit Document,

 

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(iii)                               reduce the principal of,or the rate of interest specified herein on, any Loan or L/C Borrowing, or anyfees or other amounts payable hereunder or under any other Credit Document; provided,however, that only the consent of the Borrower and the Required Lenders shallbe necessary (A) to amend the definition of “Default Rate” or to waive anyobligation of the Borrower to pay interest or Letter of Credit Fees at theDefault Rate or (B) to amend any financial covenant hereunder (or anydefined term used therein) even if the effect of such amendment would be to reducethe rate of interest on any Loan or L/C Borrowing or to reduce any fee payablehereunder,

 

(iv)                              change any provision ofthis Credit Agreement regarding pro rata sharing or pro rata funding withrespect to (A) the making of advances (including participations), (B) themanner of application of payments or prepayments of principal, interest, orfees, (C) the manner of application of reimbursement obligations from drawingsunder Letters of Credit, or (D) the manner of reduction of commitments andcommitted amounts,

 

(v)                                 amend Section 1.09or the definition of “Alternative Currency” without the written consent of eachLender;

 

(vi)                              change any provision ofthis Section 10.01(a) or the definition of “Required Lenders” orany other provision hereof specifying the number or percentage of Lendersrequired to amend, waive or otherwise modify any rights hereunder or make anydetermination or grant any consent hereunder, or

 

(vii)                           extend the expiry date ofany Letter of Credit to a date after the L/C Expiration Date,

 

(b)                                 unlessalso consented to in writing by the L/C Issuer, no such amendment, waiver orconsent shall affect the rights or duties of the L/C Issuer under this CreditAgreement or any L/C Application relating to any Letter of Credit issued or tobe issued by it;

 

(c)                                  unlessalso consented to in writing by the Swingline Lender, no such amendment, waiveror consent shall affect the rights or duties of the Swingline Lender under thisCredit Agreement; and

 

(d)                                 unlessalso consented to in writing by the Administrative Agent, no such amendment,waiver or consent shall affect the rights or duties of the Administrative Agentunder this Credit Agreement or any other Credit Document;

 

providedhowever, that notwithstanding anything to the contrary contained herein, (i) noDefaulting Lender shall have any right to approve or disapprove any amendment,waiver or consent hereunder, except that the Commitment of such Lender may notbe increased or extended without the consent of such Lender, (ii) each Lenderis entitled to vote as such Lender sees fit on any bankruptcy or insolvencyreorganization plan that affects the Loans, (iii) each Lender acknowledged thatthe provisions of Section 1126(c) of the Bankruptcy Code supersedes theunanimous consent provisions set forth herein, (iv) the Required Lenders mayconsent to allow the Borrower to use Cash Collateral in the context of abankruptcy or insolvency proceeding, and (v) the Fee Letter may be amended, orrights or privileges thereunder waived, in a writing executed only by the partiesthereto.

 

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## **10.02**                 Notices; Effectiveness; ElectronicCommunication.

 

(a)                                  NoticesGenerally.  Except in the case ofnotices and other communications expressly permitted to be given by telephone(and except as provided in subsection (b) below), all notices and othercommunications provided for herein shall be in writing and shall be deliveredby hand or overnight courier service, mailed by certified or registered mail orsent by telecopier as follows, and all notices and other communicationsexpressly permitted hereunder to be given by telephone shall be made to theapplicable telephone number, as follows:

 

(i)                                     ifto the Borrower, the Administrative Agent, the L/C Issuer or the SwinglineLender, to the address, telecopier number, electronic mail address or telephonenumber specified for such Person on Schedule 10.02; and

 

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

 

Notices sent by hand orovernight courier service, or mailed by certified or registered mail, shall bedeemed to have been given when received; notices sent by telecopier shall bedeemed to have been given when sent (except that, if not given during normalbusiness hours for the recipient, shall be deemed to have been given at theopening of business on the next Business Day for the recipient).  Notices delivered through electroniccommunications to the extent provided in subsection (b) below, shall beeffective as provided in such subsection (b).

 

(b)                                 ElectronicCommunications.  Notices and othercommunications to the Lenders and the L/C Issuer hereunder may be delivered orfurnished by electronic communication (including e-mail and Internet orintranet websites) pursuant to procedures approved by the Administrative Agent,provided that the foregoing shall not apply to notices to any Lender orthe L/C Issuer pursuant to Article II if such Lender or the L/C Issuer,as applicable, has notified the Administrative Agent that it is incapable ofreceiving 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 ithereunder by electronic communications pursuant to procedures approved by it, providedthat approval of such procedures may be limited to particular notices orcommunications.

 

Unless the AdministrativeAgent otherwise prescribes, (i) notices and other communications sent toan e-mail address shall be deemed received upon the sender’s receipt of anacknowledgement from the intended recipient (such as by the “return receiptrequested” function, as available, return e-mail or other writtenacknowledgement), provided that if such notice or other communication isnot sent during the normal business hours of the recipient, such notice orcommunication shall be deemed to have been sent at the opening of business onthe next business day for the recipient, and (ii) notices or communicationsposted to an Internet or intranet website shall be deemed received upon thedeemed receipt by the intended recipient at its e-mail address as described inthe foregoing clause (i) of notification that such notice orcommunication is available and identifying the website address therefor.

 

(c)                                  Changeof Address, Etc.  Each of theBorrower, the Administrative Agent, the L/C Issuer and the Swingline Lender maychange its address, telecopier or telephone number for notices and othercommunications hereunder by notice to the other parties hereto.  Each other Lender may change its address,telecopier or telephone number for notices and other communications hereunderby notice to the Borrower, the Administrative Agent, the L/C Issuer and theSwingline Lender.

 

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(d)                                 Relianceby Administrative Agent, L/C Issuer and Lenders.** **The Administrative Agent, the L/CIssuer and the Lenders shall be entitled to rely and act upon any notices(including telephonic Loan Notices) purportedly given by or on behalf of theBorrower 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 noticespecified herein, or (ii) the terms thereof, as understood by the recipient,varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,each Lender and the Related Parties of each of them from all losses, costs,expenses and liabilities resulting from the reliance by such Person on eachnotice purportedly given by or on behalf of the Borrower.  All telephonic notices to and othertelephonic communications with the Administrative Agent may be recorded by theAdministrative Agent, and each of the parties hereto hereby consents to suchrecording.

 

## **10.03**                 NoWaiver; Cumulative Remedies.

 

No failure by theBorrower, any Lender or the Administrative Agent to exercise, and no delay byany such Person in exercising, any right, remedy, power or privilege hereundershall operate as a waiver thereof; nor shall any single or partial exercise ofany right, remedy, power or privilege hereunder preclude any other or furtherexercise thereof or the exercise of any other right, remedy, power orprivilege.  The rights, remedies, powersand privileges herein provided are cumulative and not exclusive of any rights,remedies, powers and privileges provided by law.

 

## **10.04**                 Expenses;Indemnity; Damage Waiver.

 

(a)                                  Costsand Expenses.  The Borrower shall pay(i) all reasonable out-of-pocket expenses incurred by the AdministrativeAgent and its Affiliates (including the reasonable fees, charges anddisbursements of counsel for the Administrative Agent), in connection with thesyndication of the credit facilities provided for herein, the preparation,negotiation, execution, delivery and administration of this Credit Agreementand the other Credit Documents or any amendments, modifications or waivers ofthe provisions hereof or thereof (whether or not the transactions contemplatedhereby or thereby shall be consummated), (ii) all reasonable out-of-pocketexpenses incurred by the L/C Issuer in connection with the issuance, amendment,renewal or extension of any Letter of Credit or any demand for paymentthereunder and (iii) all reasonable out-of-pocket expenses incurred by theAdministrative Agent, any Lender or the L/C Issuer, including the fees, chargesand disbursements of any counsel for the Administrative Agent, any Lender orthe L/C Issuer, in connection with the enforcement or protection of its rights(A) in connection with this Credit Agreement and the other CreditDocuments, including its rights under this Section, or (B) in connectionwith the Loans made or Letters of Credit issued hereunder, including all suchout-of-pocket expenses incurred during any workout, restructuring ornegotiations in respect of such Loans or Letters of Credit.

 

(b)                                 Indemnificationby the Borrower.  The Borrower shallindemnify the Administrative Agent (and any sub-agent thereof), each Lender andthe L/C Issuer, and each Related Party of any of the foregoing Persons (eachsuch Person being called an “Indemnitee”) against, and hold eachIndemnitee harmless from, any and all losses, claims, damages, liabilities andrelated expenses (including the fees, charges and disbursements of any counselfor any Indemnitee, incurred by any Indemnitee or asserted against anyIndemnitee by any third party or by the Borrower arising out of, in connectionwith, or as a result of (i) the execution or delivery of this Credit Agreement,any other Credit Document or any agreement or instrument contemplated hereby orthereby, the performance by the parties hereto of their respective obligationshereunder or thereunder or the consummation of the transactions contemplatedhereby or thereby, (ii) any Loan or Letter of Credit or the use orproposed use of the proceeds therefrom (including any refusal by the L/C Issuerto honor a demand for payment under a Letter of Credit if the

 

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documents presented inconnection with such demand do not strictly comply with the terms of suchLetter of Credit) or (iii) any actual or prospective claim, litigation,investigation or proceeding relating to any of the foregoing, whether based oncontract, tort or any other theory, whether brought by a third party or by theBorrower, and regardless of whether any Indemnitee is a party thereto, providedthat such indemnity shall not, as to any Indemnitee, be available to the extentthat such losses, claims, damages, liabilities or related expenses(x) arise out of a dispute solely between two or more Indemnitees notcaused by or involving an act or omission by the Borrower or any of itsSubsidiaries, (y) are determined by a court of competent jurisdiction by finaland nonappealable judgment to have resulted from the gross negligence orwillful misconduct of such Indemnitee or (z) result from a claim broughtby the Borrower against an Indemnitee for breach of such Indemnitee’sobligations hereunder or under any other Credit Document, if the Borrower hasobtained a final and nonappealable judgment in its favor on such claim asdetermined by a court of competent jurisdiction.

 

(c)                                  Reimbursementby Lenders.  To the extent that theBorrower for any reason fails to indefeasibly pay any amount required undersubsection (a) or (b) of this Section to be paid by itto the Administrative Agent (or any sub-agent thereof), the L/C Issuer or anyRelated Party of any of the foregoing, each Lender severally agrees to pay tothe Administrative Agent (or any such sub-agent), the L/C Issuer or suchRelated Party, as the case may be, such Lender’s Revolving CommitmentPercentage (determined as of the time that the applicable unreimbursed expenseor indemnity payment is sought) of such unpaid amount, provided that theunreimbursed expense or indemnified loss, claim, damage, liability or relatedexpense, as the case may be, was incurred by or asserted against theAdministrative Agent (or any such sub-agent) or the L/C Issuer in its capacityas such, or against any Related Party of any of the foregoing acting for theAdministrative Agent (or any such sub-agent) or L/C Issuer in connection withsuch capacity.  The obligations of theLenders under this subsection (c) are subject to the provisions of Section 2.11(e).

 

(d)                                 Waiverof Consequential Damages, Etc.  Tothe fullest extent permitted by applicable law, the Borrower shall not assert,and hereby waives, any claim against any Indemnitee, on any theory ofliability, for special, indirect, consequential or punitive damages (as opposedto direct or actual damages) arising out of, in connection with, or as a resultof, this Credit Agreement, any other Credit Document or any agreement orinstrument contemplated hereby, the transactions contemplated hereby orthereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b)above shall be liable for any damages arising from the use by unintendedrecipients of any information or other materials distributed by it throughtelecommunications, electronic or other information transmission systems inconnection with this Credit Agreement or the other Credit Documents or thetransactions contemplated hereby or thereby.

 

(e)                                  Payments.  All amounts due under this Section shall bepayable not later than ten (10) Business Days after demand therefor.

 

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

 

## **10.05**                 PaymentsSet Aside.

 

To the extent that anypayment by or on behalf of the Borrower is made to the Administrative Agent, theL/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or anyLender exercises its right of setoff, and such payment or the proceeds of suchsetoff or any part thereof is subsequently

 

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invalidated, declared tobe fraudulent or preferential, set aside or required (including pursuant to anysettlement entered into by the Administrative Agent, the L/C Issuer or suchLender 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 thereoforiginally intended to be satisfied shall be revived and continued in fullforce and effect as if such payment had not been made or such setoff had notoccurred, and (b) each Lender and the L/C Issuer severally agrees to pay to theAdministrative Agent upon demand its applicable share (without duplication) ofany amount so recovered from or repaid by the Administrative Agent, plusinterest thereon from the date of such demand to the date such payment is madeat a rate per annum equal to the applicable Overnight Rate from time to time ineffect, in the applicable currency of such recovery or payment.  The obligations of the Lenders and the L/CIssuer under clause (b) of the preceding sentence shall survive the payment infull of the Obligations and the termination of this Credit Agreement.

 

## **10.06**                 Successors and Assigns.

 

(a)                                  Successors andAssigns Generally.  The provisions ofthis Credit Agreement shall be binding upon and inure to the benefit of theparties hereto and their respective successors and assigns permitted hereby,except that the Borrower may not assign or otherwise transfer any of its rightsor obligations hereunder without the prior written consent of theAdministrative Agent and each Lender and no Lender may assign or otherwisetransfer any of its rights or obligations hereunder except (i) to an EligibleAssignee in accordance with the provisions of subsection (b) of thisSection, (ii) by way of participation in accordance with the provisions ofsubsection (d) of this Section, or (iii) by way of pledge or assignmentof a security interest subject to the restrictions of subsection (f) ofthis Section****(and any other attemptedassignment or transfer by any party hereto shall be null and void).  Nothing in this Credit Agreement, expressedor implied, shall be construed to confer upon any Person (other than the partieshereto, their respective successors and assigns permitted hereby, Participantsto the extent provided in subsection (d) of this Section and, to theextent expressly contemplated hereby, the Related Parties of each of theAdministrative Agent, the L/C Issuer and the Lenders) any legal or equitableright, remedy or claim under or by reason of this Credit Agreement.

 

(b)                                 Assignments byLenders.  Any Lender may at any timeassign to one or more Eligible Assignees all or a portion of its rights andobligations under this Credit Agreement (including all or a portion of itsCommitment and the Loans (including for purposes of this subsection (b),participations in L/C Obligations and in Swingline Loans) at the time owing toit); provided that

 

(i)                                     exceptin the case of an assignment of the entire remaining amount of the assigningLender’s Commitment and the Loans at the time owing to it or in the case of anassignment to a Lender or an Affiliate of a Lender or an Approved Fund withrespect to a Lender, the aggregate amount of the Commitment (which for thispurpose includes Loans outstanding thereunder) or, if the Commitment is notthen in effect, the principal outstanding balance of the Loans of the assigningLender subject to each such assignment, determined as of the date theAssignment and Assumption with respect to such assignment is delivered to theAdministrative Agent or, if “Trade Date” is specified in the Assignment andAssumption, as of the Trade Date, shall not be less than $3,000,000****unless each of the Administrative Agent and, so long as noEvent of Default has occurred and is continuing, the Borrower otherwiseconsents (each such consent not to be unreasonably withheld or delayed);

 

(ii)                                  eachpartial assignment shall be made as an assignment of a proportionate part ofall the assigning Lender’s rights and obligations under this Credit Agreementwith respect to the

 

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Loans or theCommitment assigned, except that this clause (ii) shall not apply to rights inrespect of Swingline Loans;

 

(iii)                               anyassignment of a Commitment must be approved by the Administrative Agent, theL/C Issuer and the Swingline Lender unless the Person that is the proposedassignee is itself a Lender (whether or not the proposed assignee wouldotherwise qualify as an Eligible Assignee); and

 

(iv)                              theparties to each assignment shall execute and deliver to the AdministrativeAgent an Assignment and Assumption, together with a processing and recordationfee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shalldeliver to the Administrative Agent an Administrative Questionnaire.

 

Subject toacceptance and recording thereof by the Administrative Agent pursuant tosubsection (c) of this Section, from and after the effective datespecified in each Assignment and Assumption, the Eligible Assignee thereundershall be a party to this Credit Agreement and, to the extent of the interestassigned by such Assignment and Assumption, have the rights and obligations ofa Lender under this Credit Agreement, and the assigning Lender thereundershall, to the extent of the interest assigned by such Assignment andAssumption, be released from its obligations under this Credit Agreement (and,in the case of an Assignment and Assumption covering all of the assigningLender’s rights and obligations under this Credit Agreement, such Lender shallcease to be a party hereto) but shall continue to be entitled to the benefitsof Sections 3.01, 3.04, 3.05, and 10.04 withrespect to facts and circumstances occurring prior to the effective date ofsuch assignment.  Upon request, theBorrower (at its expense) shall execute and deliver a Note to the assigneeLender.  Any assignment or transfer by aLender of rights or obligations under this Credit Agreement that does notcomply with this subsection shall be treated for purposes of this CreditAgreement as a sale by such Lender of a participation in such rights andobligations in accordance with subsection (d) of this Section.

 

(c)                                  Register.  The Administrative Agent, acting solely forthis purpose as an agent of the Borrower, shall maintain at the AdministrativeAgent’s Office a copy of each Assignment and Assumption delivered to it and aregister for the recordation of the names and addresses of the Lenders, and theCommitments of, and principal amounts of the Loans and L/C Obligations owingto, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall beconclusive, and the Borrower, the Administrative Agent and the Lenders maytreat each Person whose name is recorded in the Register pursuant to the termshereof as a Lender hereunder for all purposes of this Credit Agreement,notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and theL/C Issuer at any reasonable time and from time to time upon reasonable priornotice.  In addition, at any time that arequest for a consent for a material or substantive change to the CreditDocuments is pending, any Lender wishing to consult with other Lenders inconnection therewith may request and receive from the Administrative Agent acopy of the Register.

 

(d)                                 Participations.  Any Lender may at any time, without theconsent of, or notice to, the Borrower or the Administrative Agent, sellparticipations to any Person (other than a natural person or the Borrower orany of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)in all or a portion of such Lender’s rights and/or obligations under thisCredit Agreement (including all or a portion of its Commitment and/or the Loans(including such Lender’s participations in L/C Obligations and/or SwinglineLoans) owing to it); provided that (i) such Lender’s obligationsunder this Credit Agreement shall remain unchanged, (ii) such Lender shallremain solely responsible to the other parties hereto for the performance ofsuch obligations and (iii) the Borrower, the Administrative Agent, theLenders and the

 

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L/C Issuer shallcontinue to deal solely and directly with such Lender in connection with suchLender’s rights and obligations under this Credit Agreement.

 

Any agreement orinstrument pursuant to which a Lender sells such a participation shall providethat such Lender shall retain the sole right to enforce this Credit Agreementand to approve any amendment, modification or waiver of any provision of thisCredit Agreement; provided that such agreement or instrument may providethat such Lender will not, without the consent of the Participant, agree to anyamendment, waiver or other modification described in the first proviso to Section10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agreesthat each Participant shall be entitled to the benefits of Sections 3.01,3.04 and 3.05**to the sameextent as if it were a Lender and had acquired its interest by assignmentpursuant to subsection (b) of this Section.  To the extent permitted by law, eachParticipant also shall be entitled to the benefits of Section 10.08**as though it were a Lender, provided suchParticipant agrees to be subject to Section 2.12 as though it were aLender.

 

(e)                                  Limitation uponParticipant Rights.  A Participantshall not be entitled to receive any greater payment under Section 3.01or 3.04**than the applicable Lender wouldhave been entitled to receive with respect to the participation sold to suchParticipant.  A Participant that would bea Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01unless the Borrower is notified of the participation sold to such Participantand such Participant agrees, for the benefit of the Borrower, to comply with Section3.01(e) as though it were a Lender.

 

(f)                                    Certain Pledges.  Any Lender may at any time pledge or assign asecurity interest in all or any portion of its rights under this CreditAgreement (including under its Note(s), if any) to secure obligations of suchLender, including any pledge or assignment to secure obligations to a FederalReserve Bank; provided that no such pledge or assignment shall releasesuch Lender from any of its obligations hereunder or substitute any suchpledgee or assignee for such Lender as a party hereto.

 

(g)                                 ElectronicExecution of Assignments.  The words“execution”, “signed”, “signature”, and words of like import in any Assignmentand Assumption shall be deemed to include electronic signatures or the keepingof 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 apaper-based recordkeeping system, as the case may be, to the extent and asprovided for in any applicable law, including the Federal Electronic Signaturesin Global and National Commerce Act, the New York State Electronic Signaturesand Records Act, or any other similar state laws based on the UniformElectronic Transactions Act.

 

(h)                                 Resignationas L/C Issuer or Swingline Lender after Assignment.  Notwithstanding anything to the contrarycontained herein, if at any time Bank of America assigns all of its Commitmentand Loans pursuant to subsection (b) above, Bank of America may, (i)upon thirty (30) days’ notice to the Borrower and the Lenders, resign as L/CIssuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign asSwingline Lender.  In the event of anysuch resignation as L/C Issuer or Swingline Lender, the Borrower shall beentitled to appoint from among the Lenders a successor L/C Issuer or SwinglineLender hereunder; provided, however, that no failure by the Borrowerto appoint any such successor shall affect the resignation of Bank of Americaas L/C Issuer or Swingline Lender, as the case may be.  If Bank of America resigns as L/C Issuer, itshall retain all the rights and obligations of the L/C Issuer hereunder withrespect to all Letters of Credit outstanding as of the effective date of itsresignation as L/C Issuer and all L/C Obligations with respect thereto(including the right to require the Lenders to make Base Rate Committed Loansor fund risk participations in Unreimbursed Amounts pursuant to Section2.03(c)).  If Bank of America resignsas Swingline Lender, it shall retain all the rights of the Swingline Lenderprovided for hereunder with respect to Swingline Loans made by it andoutstanding as of the effective

 

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date of such resignation,including the right to require the Lenders to make Base Rate Loans or fund riskparticipations in outstanding Swingline Loans pursuant to Section 2.04(b).

 

## **10.07**                 Treatment of Certain Information;Confidentiality.

 

Each of theAdministrative Agent, the Lenders and the L/C Issuer agrees to maintain theconfidentiality of the Information (as defined below), except that Informationmay be disclosed (a) to its Affiliates and to its and its Affiliates’respective partners, directors, officers, employees, agents, advisors andrepresentatives (it being understood that all Persons to whom such disclosureis made will be informed of the confidential nature of such Information and instructedto keep such Information confidential), (b) to the extent requested by anyregulatory authority purporting to have jurisdiction over it (including anyself-regulatory authority, such as the National Association of InsuranceCommissioners), (c) to the extent required by applicable laws or regulations orby any subpoena or similar legal process, (d) to any other party hereto, (e) inconnection with the exercise of any remedies hereunder or under any otherCredit Document or any action or proceeding relating to this Credit Agreementor any other Credit Document or the enforcement of rights hereunder orthereunder, (f) subject to an agreement containing the provisions of thisSection, to (i) any assignee of or Participant in, or any prospective assigneeof or Participant in, any of its rights or obligations under this CreditAgreement or (ii) any actual or prospective counterparty (or its advisors) toany swap or derivative transaction relating to the Borrower and itsobligations, (g) with the consent of the Borrower or (h) to the extent suchInformation (x) becomes publicly available other than as a result of a breachof this Section or (y) becomes available to the Administrative Agent, anyLender, the L/C Issuer or any of their respective Affiliates on anonconfidential basis from a source other than the Borrower.

 

For purposes of thisSection, “Information” means all information received from the Borroweror any Subsidiary relating to the Borrower or any Subsidiary or any of theirrespective businesses, other than any such information that is available to theAdministrative Agent, any Lender or the L/C Issuer on a nonconfidential basisprior to disclosure by the Borrower or any Subsidiary, provided that, inthe case of information received from the Borrower or any Subsidiary after thedate hereof, such information is clearly identified at the time of delivery asconfidential.  Any Person required tomaintain the confidentiality of Information as provided in this Section shallbe considered to have complied with its obligation to do so if such Person hasexercised the same degree of care to maintain the confidentiality of suchInformation as such Person would accord to its own confidential information.

 

## **10.08**                 Right ofSetoff.

 

If an Event of Defaultshall have occurred and be continuing, each Lender, the L/C Issuer and each oftheir respective Affiliates is hereby authorized at any time and from time totime, to the fullest extent permitted by applicable law, to set off and applyany and all deposits (general or special, time or demand, provisional or final,in whatever currency) at any time held and other obligations (in whatevercurrency) at any time owing by such Lender, the L/C Issuer or any suchAffiliate to or for the credit or the account of the Borrower against any andall of the obligations of such Borrower now or hereafter existing under thisCredit Agreement or any other Credit Document to such Lender or the L/C Issuer,irrespective of whether or not such Lender or the L/C Issuer shall have made anydemand under this Credit Agreement or any other Credit Document and althoughsuch obligations of such Borrower****may becontingent or unmatured or are owed to a branch or office of such Lender or theL/C Issuer different from the branch or office holding such deposit orobligated on such indebtedness.  Therights of each Lender, the L/C Issuer and their respective Affiliates underthis Section are in addition to other rights and remedies (including otherrights of setoff) that such Lender, the L/C Issuer or their respectiveAffiliates may have.  Each

 

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Lender and the L/C Issueragrees to notify the Borrower and the Administrative Agent promptly after anysuch setoff and application, provided that the failure to give suchnotice shall not affect the validity of such setoff and application.

 

## **10.09**                 InterestRate Limitation.

 

Notwithstanding anythingto the contrary contained in any Credit Document, the interest paid or agreedto be paid under the Credit Documents shall not exceed the maximum rate ofnon-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lendershall receive interest in an amount that exceeds the Maximum Rate, the excessinterest shall be applied to the principal of the Loans or, if it exceeds suchunpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or receivedby the Administrative Agent or a Lender exceeds the Maximum Rate, such Personmay, to the extent permitted by applicable Law, (a) characterize any paymentthat 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 ofinterest throughout the contemplated term of the Obligations hereunder.

 

## **10.10**                 Counterparts; Integration;Effectiveness.

 

This Credit Agreement maybe executed in counterparts (and by different parties hereto in differentcounterparts), each of which shall constitute an original, but all of whichwhen taken together shall constitute a single contract.  This Credit Agreement and the other CreditDocuments constitute the entire contract among the parties relating to thesubject matter hereof and supersede any and all previous agreements andunderstandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01,this Credit Agreement shall become effective when it shall have been executedby the Administrative Agent and when the Administrative Agent shall havereceived counterparts hereof that, when taken together, bear the signatures ofeach of the other parties hereto. Delivery of an executed counterpart of a signature page of this CreditAgreement by telecopy shall be effective as delivery of a manually executedcounterpart of this Credit Agreement.

 

## **10.11**                 Survival of Representations andWarranties.

 

All representations andwarranties made hereunder and in any other Credit Document or other documentdelivered pursuant hereto or thereto or in connection herewith or therewithshall survive the execution and delivery hereof and thereof.  Such representations and warranties have beenor will be relied upon by the Administrative Agent and each Lender, regardlessof any investigation made by the Administrative Agent or any Lender or on theirbehalf and notwithstanding that the Administrative Agent or any Lender may havehad notice or knowledge of any Default at the time of any Credit Extension, andshall continue in full force and effect as long as any Loan or any otherObligation hereunder shall remain unpaid or unsatisfied or any Letter of Creditshall remain outstanding.

 

## **10.12**                 Severability.

 

If any provision of thisCredit Agreement or the other Credit Documents is held to be illegal, invalidor unenforceable, (a) the legality, validity and enforceability of theremaining provisions of this Credit Agreement and the other Credit Documentsshall not be affected or impaired thereby and (b) the parties shall endeavor ingood faith negotiations to replace the illegal, invalid or unenforceableprovisions with valid provisions the economic effect of which comes as close aspossible to that of the illegal, invalid

 

75

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or unenforceableprovisions.  The invalidity of aprovision in a particular jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.

 

## **10.13**                 Replacementof Lenders.

 

If any Lender requestscompensation under Section 3.04, or if the Borrower is required to payany additional amount to any Lender or any Governmental Authority for theaccount of any Lender pursuant to Section 3.01, or if any Lender is aDefaulting Lender, then the Borrower may, at its sole expense and effort, uponnotice to such Lender and the Administrative Agent, require such Lender toassign and delegate, without recourse (in accordance with and subject to therestrictions contained in, and consents required by, Section 10.06), allof its interests, rights and obligations under this Credit Agreement and therelated Credit Documents to an assignee that shall assume such obligations(which assignee may be another Lender, if a Lender accepts such assignment), providedthat:

 

(a)                                  theBorrower shall have paid to the Administrative Agent the assignment feespecified in Section 10.06(b);

 

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

 

(c)                                  inthe case of any such assignment resulting from a claim for compensation under Section3.04 or payments required to be made pursuant to Section 3.01, suchassignment will result in a reduction in such compensation or paymentsthereafter; and

 

(d)                                 suchassignment does not conflict with applicable Laws.

 

A Lender shall not berequired to make any such assignment or delegation if, prior thereto, as aresult of a waiver by such Lender or otherwise, the circumstances entitling theBorrower to require such assignment and delegation cease to apply.

 

## **10.14**                 GoverningLaw; Jurisdiction; Etc.

 

(a)                                  GOVERNINGLAW.  THIS CREDIT AGREEMENT SHALL BEGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEWYORK.

 

(b)                                 SUBMISSIONTO JURISDICTION.  THE BORROWERIRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THENONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THEBOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERNDISTRICT OF SUCH STATE AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTIONOR PROCEEDING ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHERCREDIT DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OFTHE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS INRESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCHNEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INSUCH FEDERAL COURT.

 

76

----

 

EACH OF THE PARTIESHERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BECONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENTOR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS CREDIT AGREEMENT OR IN ANY OTHER CREDIT DOCUMENT SHALLAFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUERMAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS CREDITAGREEMENT OR ANY OTHER CREDIT DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIESIN THE COURTS OF ANY JURISDICTION.

 

(c)                                  WAIVEROF VENUE.  THE BORROWER IRREVOCABLYAND 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 ANYACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANYOTHER CREDIT DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THISSECTION.  EACH OF THE PARTIES HERETOHEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION ORPROCEEDING IN ANY SUCH COURT.

 

(d)                                 SERVICEOF PROCESS.  EACH PARTY HERETOIRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICESIN SECTION 10.02.  NOTHING INTHIS CREDIT AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVEPROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

## **10.15**                 Waiver ofJury Trial.

 

EACH PARTY HERETO HEREBYIRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANYRIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY ORINDIRECTLY ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHERCREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHERBASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT ORATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCHOTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THEFOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETOHAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT AND THE OTHER CREDITDOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THISSECTION.

 

## **10.16**                 USAPATRIOT Act Notice.

 

Each Lender that issubject to the Act (as hereinafter defined) and the Administrative Agent (foritself and not on behalf of any Lender) hereby notifies the Borrower thatpursuant 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 requiredto obtain, verify and record information that identifies the Borrower, whichinformation includes the name and address of the Borrower and other informationthat will allow such Lender or the Administrative Agent, as applicable, toidentify such Borrower in accordance with the Act.

 

77

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## **10.17**                 Judgment Currency.

 

If, for the purposes ofobtaining judgment in any court, it is necessary to convert a sum due hereunderor any other Credit Document in one currency into another currency, the rate ofexchange used shall be that at which in accordance with normal bankingprocedures the Administrative Agent could purchase the first currency with suchother currency on the Business Day preceding that on which final judgment isgiven.  The obligation of the Borrower inrespect of any such sum due from it to the Administrative Agent or the Lendershereunder or under the other Credit Documents shall, notwithstanding anyjudgment in a currency (the “Judgment Currency”) other than that inwhich such sum is denominated in accordance with the applicable provisions ofthis Credit Agreement (the “Agreement Currency”), be discharged only tothe extent that on the Business Day following receipt by the AdministrativeAgent of any sum adjudged to be so due in the Judgment Currency, theAdministrative Agent may in accordance with normal banking procedures purchasethe Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency sopurchased is less than the sum originally due to the Administrative Agent fromthe Borrower in the Agreement Currency, the Borrower agrees, as a separateobligation and notwithstanding any such judgment, to indemnify theAdministrative Agent or the Person to whom such obligation was owing againstsuch loss.  If the amount of theAgreement Currency so purchased is greater than the sum originally due to theAdministrative Agent in such currency, the Administrative Agent agrees toreturn the amount of any excess to the Borrower (or to any other Person who maybe entitled thereto under applicable law).

 

## **10.18**                 ENTIREAGREEMENT.

 

**THISCREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENTAMONG 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 AMONGTHE PARTIES.**

 

78

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IN WITNESS WHEREOF, theparties hereto have caused this Credit Agreement to be duly executed as of thedate first above written.

 

 
| **BORROWER** | **:**                                              | **SABRE INC.**      |
|--------------|----------------------------------------------------|---------------------|
|         |                                               |
|         |                                               |
|         | By:                                                | /s/ James E. Murphy |   |
|         | Name: James E. Murphy                              |
|         | Title: SVP, Corporate  Development & Treasurer |
|         |                                               |
|         |                                               |
|         | [Signatures Continue on  Following Pages]          |

 

----

 
| **ADMINISTRATIVE AGENT** | **:**                                     | **BANK OF AMERICA, N.A.**, |
|--------------------------|-------------------------------------------|----------------------------|
|                     | as Administrative Agent                   |
|                     |                                      |
|                     |                                      |
|                     | By:                                       | /s/Anne Brooke Lazorik     |   |
|                     | Name: Anne Brooke  Lazorik                |
|                     | Title: Assistant Vice  President          |
|                     |                                      |
|                     |                                      |
|                     | [Signatures Continue on  Following Pages] |

 

----

 
| **LENDERS** | **:**                                            | **BANK OF AMERICA, N.A.**, |
|-------------|--------------------------------------------------|----------------------------|
|        | as L/C Issuer,  Swingline Lender and as a Lender |
|        |                                             |
|        |                                             |
|        | By:                                              | /s/Robert Mauriello        |   |
|        | Name: Robert Mauriello                           |
|        | Title: Principal                                 |
|        |                                             |
|        |                                             |
|        | [Signatures Continue on  Following Pages]        |

 

----

 
|   | **CITIBANK, N.A.**,                       |
|--------|-------------------------------------------|
|   | as a Lender                               |
|   |                                      |
|   |                                      |
|   | By:                                       | /s/Robert H. Riley III |   |
|   | Name: Robert H. Riley  III                |
|   | Title: Senior Vice  President             |
|   |                                      |
|   |                                      |
|   | [Signatures Continue on  Following Pages] |

 

----

 
|       | **SUMITOMO MITSUI BANKING CORP.,**        |
|------------|-------------------------------------------|
| ** ** | **NEW YORK**,                             |
|       | as a Lender                               |
|       |                                      |
|       |                                      |
|       | By:                                       | /s/Gaylord C. Holmes |   |
|       | Name: Gaylord C. Holmes                   |
|       | Title: Vice President                     |
|       |                                      |
|       |                                      |
|       | [Signatures Continue on  Following Pages] |

 

----

 
|   | **UFJ BANK LIMITED**,                     |
|--------|-------------------------------------------|
|   | as a Lender                               |
|   |                                      |
|   |                                      |
|   | By:                                       | /s/John T. Feeney |   |
|   | Name: John T. Feeney                      |
|   | Title: Vice President                     |
|   |                                      |
|   |                                      |
|   | [Signatures Continue on  Following Pages] |

 

----

 
|   | **BANK ONE, NA**,                         |
|--------|-------------------------------------------|
|   | as a Lender                               |
|   |                                      |
|   |                                      |
|   | By:                                       | /s/David I. Shaw |   |
|   | Name: David I. Shaw                       |
|   | Title: First Vice  President              |
|   |                                      |
|   |                                      |
|   | [Signatures Continue on  Following Pages] |

 

----

 
|   | **JPMORGAN CHASE BANK**,                  |
|--------|-------------------------------------------|
|   | as a Lender                               |
|   |                                      |
|   |                                      |
|   | By:                                       | /s/Mae Reeves |   |
|   | Name: Mae Reeves                          |
|   | Title: Vice President                     |
|   |                                      |
|   |                                      |
|   | [Signatures Continue on  Following Pages] |

 

----

 
|   | **LONE STAR BANK**,                       |
|--------|-------------------------------------------|
|   | as a Lender                               |
|   |                                      |
|   |                                      |
|   | By:                                       | /s/Melinda N. Jackson |   |
|   | Name: Melinda N.  Jackson                 |
|   | Title: Senior Vice  President             |
|   |                                      |
|   |                                      |
|   | [Signatures Continue on  Following Pages] |

 

----

 
|   | **THE BANK OF NEW YORK**,                 |
|--------|-------------------------------------------|
|   | as a Lender                               |
|   |                                      |
|   |                                      |
|   | By:                                       | /s/David Sunderwith |   |
|   | Name: David Sunderwith                    |
|   | Title: Vice President                     |
|   |                                      |
|   |                                      |
|   | [Signatures Continue on  Following Pages] |

 

----

 
|       | **BANCA NAZIONALE DEL LAVORO SPA,**                                                                           |
|------------|---------------------------------------------------------------------------------------------------------------|
| ** ** | **NEW YORK BRANCH**,                                                                                          |
|       | as a Lender                                                                                                   |
|       |                                                                                                          |
|       |                                                                                                          |
|       | By:                                                                                                           | /s/Juan  Cortes              /s/Francesco  Di Mario |   |
|       | Name: Juan  Cortes            Francesco  Di Mario |
|       | Title: Vice  President          Vice  President             |
|       |                                                                                                          |
|       |                                                                                                          |
|       | [Signatures Continue on  Following Page]                                                                      |

 

----

 
|   | **COMERICA BANK**,               |
|--------|----------------------------------|
|   | as a Lender                      |
|   |                             |
|   |                             |
|   | By:                              | /s/Jeff P. Geisbauer |   |
|   | Name:  Jeff P. Geisbauer    |
|   | Title: Corporate  Banking Office |
|   |                             |
|   |                             |
|   | [End of Signature  Pages]        |

 

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Exhibit 2.01(d)

 

FORM OF REVOLVINGLENDER JOINDER AGREEMENT

 

THIS REVOLVING LENDERJOINDER AGREEMENT (this “Agreement”), dated as of              ,200    , to the Credit Agreement referenced below is by andamong [NEW REVOLVING LENDER] (the “New Revolving Lender”), SABRE INC., aDelaware corporation (the “Borrower”), and BANK OF AMERICA, N.A., asAdministrative Agent.  Capitalized termsused but not otherwise defined herein have the meanings provided in the CreditAgreement.

 

W I T N E S S E TH

 

WHEREAS, pursuant to thatCredit Agreement, dated as of June      , 2004 (asamended and modified from time to time, the “Credit Agreement”), amongthe Borrower, the Lenders and the Administrative Agent, the Lenders have agreedto provide the Borrower with a revolving credit facility;

 

WHEREAS, pursuant to Section2.01(d) of the Credit Agreement, the Borrower has requested that the NewRevolving Lender provide an additional Revolving Commitment under the CreditAgreement; and

 

WHEREAS, the NewRevolving Lender has agreed to provide the additional Revolving Commitment onthe terms and conditions set forth herein and to become a “Lender” under theCredit Agreement in connection therewith;

 

NOW, THEREFORE, INCONSIDERATION of the premises and other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties heretoagree as follows:

 

1.                                       TheNew Revolving Lender hereby agrees to provide a Revolving Commitment to theBorrower during the Commitment Period in an amount up to its RevolvingCommitted Amount set forth on Schedule 2.01 attached hereto. The NewRevolving Lender’s Revolving Commitment Percentage shall be as set forth on Schedule2.01 attached hereto.  The existingSchedule 2.01 to the Credit Agreement shall be deemed to be amended to includethe information set forth on Schedule 2.01 attached hereto.

 

2.                                       TheNew Revolving Lender shall be deemed to have purchased, without recourse, arisk participation from the L/C Issuer in all Letters of Credit issued orexisting under the Credit Agreement and the obligations arising thereunder inan amount equal to its Revolving Commitment Percentage of the obligations undersuch Letters of Credit, and shall absolutely, unconditionally and irrevocablyassume, as primary obligor and not as surety, and be obligated to pay to theL/C Issuer and discharge when due, its Revolving Commitment Percentage of the obligationsarising under such Letters of Credit.

 

3.                                       TheNew Revolving Lender (a) represents and warrants that (i) it has fullpower and authority, and has taken all action necessary, to execute and deliverthis Agreement and to consummate the transactions contemplated hereby and tobecome a Lender under the Credit Agreement, (ii) it meets all requirementsof an Eligible Assignee under the Credit Agreement, (iii) from and afterthe date hereof, it shall be bound by the provisions of the Credit Agreement asa Lender thereunder and shall have the obligations of a Lender thereunder,(iv) it has received a copy of the Credit Agreement, together with copiesof the most recent financial statements delivered pursuant to Section 6.04thereof and such other documents and information as it has deemed appropriateto make its own credit analysis and decision to enter into this Agreement and,based on such information, has made such analysis and decision independentlyand without reliance on the Administrative Agent or any other Lender and(v) if it is a Foreign Lender, attached hereto is any documentationrequired to be delivered by it pursuant to the terms

 

----

 

of the Credit Agreement,duly completed and executed by the New Lender; and (b) agrees that(i) it will, independently and without reliance on the AdministrativeAgent or any other Lender, and based on such documents and information as itshall deem appropriate at the time, continue to make its own credit decisionsin taking or not taking action under the Credit Documents and (ii) it willperform in accordance with their terms all of the obligations which by theterms of the Credit Documents are required to be performed by it as a Lender.

 

4.                                       TheBorrower agrees that, as of the date hereof, the New Revolving Lender shall (a)be a party to the Credit Agreement and the other Credit Documents, (b) be a“Lender” for all purposes of the Credit Agreement and the other CreditDocuments and (c) have the rights and obligations of a Lender under the CreditAgreement and the other Credit Documents.

 

5.                                       Theaddress of the New Revolving Lender for purposes of all notices and othercommunications is as set forth on the Administrative Questionnaire delivered bythe New Revolving Lender to the Administrative Agent.

 

6.                                       ThisAgreement may be executed in any number of counterparts and by the variousparties hereto in separate counterparts, each of which when so executed shallbe deemed to be an original and all of which taken together shall constituteone contract.  Delivery of an executedcounterpart of this Agreement by telecopier shall be effective as delivery of amanually executed counterpart of this Agreement.

 

7.                                       ThisAgreement shall be governed by and construed and interpreted in accordance withthe laws of the State of New York.

 

[remainder of pageintentionally left blank]

 

----

 

IN WITNESS WHEREOF, eachof the parties hereto has caused this Agreement to be executed by a dulyauthorized officer as of the date first above written.

 
| NEW REVOLVING LENDER    | :      | [NEW REVOLVING LENDER]              |   |
|-------------------------|--------|-------------------------------------|--------|
|                    |   |                                |
|                    | By:    |                                |   |   |
|                    | Name:  |                                |
|                    | Title: |                                |
|                    |   |                                |
| BORROWER                | :      | SABRE INC., a Delaware  corporation |   |
|                    |   |                                |
|                    | By:    |                                |   |   |
|                    | Name:  |                                |
|                    | Title: |                                |
|                    |   |                                |
|                    |   |                                |
| Accepted and Agreed     | :      |                                |
|                    |   |                                |
| BANK OF AMERICA, N.A.,  |   |                                |
| as Administrative Agent |   |                                |
|                    |   |                                |
| By:                     |   |                                |   |   |
| Name:                   |   |                                |
| Title:                  |   |                                |
|                         |        |                                     |        |  |  |  |  |  |  |  |

 

----

 

Exhibit 2.02

 

FORM OF LOANNOTICE

 

Date:                            

 

To:                              BANK OF AMERICA, N.A., asAdministrative Agent

 

Re:                               CreditAgreement, dated as of June     , 2004 (as amended,restated, extended, supplemented or otherwise modified in writing from time totime, the “Credit Agreement”), among SABRE INC., a Delaware corporation(the “Borrower”), the Lenders party thereto and BANK OF AMERICA, N.A., as Administrative Agent.  Capitalized terms used but not otherwisedefined herein have the meanings provided in the Credit Agreement.

 

Ladiesand Gentlemen:

 

1.                                       Theundersigned hereby requests the following:

 
| o  a Swingline Loan Borrowing    |   | o  a Revolving Loan Borrowing  |
|---------------------------------------|--------|-------------------------------------|
|                                  |   |                                |
| o  a Revolving Loan continuation |   | o  a Revolving Loan Conversion |

 

2.                                       Dateof Borrowing (which shall be a Business Day):                                                                                        

 

3.                                       Amountof Borrowing:                                                                                                                                      

 
| 4.     |   | Currency:                                                                                                                                                                                                       | o  Dollars (required for a Swingline Loan) |   | o  Australian Dollars |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------|--------|----------------------------|
|   |   |                                                                                                                                                                                                            |
|   |   | o  British Pound Sterling                                                                                                                                                                                  | o  Canadian Dollars                        |   | o  Euro               | o  Yen |
|   |   |                                                                                                                                                                                                            |                                            |   |                       |   |
|   |   | o  Other (specify request)                                |                                            |   |                       |
|        |        |                                                                                                                                                                                                                 |                                                 |        |                            |  |  |

 
| 5.     |   | Type of Loan requested  (select one):                      |   | o  Base Rate Loan (required for a Swingline  Loan) |
|--------|--------|------------------------------------------------------------|--------|---------------------------------------------------------|
|   |   |                                                       |
|   |   |                                                       |   | o  Eurocurrency Rate Loan                          |
|   |   |                                                       |
| 6.     |   | Interest Period for  Eurocurrency Rate Loans (select one): |
|   |   |                                                       |
|   |   | o  One Month                                          |   | o  Two Months                                      | o  Three Months |
|   |   |                                                       |   |                                                    |
|   |   | o  Six Months                                         |   | o  Twelve Months                                   |
|        |        |                                                            |        |                                                         |  |  |  |

 

The Borrowerhereby represents and warrants that (a) this Request for Credit Extensioncomplies with the proviso at the end of the first sentence of Section2.01(a), with respect to Revolving Loans, and Section 2.01(c), withrespect to a new Swingline Loan, and with the requirements of Section 2.02of the Credit Agreement and (b) the representations and warranties contained inSection 4.02(a) and (b) of the Credit Agreement have beensatisfied on and as of the date of the requested Credit Extension.

 

[Signature on FollowingPage]

 

----

 
|   | SABRE INC. |
|--------|------------|
|   |       |
|   | By:        |   |   |
|   | Name:      |
|   | Title:     |

 

----

 

Exhibit 2.13-1

 

FORM OF REVOLVINGNOTE

June     , 2004

 

FOR VALUE RECEIVED, theundersigned (the “Borrower”), hereby promises to pay to                                       ,its successors or registered assigns (the “Lender”), the Lender’sRevolving Committed Amount, or if less, the aggregate unpaid principal amountof all Revolving Loans owing to the Lender under the Credit Agreement, dated asof June      , 2003 (as amended, restated, extended,supplemented or otherwise modified, the “Credit Agreement”), among SABREINC., as Borrower, the Lenders party thereto and BANK OF AMERICA, N.A., asAdministrative Agent, in accordance with the provisions thereof.

 

The Borrower promises topay interest on the unpaid principal amount of each Revolving Loan from thedate of such Loan until such principal amount is paid in full, at such interestrates and at such times as provided in the Credit Agreement.  All payments of principal and interest shallbe made to the Administrative Agent for the account of the Lender, at theAdministrative Agent’s Office, in the Applicable Currency in Same DayFunds.  If any amount is not paid in fullwhen due hereunder, such unpaid amount shall bear interest, to be paid upondemand, from the due date thereof until the date of actual payment (before aswell as after judgment) computed at the applicable per annum rate set forth inthe Credit Agreement.

 

This Note is one of theNotes referred to in the Credit Agreement and is entitled to the benefitsthereof.  This Note may be prepaid inwhole or in part subject to the terms and conditions provided therein. ** **Revolving Loans****made by the Lender may be evidenced by one or more loanaccounts or records maintained by the Lender in the ordinary course ofbusiness.  The Lender may also attachschedules to this Note and endorse thereon the date, amount and maturity of itsLoans and payments with respect thereto.

 

Upon the occurrence andcontinuation of an Event of Default, all amounts then remaining unpaid on thisNote shall become, or may be declared to be, immediately due and payable asprovided in the Credit Agreement, without diligence, presentment, protest anddemand or notice of protest, demand, dishonor and non-payment of this Note, allof which are hereby waived by the Borrower, for itself and its successors andassigns.

 

THIS NOTE SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 
|   | SABRE INC. |
|--------|------------|
|   |       |
|   | By:        |   |   |
|   | Name:      |
|   | Title:     |

 

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Exhibit 2.13-2

 

FORM OF REVOLVINGSWINGLINE NOTE

 

June     , 2004

 

FOR VALUE RECEIVED, theundersigned (the “Borrower”), hereby promises to pay to                                       ,its successors or registered assigns (the “Swingline Lender”), theaggregate unpaid principal amount of all Swingline Loans owing to the SwinglineLender under the Credit Agreement, dated as of June     , 2004 (as amended, restated, extended,supplemented or otherwise modified, the “Credit Agreement”), among SABREINC., as Borrower, the Lenders party thereto and BANK OF AMERICA, N.A., asAdministrative Agent, in accordance with the provisions thereof.

 

The Borrower promises topay interest on the unpaid principal amount of each Swingline****Loan from the date of such Loan until such principal amountis paid in full, at such interest rates and at such times as provided in theCredit Agreement.  All payments ofprincipal and interest shall be made to the Swingline Lender in Dollars inimmediately available funds.  If anyamount is not paid in full when due hereunder, such unpaid amount shall bearinterest, to be paid upon demand, from the due date thereof until the date ofactual payment (before as well as after judgment) computed at the applicableper annum rate set forth in the Credit Agreement.

 

This Note is one of theNotes referred to in the Credit Agreement and is entitled to the benefitsthereof.  This Note may be prepaid inwhole or in part subject to the terms and conditions provided therein.  Swingline****Loans****made by the Swingline****Lender may beevidenced by one or more loan accounts or records maintained by the SwinglineLender in the ordinary course of business. The Swingline Lender may also attach schedules to this Note and endorsethereon the date, amount and maturity of its Loans and payments with respectthereto.

 

Upon the occurrence andcontinuation of an Event of Default, all amounts then remaining unpaid on thisNote shall become, or may be declared to be, immediately due and payable asprovided in the Credit Agreement, without diligence, presentment, protest anddemand or notice of protest, demand, dishonor and non-payment of this Note, allof which are hereby waived by the Borrower, for itself and its successors andassigns.

 

THIS NOTE SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 
|   | SABRE INC. |
|--------|------------|
|   |       |
|   | By:        |   |   |
|   | Name:      |
|   | Title:     |

 

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Exhibit 6.05(d)

 

FORM OF COMPLIANCECERTIFICATE

 

[date]

 

 

Financial StatementDate:                                             

 

To:                              Bankof America, N.A., as Administrative Agent

 

Re:                               CreditAgreement, dated as of June     , 2004 (as amended,restated, extended, supplemented or otherwise modified in writing from time totime, the “Credit Agreement”), among SABRE INC., a Delaware corporation(the “Borrower”), the Lenders party thereto and BANK OF AMERICA, N.A., as Administrative Agent.  Capitalized terms used but not otherwisedefined herein have the meanings provided in the Credit Agreement.

 

Ladiesand Gentlemen:

 

The undersignedResponsible Officer hereby certifies as of the date hereof that [he/she] is the                                                         of the Borrower, and that, as such, is authorized to execute and deliver thisCompliance Certificate to the Administrative Agent on the behalf of theBorrower, and that:

 

*[Usefollowing paragraph 1 for fiscal year-end financial statements:]*

 

[1.                                   [Attachedhereto as Schedule 1 are the] [The] year-end audited financialstatements required by Section 6.04(a) of the Credit Agreementfor the fiscal year of the Parent and its Consolidated Subsidiaries ended as ofthe date set forth above, together with the report and opinion of anindependent certified public accountant required by such section [,have beenelectronically delivered to the Administrative Agent pursuant to the conditionsset forth in Section 6.05 of the Credit Agreement].

 

*[Usefollowing paragraph 1 for fiscal quarter-end financial statements:]*

 

[1.                                   [Attachedhereto as Schedule 1 are the] [The] unaudited financial statementsrequired by Section 6.04(b) of the Credit Agreement for thefiscal quarter of the Parent and its Consolidated Subsidiaries ended as of thedate set forth above [have been electronically delivered to the AdministrativeAgent pursuant to the conditions set forth in Section 6.05 of the CreditAgreement].  Such financial statementsfairly present the financial condition, results of income or operations,shareholders’ equity and cash flows of the Consolidated Group in accordancewith GAAP as at such date and for such period, subject only to normal year-endaudit adjustments and the absence of footnotes.]

 

2.                                       Thefinancial covenant analyses and information set forth on Schedule [1][2]attached hereto are true, accurate and complete on and as of the date of thisCompliance Certificate.  [The Borrower isin compliance with each of the financial covenants contained in Section 7.05.]  [The Borrower is not in compliance with thefollowing financial covenants contained in Section 7.05:]

 

3.                                       [Tothe best knowledge of the undersigned during such fiscal period, no Default orEvent of Default exists with respect to the Borrower.]

 

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[With respect to theBorrower, Defaults or Events of Default exist. The following is a listing of such Defaults or Events of Default,including the nature and extent thereof and what action the Borrower proposesto take with respect thereto:]

 

 

4.                                       Setforth below is a summary of all material changes in GAAP and in the consistentapplication thereof during the period covered by the financial statements[delivered electronically] [attached hereto] that materially impact thecalculation of the financial covenants contained in Section 7.05,including a reconciliation between calculation of the financial covenantsbefore and after giving effect to such changes:

 

 

IN WITNESS WHEREOF, theundersigned has executed this Compliance Certificate as of                         ,200     .

 
|   | SABRE INC. |
|--------|------------|
|   |       |
|   | By:        |   |   |
|   | Name:      |
|   | Title:     |

 

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[Schedule 1to Compliance Certificate

 

FINANCIALSTATEMENTS AND RELATED DELIVERIES

 

 

(attached)]

 

----

 

Schedule [1][2]to Compliance Certificate

 

COVENANTCALCULATIONS

 

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Exhibit 10.06

 

ASSIGNMENT ANDASSUMPTION

 

This Assignment andAssumption (this “Assignment and Assumption”) is dated as of theEffective Date set forth below and is entered into by and between [Insert nameof Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined hereinhave the meanings provided in the Credit Agreement identified below, receipt ofa copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forthin Annex 1 attached hereto are hereby agreed to and incorporated hereinby reference and made a part of this Assignment and Assumption as if set forthherein in full.

 

For an agreed consideration, the Assignor and theAssignee hereby agree as follows:  theAssignor hereby irrevocably sells and assigns to the Assignee, and the Assigneehereby irrevocably purchases and assumes from the Assignor, subject to and inaccordance with the Standard Terms and Conditions and the Credit Agreement, asof the Effective Date inserted by the Administrative Agent as contemplatedbelow (i) all of the Assignor’s rights and obligations in its capacity as aLender under the Credit Agreement and any other documents or instrumentsdelivered pursuant thereto to the extent related to the amount and percentageinterest identified below of all of such outstanding rights and obligations ofthe Assignor under the respective facilities identified below (including Lettersof Credit and Swingline Loans within such facilities and guaranties given withrespect to such facilities) and (ii) to the extent permitted to be assignedunder applicable law, all claims, suits, causes of action and any other rightof the Assignor (in its capacity as a Lender) against any Person, whether knownor unknown, arising under or in connection with the Credit Agreement, any otherdocuments or instruments delivered pursuant thereto or the loan transactionsgoverned thereby or in any way based on or related to any of the foregoing,including, but not limited to, contract claims, tort claims, malpracticeclaims, statutory claims and all other claims at law or in equity related tothe rights and obligations sold and assigned pursuant to clause (i)above (the rights and obligations sold and assigned pursuant to clauses (i)and (ii) above being referred to herein collectively as the “AssignedInterest”); provided that the Assignor shall remain entitled to theindemnities set forth in Section 10.04(b) of the Credit Agreementpursuant to the terms thereof.  Such saleand assignment is without recourse to the Assignor and, except as expresslyprovided in this Assignment, without representation or warranty by the Assignor.

 
|     | 1.       | Assignor: |                                             |         |
|----------|----------|-----------|--------------------------------------------------|--------------|
|     |     |      |                                             |
|     | 2.       | Assignee: |                                             | *[and is an* |
| * * | * * | * *  | *Affiliate/Approved Fund of  [identify Lender]]* |

 
| Borrower:             |       | SABRE INC.                                                                                                                                            |
|-----------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------|
|                  |       |                                                                                                                                                  |
| Administrative Agent: |       | BANK OF AMERICA, N.A.                                                                                                                                 |
|                  |       |                                                                                                                                                  |
| Credit Agreement:     |       | Credit Agreement dated  as of June      , 2004 among the Borrower, the  Lenders  party thereto and the Administrative Agent. |
|                  |       |                                                                                                                                                  |
| Published  CUSIP      |       |                                                                                                                                                  |
| Number  for Credit    |       |                                                                                                                                                  |
| Agreement:            | ** ** | **78571YAA8**                                                                                                                                         |

 

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Assigned Interest:

 
| **Facility  Assigned** | ** ** | **Aggregate  Committed  Amount of such  Facility  (for all Lenders)** | ** ** | **Amount Assigned of  Commitment/Loans under  such Facility** | ** ** | **Percentage Assigned of  Commitment/Loans under  such Facility(1)** | ** ** | **Cusip  Number** | ** ** |
|------------------------|------------|-----------------------------------------------------------------------|------------|---------------------------------------------------------------|------------|----------------------------------------------------------------------|------------|-------------------|------------|
| Revolving  Commitment  |       | $                                                                     |       |                                                          | $          |                                                                 |       |              | %          | 78571YAA8 |   |
|                   |       |                                                                  |       |                                                          |       |                                                                 |       |              |       |   |   |
|                   |       |                                                                  |       |                                                          |       |                                                                 |       |              |       |   |   |

 

[3.                                   Trade Date:                                                                                                                    (2)]

 

4.                                       EffectiveDate:                                                                                                     (3)

 

[remainder of pageintentionally left blank]

 

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(1)Set forth, to at least 9 decimals, as a percentage of the aggregateCommitment/Loans of all Lenders under the Facility being assigned.

(2)To be completed if the Assignor and the Assignee intend that the minimumassignment amount is to be determined as of the Trade Date.

(3) To be inserted byAdministrative Agent and shall be the effective date of recordation of transferin the register therefor.

 

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The terms set forth inthis Assignment and Assumption are hereby agreed to:

 
| ASSIGNOR                                        | :      | [NAME OF ASSIGNOR] |
|-------------------------------------------------|--------|--------------------|
|                                            |   |
|                                            | By:    |               |   |
|                                            | Name:  |
|                                            | Title: |
|                                            |   |
| ASSIGNEE                                        | :      | [NAME OF ASSIGNEE] |
|                                            |   |
|                                            | By:    |               |   |
|                                            | Name:  |
|                                            | Title: |
|                                            |   |
| [Consented to and](4)  Accepted:                |   |
|                                            |   |
| BANK OF AMERICA, N.A.,  as Administrative Agent |   |
|                                            |   |
| By:                                             |   |               |   |
| Name:                                           |   |
| Title:                                          |   |
|                                            |   |
| [Consented to:                                  |   |
|                                            |   |
|                                            |   |               |
|                                            |   |
| By:                                             |   |               |   |
| Name:                                           |   |
| Title:] (5)                                     |   |
|                                                 |        |                    |  |  |  |  |

 

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(4) To be added only ifthe consent of the Administrative Agent is required by the terms of the CreditAgreement.

(5)To be added only if the consent of other parties (*i.e.*,the Borrower, the L/C Issuer and/or the Swingline Lender) is required by theterms of the Credit Agreement.

 

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Annex 1

to Assignment andAssumption

 

STANDARD TERMS ANDCONDITIONS

 

1.                                       Representationsand Warranties.

 

1.1.                              Assignor.  The Assignor (a) represents and warrantsthat (i) it is the legal and beneficial owner of the Assigned Interest,(ii) the Assigned Interest is free and clear of any lien, encumbrance orother adverse claim and (iii) it has full power and authority, and hastaken all action necessary, to execute and deliver this Assignment andAssumption and to consummate the transactions contemplated hereby; and(b) assumes no responsibility with respect to (i) any statements,warranties or representations made in or in connection with the CreditAgreement or any other Credit Document, (ii) the execution, legality,validity, enforceability, genuineness, sufficiency or value of the CreditDocuments or any collateral thereunder, (iii) the financial condition ofthe Borrower, any of its Subsidiaries or Affiliates or any other Personobligated in respect of any Credit Document or (iv) the performance orobservance by the Borrower, any of its Subsidiaries or Affiliates or any otherPerson of any of their respective obligations under any Credit Document.

 

1.2.                              Assignee.  The Assignee (a) represents and warrantsthat (i) it has full power and authority, and has taken all actionnecessary, to execute and deliver this Assignment and Assumption and toconsummate the transactions contemplated hereby and to become a Lender underthe Credit Agreement, (ii) it meets all requirements of an EligibleAssignee under the Credit Agreement (subject to receipt of such consents as maybe required under the Credit Agreement), (iii) from and after the EffectiveDate, it shall be bound by the provisions of the Credit Agreement as a Lenderthereunder and, to the extent of the Assigned Interest, shall have theobligations of a Lender thereunder, (iv) it has received a copy of theCredit Agreement, together with copies of the most recent financial statementsdelivered pursuant to Section 6.04 thereof, as applicable, and suchother documents and information as it has deemed appropriate to make its owncredit analysis and decision to enter into this Assignment and Assumption andto purchase the Assigned Interest on the basis of which it has made suchanalysis and decision independently and without reliance on the AdministrativeAgent or any other Lender, (v) if it is a Foreign Lender, it has delivered(or will promptly deliver) to the Administrative Agent and the Borrower anydocumentation required to be delivered by it pursuant to the terms of theCredit Agreement, duly completed and executed by the Assignee; and(b) agrees that (i) it will, independently and without reliance onthe Administrative Agent, the Assignor or any other Lender, and based on suchdocuments and information as it shall deem appropriate at the time, continue tomake its own credit decisions in taking or not taking action under the CreditDocuments, and (ii) it will perform in accordance with their terms all ofthe obligations which by the terms of the Credit Documents are required to beperformed by it as a Lender.

 

2.                                       Payments.  From and after the Effective Date, theAdministrative Agent shall make all payments in respect of the AssignedInterest (including payments of principal, interest, fees and other amounts) tothe Assignor for amounts that have accrued to but excluding the Effective Dateand to the Assignee for amounts that accrue from and after the Effective Date.

 

3.                                       GeneralProvisions.  This Assignment andAssumption shall be binding upon, and inure to the benefit of, the partieshereto and their respective successors and assigns.  This Assignment and Assumption may beexecuted in any number of counterparts, which together shall constitute oneinstrument.  Delivery of an executedcounterpart of a signature page of this Assignment and Assumption by telecopyshall be effective as delivery of a manually executed counterpart of thisAssignment and Assumption.  THISASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCEWITH, THE LAW OF THE STATE OF NEW YORK.

 

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