Exhibit 10.1





Exhibit 10.1




This Credit Agreement has been filed to provide investors with information regarding its
terms. It is not intended to provide any other factual information about the Company. The
representations and warranties of the parties in this Credit Agreement were made to, and solely for
the benefit of, the other parties to this Credit Agreement. The assertions embodied in the
representations and warranties may be qualified by information included in other materials
exchanged by the parties that may modify or create exceptions to the representations and
warranties. Accordingly, investors should not rely on the representations and warranties as
characterizations of the actual state of facts at the time they were made or otherwise.



 


 









 







[Published CUSIP Number: ________________]




CREDIT AGREEMENT




Dated as of September 9, 2010




among




ANCESTRY.COM OPERATIONS INC.

as the Borrower,




ANCESTRY.COM INC.,

as a Guarantor




THE DOMESTIC SUBSIDIARIES OF THE BORROWER,

as Guarantors,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,




and




THE OTHER LENDERS PARTY HERETO




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	28	 
	1.03 Accounting Terms
	 	 	28	 
	1.04 Rounding
	 	 	29	 
	1.05 Times of Day
	 	 	29	 
	1.06 Letter of Credit Amounts
	 	 	29	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	30	 
	2.01 Commitments
	 	 	30	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	30	 
	2.03 Letters of Credit
	 	 	31	 
	2.04 Swing Line Loans
	 	 	38	 
	2.05 Prepayments
	 	 	41	 
	2.06 Termination or Reduction of Aggregate Revolving Commitments
	 	 	42	 
	2.07 Repayment of Loans
	 	 	42	 
	2.08 Interest
	 	 	42	 
	2.09 Fees
	 	 	43	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	44	 
	2.11 Evidence of Debt
	 	 	44	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	45	 
	2.13 Sharing of Payments by Lenders
	 	 	46	 
	2.14 Cash Collateral
	 	 	47	 
	2.15 Defaulting Lenders
	 	 	48	 
	2.16 Automatic Debit of Payments
	 	 	49	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	50	 
	3.01 Taxes
	 	 	50	 
	3.02 Illegality
	 	 	53	 
	3.03 Inability to Determine Rates
	 	 	53	 
	3.04 Increased Costs
	 	 	53	 
	3.05 Compensation for Losses
	 	 	55	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	55	 
	3.07 Survival
	 	 	56	 
	ARTICLE IV GUARANTY
	 	 	56	 
	4.01 The Guaranty
	 	 	56	 
	4.02 Obligations Unconditional
	 	 	56	 
	4.03 Reinstatement
	 	 	57	 
	4.04 Certain Additional Waivers
	 	 	57	 
	4.05 Remedies
	 	 	58	 
	4.06 Rights of Contribution
	 	 	58	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	58	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	58	 
	5.01 Conditions of Initial Credit Extension
	 	 	58	 
	5.02 Conditions to all Credit Extensions
	 	 	61	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	62	 
	6.01 Existence, Qualification and Power
	 	 	62	 
	6.02 Authorization; No Contravention
	 	 	62	 
	6.03 Governmental Authorization; Other Consents
	 	 	62	 





 


i









 





	 	 	 	 	 
	6.04 Binding Effect
	 	 	62	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	62	 
	6.06 Litigation
	 	 	63	 
	6.07 No Default
	 	 	63	 
	6.08 Ownership of Property; Liens
	 	 	64	 
	6.09 Environmental Compliance
	 	 	64	 
	6.10 Insurance
	 	 	65	 
	6.11 Taxes
	 	 	65	 
	6.12 ERISA Compliance
	 	 	65	 
	6.13 Subsidiaries
	 	 	66	 
	6.14 Margin Regulations; Investment Company Act
	 	 	66	 
	6.15 Disclosure
	 	 	66	 
	6.16 Compliance with Laws
	 	 	66	 
	6.17 Intellectual Property; Licenses, Etc.
	 	 	67	 
	6.18 Solvency
	 	 	67	 
	6.19 Perfection of Security Interests in the Collateral
	 	 	68	 
	6.20 Business Locations
	 	 	68	 
	6.21 Labor Matters
	 	 	68	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	68	 
	7.01 Financial Statements
	 	 	68	 
	7.02 Certificates; Other Information
	 	 	69	 
	7.03 Notices
	 	 	71	 
	7.04 Payment of Obligations
	 	 	73	 
	7.05 Preservation of Existence, Etc.
	 	 	73	 
	7.06 Maintenance of Properties
	 	 	73	 
	7.07 Maintenance of Insurance
	 	 	74	 
	7.08 Compliance with Laws
	 	 	74	 
	7.09 Books and Records
	 	 	74	 
	7.10 Inspection Rights
	 	 	74	 
	7.11 Use of Proceeds
	 	 	74	 
	7.12 Additional Subsidiaries
	 	 	75	 
	7.13 ERISA Compliance
	 	 	75	 
	7.14 Pledged Assets
	 	 	75	 
	7.15 Proprietary Databases; Proprietary Software
	 	 	76	 
	7.16 Maintenance of Websites and Domain Names
	 	 	76	 
	7.17 Post-Closing Deliverables
	 	 	77	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	77	 
	8.01 Liens
	 	 	77	 
	8.02 Investments
	 	 	79	 
	8.03 Indebtedness
	 	 	81	 
	8.04 Fundamental Changes
	 	 	82	 
	8.05 Dispositions
	 	 	82	 
	8.06 Restricted Payments
	 	 	83	 
	8.07 Change in Nature of Business
	 	 	83	 
	8.08 Transactions with Affiliates and Insiders
	 	 	83	 
	8.09 Burdensome Agreements
	 	 	84	 
	8.10 Use of Proceeds
	 	 	84	 
	8.11 Financial Covenants
	 	 	84	 
	8.12 Prepayment of Other Indebtedness, Etc.
	 	 	85	 
	8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity
	 	 	85	 





 


ii









 





	 	 	 	 	 
	8.14 Ownership of Subsidiaries
	 	 	85	 
	8.15 Sale Leasebacks
	 	 	85	 
	8.16 Amendments of Certain Agreements
	 	 	85	 
	8.17 Limitations on Holdings
	 	 	86	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	86	 
	9.01 Events of Default
	 	 	86	 
	9.02 Remedies Upon Event of Default
	 	 	88	 
	9.03 Application of Funds
	 	 	89	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	90	 
	10.01 Appointment and Authority
	 	 	90	 
	10.02 Rights as a Lender
	 	 	90	 
	10.03 Exculpatory Provisions
	 	 	90	 
	10.04 Reliance by Administrative Agent
	 	 	91	 
	10.05 Delegation of Duties
	 	 	91	 
	10.06 Resignation of Administrative Agent
	 	 	92	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	92	 
	10.08 No Other Duties; Etc.
	 	 	93	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	93	 
	10.10 Collateral and Guaranty Matters
	 	 	94	 
	ARTICLE XI MISCELLANEOUS
	 	 	94	 
	11.01 Amendments, Etc.
	 	 	94	 
	11.02 Notices and Other Communications; Facsimile Copies
	 	 	96	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	97	 
	11.04 Expenses; Indemnity; and Damage Waiver
	 	 	98	 
	11.05 Payments Set Aside
	 	 	100	 
	11.06 Successors and Assigns
	 	 	100	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	104	 
	11.08 Set-off
	 	 	104	 
	11.09 Interest Rate Limitation
	 	 	105	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	105	 
	11.11 Survival of Representations and Warranties
	 	 	105	 
	11.12 Severability
	 	 	106	 
	11.13 Replacement of Lenders
	 	 	106	 
	11.14 Governing Law; Jurisdiction; Etc.
	 	 	107	 
	11.15 Waiver of Right to Trial by Jury
	 	 	108	 
	11.16 Electronic Execution of Assignments and Certain Other Documents
	 	 	108	 
	11.17 USA PATRIOT Act
	 	 	108	 
	11.18 No Advisory or Fiduciary Relationship
	 	 	109	 





 


iii









 





SCHEDULES



	 	 	 
	2.01
	 	Commitments and Applicable Percentages
	6.10
	 	Insurance
	6.13
	 	Subsidiaries
	6.17
	 	IP Rights
	6.20(a)
	 	Locations of Real Property
	6.20(b)
	 	Taxpayer and Organizational Identification Numbers
	6.20(c)
	 	Changes in Legal Name, State of Formation and Structure
	8.01
	 	Liens Existing on the Closing Date
	8.02
	 	Investments Existing on the Closing Date
	8.03
	 	Indebtedness Existing on the Closing Date
	11.02
	 	Certain Addresses for Notices






EXHIBITS



	 	 	 
	A
	 	Form of Loan Notice
	B
	 	Form of Swing Line Loan Notice
	C
	 	Form of Revolving Note
	D
	 	Form of Swing Line Note
	E
	 	Form of Compliance Certificate
	F
	 	Form of Joinder Agreement
	G
	 	Form of Assignment and Assumption
	H
	 	Form of Escrow Agreement






 


iv









 







CREDIT AGREEMENT




This CREDIT AGREEMENT is entered into as of September 9, 2010 among ANCESTRY.COM OPERATIONS
INC., a Delaware corporation (the “Borrower”), the Guarantors (defined herein), the Lenders
(defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.



The Borrower has requested that the Lenders provide credit facilities for the purposes set
forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms.




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



“Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of all or any substantial portion of the
property of another Person or at least a majority of the Voting Stock of another Person, in each
case whether or not involving a merger or consolidation with such other Person and whether for
cash, property, services, assumption of Indebtedness, securities or otherwise.



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



“Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other address or account as the
Administrative Agent may from time to time notify the Borrower and the Lenders.



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



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



“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Closing Date
is ONE HUNDRED MILLION DOLLARS ($100,000,000).




“Agreement” means this Credit Agreement.


 


 









 





“Applicable Percentage” means with respect to any Lender at any time, with respect to
such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at
such time, subject to adjustment as provided in Section 2.15; provided that if the
commitment of each Lender
to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 9.02 or if the Aggregate Revolving Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



“Applicable Rate” means with respect to Revolving Loans, Swing Line Loans, Letters of
Credit and the Commitment Fee, the following percentages per annum, based upon the Consolidated
Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	 	Commitment	 	 	Letter of Credit	 	 	Eurodollar	 	 	Base Rate	 
	Pricing Tier	 	Leverage Ratio	 	 	Fee	 	 	Fee	 	 	Rate Loans	 	 	Loans	 
	1
	 	>1.25:1.0	 	 	 	0.40	%	 	 	2.00	%	 	 	2.00	%	 	 	1.00	%
	2
	 	> 1.0:1.0 but ≤ 1.25:1.0	 	 	 	0.40	%	 	 	1.75	%	 	 	1.75	%	 	 	0.75	%
	3
	 	≤1.0:1.0	 	 	 	0.40	%	 	 	1.50	%	 	 	1.50	%	 	 	0.50	%






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 7.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Tier 1 shall apply as of the first
Business Day after the date on which such Compliance Certificate was required to have been
delivered and shall continue to apply until the first Business Day immediately following the date a
Compliance Certificate is delivered in accordance with Section 7.02(b), whereupon the
Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage Ratio
contained in such Compliance Certificate. The Applicable Rate in effect from the Closing Date to
the first Business Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 7.02(b) for the fiscal quarter ending September 30, 2010 shall be
determined based upon Pricing Tier 3. Notwithstanding anything to the contrary contained in this
definition, the determination of the Applicable Rate for any period shall be subject to the
provisions of Section 2.10(b).



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



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



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit G or any other form approved by the Administrative Agent.



“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease
and (c) in respect of any Securitization Transaction of any Person, the outstanding principal
amount of such financing, after taking into account reserve accounts and making appropriate
adjustments, determined by the Administrative Agent in its reasonable judgment.


 


2









 





“Audited Financial Statements” means the audited consolidated balance sheet of
Holdings and its Subsidiaries for the fiscal year ended December 31, 2009, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of Holdings and its Subsidiaries, including the notes thereto, audited by independent
public accountants of recognized national standing and prepared in conformity with GAAP.



“Auto Extension Letter of Credit” has the meaning provided in Section
2.03(b)(iii).



“Availability Period” means, with respect to the Revolving Commitments, the period
from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the
date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 9.02.




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



“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate
plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in the “prime rate” announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change.




“Base Rate Loan” means a Loan that bears interest based on the Base Rate.




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




“Borrower Materials” has the meaning specified in Section 7.02.



“Borrowing” means each of the following: (a) a borrowing of Swing Line Loans pursuant
to Section 2.04 and (b) a borrowing consisting of simultaneous Loans of the same Type and,
in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.



“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day that is also a London Banking Day.



“Businesses” means, at any time, a collective reference to the businesses operated by
the Borrower and its Subsidiaries at such time.



“Capital Lease” means, as applied to any Person, any lease of any property by that
Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease
on the balance sheet of that Person.


 


3









 





“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans or
obligations of Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting
from such collateral shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative
Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral”
shall have a meaning correlative to the foregoing and shall include the proceeds of such cash
collateral and other credit support.



“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition, (b) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, or by any subdivision or taxing authority of any such state,
commonwealth or territory, the securities of which state, commonwealth, territory, political
subdivision or taxing authority (as the case may be) are rated either (i) A or better by S&P or A
or better by Moody’s or (ii) SP1 or better by S&P or V-MIG 1 or better by Moody’s, (c) Dollar
denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “Approved
Bank”), in each case with maturities of not more than 270 days from the date of acquisition, (d)
commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better
by Moody’s and maturing within six months of the date of acquisition, (e) repurchase agreements
entered into by any Person with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States in which such Person shall have a
perfected first priority security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations
and (f) Investments, classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940 which are administered by
reputable financial institutions having capital of at least $500,000,000 and the portfolios of
which are limited to Investments of the character described in the foregoing subdivisions (a)
through (e).



“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority; provided,
however, for purposes of this Agreement, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, guidelines or directives in connection therewith are deemed to
have gone into effect and adopted after the date of this Agreement.




“Change of Control” means the occurrence of any of the following events:




(a) Holdings shall cease to own and control, of record and beneficially, directly or
indirectly 100% of the outstanding Equity Interests of the Borrower;


 


4









 






(b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan), other than the Equity Investors, becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 30% or more of the Equity Interests of Holdings entitled
to vote for members of the board of directors or equivalent governing body of Holdings on a
fully diluted basis (and taking into account all such securities that such person or group
has the right to acquire pursuant to any option right); or




(c) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of Holdings cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on behalf of the board
of directors).



“Closed Acquisitions” means the collective reference to (a) that certain cash
Acquisition of Genline, SE, a Swedish corporation, for consideration of approximately $7,400,000
and (b) that certain cash Acquisition of the assets of ProGenealogists, Inc., a Utah corporation,
for consideration of approximately $1,500,000; “Closed Acquisition” means any one of the
foregoing.




“Closing Date” means the date hereof.



“Collateral” means a collective reference to all real and personal property with
respect to which Liens in favor of the Administrative Agent, for the benefit of the holders of the
Obligations, are purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.



“Collateral Documents” means a collective reference to the Security Agreement, the
Pledge Agreement, the Mortgages (if any), the Escrow Agreement, each Website Consent Agreement and
other security documents as may be executed and delivered by the Loan Parties pursuant to the terms
of Section 7.14.



“Co-Location Agreements” means a collective reference to (a) that certain agreement
dated as of November 19, 2009 by and between SingleEdge, Incorporated and the Borrower, as amended
or otherwise modified and (b) that certain Verizon Business Service Agreement, dated as of March
19, 2007 by and between Verizon Business Network Services, Inc. and the Borrower, as amended or
otherwise modified; “Co-Location Agreement” means any one of the foregoing.



“Commitment” means, as to each Lender, the Revolving Commitment of such Lender.


 


5









 






“Commitment Fee” has the meaning specified in Section 2.09(a).



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



“Consolidated Capital Expenditures” means, for any period, for Holdings and its
Subsidiaries on a consolidated basis, all capital expenditures, as determined in accordance with
GAAP; provided, however, that Consolidated Capital Expenditures shall not include
(a) expenditures made with proceeds of any Involuntary Disposition to the extent such expenditures
are used to purchase property that is the same as or similar to the property subject to such
Involuntary Disposition or (b) Permitted Acquisitions.



“Consolidated Capitalized Content” means, for any period, for Holdings and its
Subsidiaries on a consolidated basis, all expenditures (including without limitation expenditures
in connection with a Permitted Genealogical Data Acquisition) made for the purchase or licensing of
genealogical or historical data (including costs to scan such data and costs to the data keyed and
indexed to make it searchable), as determined in accordance with GAAP.



“Consolidated Cash Taxes” means, for any period, for Holdings and its Subsidiaries on
a consolidated basis, the aggregate of all taxes, as determined in accordance with GAAP, to the
extent the same are paid in cash during such period.



“Consolidated EBITDA” means, for any period, for Holdings and its Subsidiaries on a
consolidated basis, an amount equal to (a) Consolidated Net Income for such period plus
(without duplication) (b) the following to the extent deducted in calculating such Consolidated Net
Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state,
local and foreign income taxes payable by Holdings and its Subsidiaries for such period, (iii)
depreciation and amortization expense for such period, including any non-cash charges associated
with any impairment analyses required under Accounting Standards Codification 350 for goodwill and
other intangible assets, (iv) all non-cash, non-recurring charges or expenses for such period
(excluding any non-cash charges or expenses related to receivables) that do not represent a cash
item in such period or any future period and (v) non-cash stock based employee compensation
expenses for such period, all as determined in accordance with GAAP, minus (c) to the
extent included in calculating such Consolidated Net Income, all non-cash, non-recurring income or
gains for such period, as determined in accordance with GAAP.



“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ended for
which the Borrower has delivered financial statements pursuant to Section 7.01(a) or
(b) to (b) Consolidated Fixed Charges for the period of the four fiscal quarters most
recently ended.



“Consolidated Fixed Charges” means, for any period, for Holdings and its Subsidiaries
on a consolidated basis, an amount equal to the sum of (i) Consolidated Cash Taxes for such period
plus (ii) the cash portion of Consolidated Interest Charges for such period plus
(iii) Consolidated Capital Expenditures for such period (excluding Consolidated Capital
Expenditures made in connection with the acquisition of one data center in an amount not to exceed
$15,000,000 during the term of this Agreement) plus (iv) Consolidated Scheduled Principal
Payments for such period (other than Consolidated Scheduled Principal Payments made on Consolidated
Funded Indebtedness under the Existing Credit Agreement during the fiscal year of Holdings ending
December 31, 2010) plus (v) without duplication of clause (iii) above, Consolidated
Capitalized Content for such period plus (vi) the amount of cash dividends and other
Restricted Payments made by the Loan Parties during such period (excluding the aggregate amount of
Restricted Payments permitted by Section 8.06(d) made by the Loan Parties during such
period), all as determined in accordance with GAAP.


 


6









 





“Consolidated Funded Indebtedness” means Funded Indebtedness of Holdings and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP.



“Consolidated Interest Charges” means, for any period, for Holdings and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest, commitment fees and all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance financing and net costs
under Swap Contracts in respect of interest rates and amortization or write-off of debt discount
and debt issuance costs and commissions, discounts and other fees and charges associated with
borrowed money, in each case, to the extent such net costs are allocable to such period in
accordance with GAAP) or in connection with the deferred purchase price of assets, in each case to
the extent treated as interest in accordance with GAAP, plus (ii) the portion of rent
expense with respect to such period under Capital Leases that is treated as interest in accordance
with GAAP plus (iii) the implied interest component of Synthetic Leases with respect to
such period.



“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of
(a)(i) Consolidated Funded Indebtedness as of such date minus (ii) the outstanding
principal amount of Subordinated Indebtedness as of such date to (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended.



“Consolidated Net Income” means, for any period, for Holdings and its Subsidiaries on
a consolidated basis, the net income of Holdings and its Subsidiaries (excluding extraordinary
gains and extraordinary losses and gains and losses from discontinued operations) for that period,
as determined in accordance with GAAP.



“Consolidated Net Worth” means, as of any date of determination, consolidated
shareholders’ equity or net worth of Holdings and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.



“Consolidated Scheduled Principal Payments” means for any period for Holdings and its
Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness, as determined in accordance with GAAP. For purposes of this
definition, “scheduled payments of principal” (a) shall be determined without giving effect to any
reduction of such scheduled payments resulting from the application of any voluntary or mandatory
prepayments made during the applicable period, (b) shall be deemed to include the Attributable
Indebtedness in respect of Capital Leases, Securitization Transactions and Synthetic Leases and (c)
shall not include any voluntary prepayments or mandatory prepayments required pursuant to
Section 2.05.



“Consolidated Tangible Net Worth” means, as of any date of determination, Consolidated
Net Worth minus intangible assets consisting of goodwill, Patents, Trademarks, Copyrights
and other assets properly classified as “intangible assets” in accordance with GAAP.



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



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


 


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“Copyright License” means any agreement, whether written or oral, providing for the
grant by or to a Loan Party or any Subsidiary of any right under any Copyright.



“Copyrights” means (a) all proprietary rights afforded Works pursuant to Title 17 of
the United States Code, including, without limitation, all rights in mask works, copyrights and
original designs and all proprietary rights afforded such Works by other countries for the full
term thereof (and including all rights accruing by virtue of bilateral or international treaties
and conventions thereto), whether registered or unregistered, including, but not limited to, all
applications for registration, renewals, extensions, reversions or restorations thereof now or
hereafter provided for by law and all rights to make applications for registrations and
recordations, regardless of the medium of fixation or means of expression and (b) all copyright
rights under the copyright laws of the United States and other countries for the full term thereof
(and including all rights accruing by virtue of bilateral or international copyright treaties and
conventions), whether registered or unregistered, including, but not limited to, all applications
for registrations, renewals, extensions, reversions or restorations of copyrights now or hereafter
provided for by law and all rights to make applications for copyright registrations and
recordations, regardless of the medium of fixation or means of expression.



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



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



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



“Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum, in each case to the fullest extent permitted by applicable Laws and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.



“Defaulting Lender” means, subject to Section 2.15(b), any Lender, as
determined by the Administrative Agent, that (a) has failed to perform any of its funding
obligations hereunder, including in respect of its Loans or participations in respect of Letters of
Credit or Swing Line Loans, within three (3) Business Days of the date required to be funded by it
hereunder, (b) has notified the Borrower or the Administrative Agent that it does not intend to
comply with its funding obligations or has made a public statement to that effect with respect to
its funding obligations hereunder or under other agreements in which it commits to extend credit,
(c) has failed, within three (3) Business Days after request by the Administrative Agent, to
confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding
obligations or (d) has, or has a direct or indirect parent company that has, (i) become the subject
of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it or (iii) taken any action in
furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment;
provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any Equity Interests in that Lender or any direct or indirect parent company thereof
by a Governmental Authority.


 


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“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or any
Subsidiary (including the Equity Interests of any Subsidiary), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith, but excluding (a) the sale, lease, license, transfer or
other disposition of inventory in the ordinary course of business; (b) the sale, lease, license,
transfer or other disposition in the ordinary course of business of surplus, obsolete or worn out
property no longer used or useful in the conduct of business of any Loan Party and its
Subsidiaries; (c) any sale, lease, license, transfer or other disposition of property to any Loan
Party or any Subsidiary; provided, that if the transferor of such property is a Loan Party
(i) the transferee thereof must be a Loan Party or (ii) to the extent such transaction constitutes
an Investment, such transaction is permitted under Section 8.02, (d) any Involuntary
Disposition, (e) any sale, lease, license, transfer or other disposition of property by any Foreign
Subsidiary to another Foreign Subsidiary, (f) dispositions of cash, Cash Equivalents and
Investments permitted under Section 8.02(s), in each case in the ordinary course of
business, (g) licenses of intellectual property on a non-exclusive basis or on an exclusive basis
so long as such exclusive licensing is limited to geographic areas, particular fields of use,
customized products for customers or limited time periods, and so long as after giving effect to
such license, the Loan Parties retain sufficient rights to use the subject intellectual property as
to enable them to continue to conduct their business in the ordinary course, (h) to the extent
constituting Disposition, Investments permitted by Section 8.02, transactions permitted by
Section 8.04 and Liens permitted by Section 8.01, (i) discounts or forgiveness of
accounts receivable in the ordinary course of business or in connection with collection or
compromise thereof and (j) leases and subleases, licenses and sublicenses of real or personal
property (other than intellectual property) in the ordinary course of business.




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



“Domain Names” means all domain names and URL’s owned by any Loan Party or any
Subsidiary or acquired by any Loan Party or any Subsidiary via assignment, purchase or otherwise
and/or all domain names that any Loan Party or any Subsidiary have or obtain the right to use,
operate, manage or control pursuant to a license from another Person, whether on an exclusive or
nonexclusive basis, including, without limitation, the registrations, applications and licenses
listed on Schedule 6.17 hereto, along with any and all renewals and extensions thereof.



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



“Earn Out Obligations” means, with respect to an Acquisition, all obligations of the
Borrower or any Subsidiary to make earn out or other contingency payments (including purchase price
adjustments, earn out or other contingency payments under non-competition and consulting
agreements, or other indemnity obligations) pursuant to the documentation relating to such
Acquisition. The amount of any Earn Out Obligations at the time of determination shall be the
aggregate amount, if any, of such Earn Out Obligations that are required at such time under GAAP to
be recognized as liabilities on the consolidated balance sheet of the Borrower.



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


 


9









 





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



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



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



“Equity Investors” means the collective reference to Spectrum Equity Investors V,
L.P., Spectrum V Investment Managers’ Fund, L.P., Spectrum Equity Investors III, L.P., SEI III
Entrepreneurs’ Fund, L.P. and Spectrum III Investment Managers’ Fund, L.P.




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



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



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from
a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Sections 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate
a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in endangered or
critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.


 


10









 





“Escrow Agreement” means that certain escrow agreement, substantially in the form of
Exhibit H hereto, executed and delivered by the Loan Parties and the escrow agent pursuant
to which the escrow agent shall agree to keep (a) updated copies of the unencrypted data files for
the Proprietary Databases which are material to the business of the Borrower and its Subsidiaries
taken as a whole and (b) the source code for the Proprietary Software which is material to the
business of the Borrower and its Subsidiaries taken as a whole, in each case, in escrow for the
benefit of the Loan Parties and the Administrative Agent, as the same may be amended, amended and
restated, modified or replaced in accordance with the terms of this Agreement.




“Eurodollar Base Rate” means:




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




(b) for any interest rate calculation with respect to a Base Rate Loan on any date, the
rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m. London time determined
two London Banking Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such published rate
is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan being made
or maintained with a term equal to one month would be offered by Bank of America’s London
Branch to major banks in the London interbank eurodollar market at their request at the date
and time of determination.



“Eurodollar Rate” means (a) for any Interest Period with respect to any Eurodollar
Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient
obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest
Period by (ii) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan
for such Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at
a rate based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be
equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for
such day by (ii) one minus the Eurodollar Reserve Percentage for such Base Rate Loan for
such day.



“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a)
of the definition of “Eurodollar Rate”.


 


11









 





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




“Event of Default” has the meaning specified in Section 9.01.



“Excluded Property” means, with respect to any Loan Party, including any Person that
becomes a Loan Party after the Closing Date as contemplated by Section 7.12, (a) any owned
or leased real or personal property which is located outside of the United States unless requested
by the Administrative Agent or the Required Lenders, (b) any personal property (including, without
limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by
the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in
either the United States Copyright Office or the United States Patent and Trademark Office, unless
requested by the Administrative Agent or the Required Lenders; provided that such exclusion shall
not apply to any IP Rights except to the extent such IP Rights arise under the Laws of a country
other than the Unites States, its territories or its possessions, (c) the Equity Interests of any
direct Foreign Subsidiary of a Loan Party to the extent not required to be pledged to secure the
Obligations pursuant to Section 7.14(a), (d) any property which, subject to the terms of
Section 8.09, is subject to a Lien of the type described in Section 8.01(i)
pursuant to documents which prohibit such Loan Party from granting any other Liens in such property
and (e) unless requested by the Administrative Agent or the Required Lenders, any leasehold
interest of any Loan Party in real property.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 11.13), any
United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign
Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(i) or
(c).



“Existing Credit Agreement” means that certain Credit and Guaranty Agreement dated as
of December 5, 2007 among the Borrower, Haley Acquisition Corporation, as the borrower prior to
giving effect to the Target Acquisition (as defined in the Existing Credit Agreement), the
guarantors party thereto, the lenders party thereto, CIT Lending Services Corporation, as
administrative agent, Bank of Montreal, Chicago Branch, as syndication agent, Deutsche Bank Trust
Company Americas, as documentation agent, Churchill Financial LLC, as co-documentation agent, Zions
First National Bank, as l/c issuer and swingline lender BMO Capital Markets, Deutsche Bank Trust
Company Americas and CIT Capital Securities, LLC, as co-lead arrangers and BMO Capital Markets and
CIT Capital Securities, LLC, as co-book runners, as previously amended or modified.



“Facilities” means, at any time, a collective reference to the facilities and real
properties owned, leased or operated by any Loan Party or any Subsidiary.


 


12









 





“FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



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



“Fee Letter” means the letter agreement, dated as of July 26, 2010 between the
Borrower and Bank of America.



“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes (including such a Lender when
acting in the capacity of the L/C Issuer). For purposes of this definition, the United States,
each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.




“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.




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



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



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



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




(a) all obligations for borrowed money, whether current or long-term (including the
Obligations and any Subordinated Indebtedness) and all obligations of such Person evidenced
by bonds, debentures, notes, loan agreements or other similar instruments;




(b) all purchase money Indebtedness;




(c) the principal portion of all obligations under conditional sale or other title
retention agreements relating to property purchased by the Borrower or any Subsidiary (other
than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business);


 


13









 






(d) all obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments;




(e) all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and, in each case, not
past due for more than 90 days after the date on which such trade account payable was
created), including, without limitation, any Earn Out Obligations recognized as a liability
on the balance sheet of Holdings and its Subsidiaries in accordance with GAAP;




(f) the Attributable Indebtedness of Capital Leases, Securitization Transactions and
Synthetic Leases;




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




(h) all Funded Indebtedness of others secured by (or for which the holder of such
Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien on, or payable out of the proceeds of production from, property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed;




(i) all Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (h) above of another Person; and




(j) all Funded Indebtedness of the types referred to in clauses (a) through (i) above
of any partnership or joint venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general partner or joint venturer,
except to the extent that Funded Indebtedness is expressly made non-recourse to such Person.



For purposes hereof, the amount of any direct obligation arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments shall be the maximum amount available to be drawn thereunder.



“GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, consistently applied and as in effect from time to time.



“Governmental Approvals” means any and all licenses, permits, certificates,
certifications, consents, registrations or contracts, authorizations and approvals of each
Governmental Authority issued or required under Laws applicable to the business of the Borrower or
any of its Subsidiaries or necessary in the sale, furnishing, or delivery of goods or services
under Laws applicable to the business of the Borrower or any of its Subsidiaries.



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


 


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



“Guarantors” means Holdings, each Domestic Subsidiary of the Borrower identified as a
“Guarantor” on the signature pages hereto and each other Person that joins as a Guarantor pursuant
to Section 7.12, together with their successors and permitted assigns.



“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV.



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




“Holdings” means Ancestry.com Inc., a Delaware corporation.




“Honor Date” has the meaning set forth in Section 2.03(c).



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




(a) all Funded Indebtedness;




(b) the Swap Termination Value of any Swap Contract;




(c) all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and




(d) all Indebtedness of the types referred to in clauses (a) through (c) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which any Loan Party or any Subsidiary is a general partner or
joint
venturer, unless such Indebtedness is expressly made non-recourse to such Loan Party or
such Subsidiary.


 


15









 






“Indemnified Taxes” means Taxes other than Excluded Taxes.




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




“Information” has the meaning specified in Section 11.07.



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



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




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




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




(c) no Interest Period with respect to any Loan shall extend beyond the Maturity Date.




“Interim Financial Statements” has the meaning set forth in Section 5.01(c).




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



“Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) an
Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



“Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of any Loan Party or any of its
Subsidiaries.


 


16









 





“IP Rights” means, collectively, all Copyrights, all Domain Names, all Websites, all
Patents, all Proprietary Databases, all Proprietary Software, all Trademarks, all Trade Secrets and
all Other Intellectual Property owned and/or used by any Loan Party or any Subsidiary and all
Copyright Licenses, all Patent Licenses, all Trademark Licenses and all Website Agreements.




“IRS” means the United States Internal Revenue Service.



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



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



“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit
F executed and delivered by a Domestic Subsidiary in accordance with the provisions of
Section 7.12.



“Laws” means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



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



“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of
Revolving Loans.



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



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



“Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto and their successors and assigns and, as the context requires, includes the Swing Line
Lender.


 


17









 





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



“Letter of Credit” means any letter of credit issued hereunder. A letter of credit
may be a commercial letter of credit or a standby letter of credit.



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



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




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



“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $5,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



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



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



“Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder
Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the
provisions of Section 2.14 of this Agreement, the Collateral Documents and the Fee Letter.



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




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



“London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



“Malicious Code” means computer instructions, files, programs or program code,
software routines, hardware components, devices or techniques and combinations of the foregoing
(including any copy protection key, code clock, drop dead services, time bomb, virus, Trojan
horses, worm, trap door, back door and other harmful code) that can, or were designed to, affix
themselves to, bury themselves within or send instructions to, other files, data, programs or
program code and codes or instructions that are designed to (a) permit the unauthorized access to
software or (b) disable, disrupt, delete, distort, modify, damage, erase, impede or otherwise harm
in any manner software, hardware or data.


 


18









 





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



“Material Contracts” means the collective reference to (i) the Lease dated May 1, 2006
between the Borrower and TCP-Provo, LLC, as amended or otherwise modified and (ii) each Co-Location
Agreement; “Material Contract” means any one of the foregoing.



“Material Domain Names” means all Domain Names which are material to the business of
the Borrower and its Subsidiaries taken as a whole (including without limitation those certain
Domain Names set forth on Schedule 6.17).



“Material Foreign Subsidiary” means any Foreign Subsidiary of Holdings that (a) as of
any date of determination, owns at least ten percent (10%) or more of the consolidated assets of
Holdings and its Subsidiaries or (b) as of the last day of the most recently ended fiscal quarter,
for the four quarter period ending on such date, has Consolidated EBITDA attributable to it for
such period constituting ten percent (10%) or more of the Consolidated EBITDA of Holdings and its
Subsidiaries for such period, in each case as determined in accordance with GAAP.



“Material IP Rights” means all IP Rights that are material to the business of the
Borrower and its Subsidiaries taken as a whole; “Material IP Right” means any IP Right that
is material to the business of the Borrower and its Subsidiaries taken as a whole.




“Maturity Date” means September 9, 2013.




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



“Mortgaged Property” means any real property that is owned or leased by a Loan Party
and is subject to a Mortgage.



“Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport
to grant to the Administrative Agent, for the benefit of the holders of the Obligations, a security
interest in the fee interest and/or leasehold interests of any Loan Party in real property (other
than Excluded Property).



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



“Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not under common control,
as such a plan is described in Section 4064 of ERISA.



“Note” or “Notes” means the Revolving Notes and/or the Swing Line Note,
individually or collectively, as appropriate.


 


19









 





“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of
Credit, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing
shall also include (a) all obligations under any Swap Contract between any Loan Party and any
Lender or Affiliate of a Lender that is permitted to be incurred pursuant to Section
8.03(d) and (b) all obligations under any Treasury Management Agreement between any Loan Party
and any Lender or Affiliate of a Lender.



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



“Other Intellectual Property” means all worldwide intellectual property rights,
proprietary rights and common-law rights, whether registered or unregistered, not otherwise
included in Domain Names, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses or Trade Secrets, including, without limitation, all rights to and under all new
and useful inventions, discoveries, methods, processes, designs, technology, art, trade dress,
algorithms, software, concepts, protocols, electronic or other databases and all improvements
thereof and all know-how related thereto.



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



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




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



“Patent License” means any agreement, whether written or oral, providing for the grant
by or to a Loan Party or any Subsidiary of any right under any Patent.



“Patents” means all letters patent and patent applications in the United States and
all other countries (and all letters patent that issue therefrom) and all reissues, reexaminations,
extensions, renewals, divisions and continuations (including continuations-in-part and continuing
prosecution applications) thereof, for the full term thereof.



“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.


 


20









 





“Pending Acquisition” means that certain cash Acquisition referred to as “Project
Houston”, for consideration of approximately $40,000,000.




“Pension Act” means the Pension Protection Act of 2006.



“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 3004 and 305 of ERISA.



“Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to minimum funding standards
under Section 412 of the Code.



“Permitted Acquisitions” means Investments consisting of an Acquisition by any Loan
Party (other than Holdings) or any Subsidiary (other than any Permitted Genealogical Data
Acquisition), provided, that (i) no Default or Event of Default shall have occurred
and be continuing or would result from such Acquisition, (ii) the property acquired (or the
property of the Person acquired) in such Acquisition is used or useful in the same or a related
line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any
reasonable extensions or expansions thereof), (iii) the Administrative Agent shall have received
all items in respect of the Equity Interests or property acquired in such Acquisition required to
be delivered by the terms of Section 7.12 and/or Section 7.14, (iv) in the case of
an Acquisition of the Equity Interests of another Person, the board of directors (or other
comparable governing body) of such other Person shall have duly approved such Acquisition, (v) the
Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties
would be in compliance with the financial covenants set forth in Section 8.11 as of the
most recent fiscal quarter for which the Borrower was required to deliver financial statements
pursuant to Section 7.01(a) or (b), (vi) the representations and warranties made by
the Loan Parties in each Loan Document shall be true and correct in all material respects at and as
if made as of the date of such Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date, (vii) immediately after giving
effect to such Acquisition, the Loan Parties shall have cash and Cash Equivalents and availability
under the Aggregate Revolving Commitments of at least $30,000,000, (viii) if such Acquisition
involves the purchase of Equity Interests in a partnership between the Borrower (or a Subsidiary of
the Borrower) as a general partner and entities unaffiliated with the Borrower or such Subsidiary
as the other partners, such transaction shall be effected by having such Equity Interests acquired
by a corporate holding company directly or indirectly wholly owned by the Borrower newly formed for
the sole purpose of effecting such transaction and (ix)(a) the aggregate consideration ((A)
including cash and non-cash consideration, any assumption of Indebtedness, deferred purchase price
and any Earn Out Obligations and (B) excluding equity consideration) paid by the Borrower and its
Subsidiaries for all Acquisitions consummated from the Closing Date to the date on which such
Acquisition is consummated (including all consideration paid by the Borrower and its Subsidiaries
in connection with such Acquisition) shall not exceed an aggregate amount equal to the lesser of
(x) $80,000,000 and (y) 100% of Consolidated EBITDA for the twelve month period ending as of the
most recent fiscal period end for which the Borrower was required to deliver financial statements
pursuant to Section 7.01(a) or (b); provided, that, if the Borrower
shall demonstrate that, upon giving effect to such Acquisition on a Pro Forma Basis, the
Consolidated Leverage Ratio as of the most recent fiscal quarter for which the Borrower was
required to deliver financial statements pursuant to Section 7.01(a) or (b) would
be less than or equal to 0.50:1.0, the aggregate consideration ((A) including cash and non-cash
consideration, any assumption of Indebtedness, deferred purchase price and any Earn Out Obligations
and (B) excluding equity consideration) paid by the
Borrower and its Subsidiaries for all Acquisitions consummated from the Closing Date to the
date on which such Acquisition is consummated (including all consideration paid by the Borrower and
its Subsidiaries in connection with such Acquisition) shall not exceed an aggregate amount equal to
100% of Consolidated EBITDA for the twelve month period ending as of the most recent fiscal period
end for which the Borrower was required to deliver financial statements pursuant to Section
7.01(a) or (b).


 


21









 





“Permitted Genealogical Data Acquisitions” means Investments consisting of an
Acquisition by any Loan Party (other than Holdings) or any Subsidiary of genealogical or historical
data or an Acquisition by any Loan Party (other than Holdings) or any Subsidiary of the Equity
Interests of another Person for which the primary purpose of consummating such Acquisition is to
obtain genealogical or historical data; provided, that, (i) no Default or Event of
Default shall have occurred and be continuing or would result from such Acquisition, (ii) the
property acquired (or the property of the Person acquired) in such Acquisition is used or useful in
the same or a related line of business as the Borrower and its Subsidiaries were engaged in on the
Closing Date (or any reasonable extensions or expansions thereof), (iii) the Administrative Agent
shall have received all items in respect of the Equity Interests or property acquired in such
Acquisition required to be delivered by the terms of Section 7.12 and/or Section
7.14, (iv) in the case of an Acquisition of the Equity Interests of another Person where the
approval of the board of directors (or other comparable governing body) of such other Person is
necessary, such board of directors (or such other comparable governing body) of such other Person
shall have duly approved such Acquisition and (v) if such Acquisition involves the purchase of
Equity Interests in a partnership between the Borrower (or a Subsidiary of the Borrower) as a
general partner and entities unaffiliated with the Borrower or such Subsidiary as the other
partners, such transaction shall be effected by having such Equity Interests acquired by a
corporate holding company directly or indirectly wholly owned by the Borrower newly formed for the
sole purpose of effecting such transaction.



“Permitted Investments” means, at any time, Investments by any Loan Party or any of
its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.



“Permitted Liens” means, at any time, Liens in respect of property of any Loan Party
or any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section
8.01.



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



“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any
such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.




“Platform” has the meaning specified in Section 7.02.



“Pledge Agreement” means the pledge agreement dated as of the Closing Date executed in
favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of
the Loan Parties, as amended or modified from time to time in accordance with the terms hereof.



“Pro Forma Basis” means, for purposes of calculating the financial covenants set forth
in Section 8.11 (including for purposes of determining the Applicable Rate), that any
Disposition, Involuntary Disposition, Acquisition or Restricted Payment shall be deemed to have
occurred as of the first day of the most recent four fiscal quarter period preceding the date of
such transaction for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to any
Disposition or Involuntary Disposition, income statement and cash flow statement items (whether
positive or negative)


 


22









 






attributable to the property disposed of shall be excluded to
the extent relating to any period occurring prior to the date of such transaction and (b) with
respect to any Acquisition, income statement items attributable to the Person or property acquired
shall be included to the extent relating to any period applicable in such calculations to the
extent (A) such items are not otherwise included in such income statement items for Holdings and
its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in
Section 1.01 and (B) such items are supported by financial statements or other information
reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed
by any Loan Party or any Subsidiary (including the Person or property acquired) in connection with
such transaction (A) shall be deemed to have been incurred as of the first day of the applicable
period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by utilizing the rate
which is or would be in effect with respect to such Indebtedness as at the relevant date of
determination.



“Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of
Holdings containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 as of the most recent fiscal quarter end for which the Borrower was required
to deliver financial statements pursuant to Section 7.01(a) or (b) after giving
effect to the applicable transaction on a Pro Forma Basis.



“Proprietary Databases” means any proprietary database owned, licensed or otherwise
used by any Loan Party or any Subsidiary including, without limitation, the genealogy database and
all associated data.



“Proprietary Software” means any proprietary software owned, licensed or otherwise
used by any Loan Party or any Subsidiary other than any software that is generally commercially
available, including without limitation, the object code and source code forms of such software and
all associated documentation.




“Public Lender” has the meaning specified in Section 7.02.




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



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



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



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



“Required Lenders” means, at any time, (a) at such time as there are fewer than four
(4) Lenders hereunder, Lenders holding in the aggregate 66.7% or more of (i) the unfunded
Commitments and the outstanding Loans, L/C Obligations and participations therein or (ii) if the
Commitments have been terminated, the outstanding Loans, L/C Obligations and participations therein
and (b) at such time as there are four (4) or more Lenders hereunder, Lenders holding in the
aggregate more than 50% of (i) the unfunded Commitments and the outstanding Loans, L/C Obligations
and participations therein or (ii) if the Commitments have been terminated, the outstanding Loans,
L/C Obligations and participations therein. The unfunded Commitments of, and the outstanding Loans
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


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“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party and, solely for purposes of
the delivery of certificates pursuant to Sections 5.01 or 7.12(b), the secretary or
any assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.



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



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




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




“Revolving Note” has the meaning specified in Section 2.11(a).



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



“Sale and Leaseback Transaction” means, with respect to any Loan Party or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Loan Party or such
Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold or transferred.



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



“Securitization Transaction” means, with respect to any Person, any financing
transaction or series of financing transactions (including factoring arrangements) pursuant to
which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.



“Security Agreement” means the security agreement dated as of the Closing Date
executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations,
by each of the Loan Parties, as amended or modified from time to time in accordance with the terms
hereof.


 


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“Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as
they mature in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business
or a transaction, and is not about to engage in a business or a transaction, for which such
Person’s property would constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair
value of the property of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person and (e) the present fair salable value
of the assets of such Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured. In computing the amount
of contingent liabilities at any time, it is intended that such liabilities will be computed at the
amount which, in light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.



“Subordinated Indebtedness” means the collective reference to any Indebtedness of any
Loan Party subordinated in right and time of payment to the Obligations pursuant to a Subordination
Agreement and containing such terms and conditions as are satisfactory to the Administrative Agent
and the Required Lenders.



“Subordinated Indebtedness Documents” means any agreement evidencing Subordinated
Indebtedness including any Subordination Agreement and all security agreements, guaranty agreements
and other documents, agreements and instruments executed in connection therewith, in each case as
amended or otherwise modified and in form and substance satisfactory to the Administrative Agent
and the Required Lenders.



“Subordination Agreement” means (a) an agreement (in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders) among any Loan Party, a
subordinating creditor of such Loan Party and the Administrative Agent, on behalf of the holders of
the Obligations, pursuant to which (i) the Subordinated Indebtedness is subordinated to the prior
payment and satisfaction of the Obligations in full and (ii) the subordinating creditor agrees not
to require, accept or maintain any Lien on any asset of the Loan Parties and their Subsidiaries,
and (b) any note, indenture, note purchase agreement or similar instrument or agreement, pursuant
to which the indebtedness evidenced thereby or issued thereunder is subordinated to the Obligations
by the express terms of such note, indenture, note purchase agreement or similar instrument or
agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent
and the Required Lenders.



“Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of Voting Stock is at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of Holdings.



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


 


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



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




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



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




“Swing Line Note” has the meaning specified in Section 2.11(a).



“Swing Line Sublimit” means an amount equal to the lesser of (a) $7,000,000 and (b)
the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Revolving Commitments.



“Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under GAAP.



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




“Threshold Amount” means $10,000,000.



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



“Trademark License” means any agreement, written or oral, providing for the grant by
or to a Loan Party or any Subsidiary of any right to use a Trademark.



“Trademarks” means all statutory and common law trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles, service marks, logos
and other source or business identifiers, and the goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all applications to
register in connection therewith, under the laws of the United States, any state thereof or any
other country or any political subdivision thereof, or otherwise, for the full term and all
renewals thereof.


 


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“Trade Secrets” means any data or information of any Loan Party or any Subsidiary that
is not commonly known by or available to the public and which (a) derives economic value, actual or
potential, from not being generally known to and not being readily ascertainable by proper means by
other persons who can obtain economic value from its disclosure or use and (b) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.



“Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overdraft, credit or debit card,
funds transfer, automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade finance services
and other cash management services.



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




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




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



“Voting Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.



“Website Agreements” means all agreements between any Loan Party and/or Subsidiary and
any other Person pursuant to which such Person provides any services relating to the hosting,
design, operation, management or maintenance of any Website, including without limitation, all
agreements with any Person providing website hosting, database management or maintenance or
disaster recovery services to any Loan Party and all agreements with any domain name registrar, as
all such agreements may be amended, supplemented or otherwise modified from time to time in
accordance with this Agreement.



“Website Consent Agreement” means, with respect to the entity providing web hosting,
maintenance, disaster recovery or related services to any Loan Party, an agreement in form and
substance satisfactory to the Administrative Agent, executed and delivered by the applicable Loan
Party, such entity providing such services and the Administrative Agent pursuant to which such
entity shall, among other things, consent to the grant by such Loan Party to the Administrative
Agent of a Lien in the Loan Party’s rights under the related Website Agreements and agree that the
Administrative Agent may transfer such rights to itself or any third party in the exercise of its
remedies under the Loan Documents following the occurrence of any Event of Default, as such
agreement may be amended, supplemented or otherwise modified from time to time.



“Websites” means all websites that any Loan Party or any Subsidiary shall operate,
manage or control through a Domain Name, whether on an exclusive or nonexclusive basis, including,
without limitation, all content, elements, data, information, materials, hypertext markup language
(HTML), software and code, works of authorship, textual works, visual works, aural works,
audiovisual works and functionality embodied in, published or available through each such website
and all IP Rights in each of the foregoing.



“Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the
time owned by the Borrower directly or indirectly through other Persons 100% of whose Equity
Interests are at the time owned, directly or indirectly, by the Borrower.


 


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“Work” means any work or subject matter that is subject to protection pursuant to
Title 17 of the United States Code.



1.02 Other Interpretive Provisions.



With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




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




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




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



1.03 Accounting Terms.



(a) Generally. Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements; provided, however, that calculations of
Attributable Indebtedness under any Synthetic Lease or the implied interest component of any
Synthetic Lease shall be made by the Loan Parties in accordance with accepted financial practice
and consistent with the terms of such Synthetic Lease. Notwithstanding the foregoing, for purposes
of determining compliance with any covenant (including the computation of any
financial covenant) contained herein, Indebtedness of Holdings and its Subsidiaries shall be
deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof, and
the effects of FASB ASC 825 on financial liabilities shall be disregarded.


 


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(b) Changes in GAAP. The Borrower will provide a written summary of material changes
in GAAP and in the consistent application thereof with each annual and quarterly Compliance
Certificate delivered in accordance with Section 7.02(a). If at any time any change in
GAAP would affect the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to such change therein
and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.



(c) Calculations. Notwithstanding the above, the parties hereto acknowledge and agree
that all calculations of the financial covenants in Section 8.11 (including for purposes of
determining the Applicable Rate) shall be made on a Pro Forma Basis.



1.04 Rounding.



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



1.05 Times of Day.



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



1.06 Letter of Credit Amounts.



Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.


 


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ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Commitments.



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



2.02 Borrowings, Conversions and Continuations of Loans.



(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a
conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv)
the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.



(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice
of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans as described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of Bank of America with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date of a Borrowing of Revolving Loans, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings and second, shall be made available to the
Borrower as provided above.


 


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



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



(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than 10 Interest
Periods in effect with respect to all Loans.



2.03 Letters of Credit.



(a) The Letter of Credit Commitment.




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




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




(A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved such expiry date; or




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


 


31









 






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




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




(B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally;




(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000, in the case
of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of
Credit;




(D) such Letter of Credit is to be denominated in a currency other than
Dollars; or




(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential
Fronting Exposure, as it may elect in its sole discretion.




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




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




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


 


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



(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least five (5)
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing thereunder; (G)
the purpose and nature of the requested Letter of Credit; and (H) such other matters as the
L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter
of Credit, such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the
Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents
and information pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.




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




(iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed
upon at the time


 


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such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to
make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension
Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may
not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to
an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is seven Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied, and in each
case directing the L/C Issuer not to permit such extension.




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




(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative
Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under
a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s
Applicable Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the
conditions set forth in Section 5.02 (other than the delivery of a Loan Notice) and
provided that, after giving effect to such Borrowing, the Total Revolving Outstandings shall
not exceed the Aggregate Revolving Commitments. Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone
if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) to the Administrative Agent for the account of the L/C Issuer at the Administrative
Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount
not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative
Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender
that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower
in such amount. The Administrative Agent shall remit the funds so received to the L/C
Issuer.


 


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(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot
be satisfied
or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which
L/C Borrowing shall be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03.




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




(v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.02 (other than delivery by the Borrower of a Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.




(vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on interbank
compensation. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.




(d) Repayment of Participations.




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


 


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(ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this
Agreement.



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




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




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




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




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




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



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


 


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



(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.



(h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of Credit;
provided, however, any Letter of Credit Fees otherwise payable for the account of a
Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not
provided Cash Collateral satisfactory to the L/C Issuer pursuant to this Section 2.03 shall
be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance
with the upward adjustments in their respective Applicable Percentages allocable to such Letter of
Credit pursuant to Section 2.15(a)(iv), with the balance of such fee, if any, payable to
the L/C Issuer for its own account. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. Letter of Credit Fees shall be (i) computed on a quarterly
basis in arrears and (ii) due and payable on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there
is any change in the Applicable Rate during any quarter, the daily amount available to be drawn
under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of the Required
Lenders while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.


 


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(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect
to each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on the
amount of such Letter of Credit and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a
rate separately agreed between the Borrower and the L/C Issuer, computed on the amount of such
increase and payable upon the effectiveness of such amendment and (iii) with respect to each
standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the actual
daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit) and on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period (or portion thereof,
in the case of the first payment), commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.06. In addition,
the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.



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



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



2.04 Swing Line Loans.



(a) Swing Line Facility. Subject to the terms and conditions set forth herein, the
Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, may in its sole discretion make loans (each such loan, a “Swing Line
Loan”) to the Borrower in Dollars from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit; provided, however, that after giving effect to any Swing Line Loan, (i)
the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Revolving Commitment, and provided, further, that the Borrower shall not
use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.04, prepay under Section 2.05, and reborrow under this
Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such Lender’s
Applicable Percentage times the amount of such Swing Line Loan.


 


38









 





(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum principal amount of $500,000 and integral
multiples of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing
the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in
the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the
applicable conditions specified in Article V is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the Borrower.




(c) Refinancing of Swing Line Loans.




(i) The Swing Line Lender at any time in its sole discretion may request, on behalf of
the Borrower (which hereby irrevocably requests and authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Loan Notice
for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the conditions set forth in Section 5.02 (other than
the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the
Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. The
Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in immediately available funds (and the Administrative
Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan)
for the account of the Swing Line Lender at the Administrative Agent’s Office not later than
1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.




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


 


39









 






(iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.




(iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right that such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02. No such purchase or funding of
risk participations shall relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.




(d) Repayment of Participations.




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




(ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



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


 


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



2.05 Prepayments.



(a) Voluntary Prepayments.




(i) Revolving Loans. The Borrower may, upon notice from the Borrower to the
Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans,
in whole or in part without premium or penalty; provided that (A) such notice must
be received by the Administrative Agent not later than 11:00 a.m. (1) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment
of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the
entire principal amount thereof then outstanding); and (C) any prepayment of Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice,
and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice
is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section
3.05. Subject to Section 2.15, each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective Applicable Percentages.




(ii) Swing Line Loans. The Borrower may, upon notice to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall
be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal thereof then outstanding). Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.




(b) Mandatory Prepayments of Loans.




(i) Revolving Commitments. If for any reason the Total Revolving Outstandings
at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall
immediately prepay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full
of the Revolving Loans and the Swing Line Loans the Total Revolving Outstandings exceed the
Aggregate Revolving Commitments then in effect.




(ii) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.05(b) shall be applied to Revolving Loans and Swing Line
Loans and (after all Revolving Loans and Swing Line Loans have been repaid) to Cash
Collateralize L/C Obligations.
Within the parameters of the applications set forth above, prepayments shall be applied
first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.05(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of prepayment.


 


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2.06 Termination or Reduction of Aggregate Revolving Commitments.



(a) Optional Reductions. The Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the
Aggregate Revolving Commitments to an amount not less than the Outstanding Amount of Revolving
Loans, Swing Line Loans and L/C Obligations; provided that (i) any such notice shall be
received by the Administrative Agent not later than 12:00 noon five (5) Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount
of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall
not terminate or reduce (A) the Aggregate Revolving Commitments if, after giving effect thereto and
to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the
Aggregate Revolving Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto,
the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the
Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect thereto and to
any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the
Swing Line Sublimit.



(b) Mandatory Reductions. If after giving effect to any reduction or termination of
Revolving Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swing
Line Sublimit exceed the Aggregate Revolving Commitments at such time, the Letter of Credit
Sublimit or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the
amount of such excess.



(c) Notice. The Administrative Agent will promptly notify the Lenders of any
termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or the Aggregate
Revolving Commitments under this Section 2.06. Upon any reduction of the Aggregate
Revolving Commitments, the Revolving Commitment of each Lender shall be reduced by such Lender’s
Applicable Percentage of such reduction amount. All fees in respect of the Aggregate Revolving
Commitments accrued until the effective date of any termination of the Aggregate Revolving
Commitments shall be paid on the effective date of such termination.



2.07 Repayment of Loans.



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



(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date within one (1) Business Day of demand therefor by the Swing Line Lender and
(ii) the Maturity Date.



2.08 Interest.



(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable
Rate, (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the applicable borrowing
date at a rate per annum equal to the Base Rate plus the Applicable Rate.


 


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




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




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




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



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



2.09 Fees.




In addition to certain fees described in subsections (h) and (i) of Section 2.03:




(a) Commitment Fee. The Borrower shall pay to the Administrative Agent, for
the account of each Lender in accordance with its Applicable Percentage, a commitment fee
(the “Commitment Fee”) at a rate per annum equal to the product of (i) the
Applicable Rate times (ii) the actual daily amount by which the Aggregate Revolving
Commitments exceed the sum of (y) the Outstanding Amount of Revolving Loans and (z) the
Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section
2.15. The Commitment Fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article V is not
met, and shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date to occur after the
Closing Date, and on the Revolving Loan Maturity Date; provided, that (A) no
Commitment Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender and (B) any Commitment Fee accrued with respect to
the Revolving Commitment of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable by the
Borrower so long as such Lender shall be a Defaulting Lender. The Commitment Fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect. For
purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes
of determining the unused portion of the Aggregate Revolving Commitments.




(b) Fee Letter. The Borrower shall pay to Bank of America and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and shall be
non-refundable for any reason whatsoever.


 


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2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.



(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by
reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided that any Loan that
is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.



(b) If, as a result of any restatement of or other adjustment to the financial statements of
Holdings or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated
Leverage Ratio as calculated by Holdings as of any applicable date was inaccurate and (ii) a proper
calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such
period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative
Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on
demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States,
automatically and without further action by the Administrative Agent, any Lender or the L/C
Issuer), an amount equal to the excess of the amount of interest and fees that should have been
paid for such period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as
the case may be, under Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under
Article IX. The Borrower’s obligations under this paragraph shall survive the termination
of the Commitments of all of the Lenders and the repayment of all other Obligations hereunder.



2.11 Evidence of Debt.



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


 


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



2.12 Payments Generally; Administrative Agent’s Clawback.



(a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly (and in any event within two (2) Business
Days) distribute to each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.
All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject
to the definition of “Interest Period”, if any payment to be made by the Borrower shall come due on
a day other than a Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case may be.




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent
may assume that such Lender has made such share available on such date in accordance with
Section 2.02 (or, in the case of any Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable Lender and
the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation and
(B) in the case of a payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall
promptly remit to the Borrower the amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative
Agent.


 


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(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer
hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation.




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



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



(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section 11.04(c) on
any date required hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under Section 11.04(c).



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



2.13 Sharing of Payments by Lenders.



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




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


 


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(ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in Section
2.14 or (z) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than an assignment to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall apply).



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



2.14 Cash Collateral.



(a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall,
in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
At any time that there shall exist a Defaulting Lender, immediately upon the request of the
Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after
giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting
Lender).



(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at the Administrative Agent. The Borrower, and to the extent provided by any Lender, such
Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit
of the Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender) and
agrees to maintain, a first priority security interest in all such cash, deposit accounts and all
balances therein, and all other property so provided as collateral pursuant hereto, and in all
balances therein, and all other property so provided as collateral pursuant hereto, and in all
proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be
applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant
Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the
Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.



(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.14 or Sections
2.03, 2.04, 2.05, 2.15 or 9.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied in satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided herein.


 


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(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable
Fronting Exposure or other obligations giving rise thereto (including by the termination of
Defaulting Lender status of the applicable Lender) or (ii) the Administrative Agent’s good faith
determination that there exists excess Cash Collateral; provided, however, (x) that
Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this
Section 2.14 may be otherwise applied in accordance with Section 9.03) and (y) the
Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree
that Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.



2.15 Defaulting Lenders.



(a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:




(i) Waivers and Amendment. The Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 11.01.




(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amount received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 11.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any
amounts owing by that Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by
that Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third, if
so determined by the Administrative Agent or requested by the L/C Issuer or Swing Line
Lender, to be held as Cash Collateral for future funding obligations of that Defaulting
Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as
the Borrower may request (so long as no Default or Event of Default exists), to the funding
of any Loan in respect of which that Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent;
fifth, if so determined by the Administrative Agent and the Borrower, to be held in
a non-interest bearing deposit account and released in order to satisfy obligations of that
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any
amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or
Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as a result of
any judgment of a court of competent jurisdiction obtained by the Borrower against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided, that, if (x) such payment is a
payment of the principal amount of any Loans or L/C Borrowings in respect of which that
Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C
Borrowings were made at a time when the conditions set forth in Section 5.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C
Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting
Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash
Collateral pursuant to this Section 2.15(a)(ii) shall be
deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably
consents hereto.


 


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(iii) Certain Fees. The Defaulting Lender (x) shall not be entitled to receive
any Commitment Fee pursuant to Section 2.09(a) for any period during which such
Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee
that otherwise would have been required to have been paid to such Defaulting Lender) and (y)
shall be limited in its right to receive Letter of Credit Fees as provided in Section
2.03(h).




(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender;
provided, that, (x) each such reallocation shall be given effect only if, at
the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default
exists; and (y) the aggregate obligation of each non-Defaulting Lender to acquire, refinance
or fund participations in Letters of Credit and Swing Line Loans shall not exceed the
positive difference, if any, of (1) the Commitment of that non-Defaulting Lender
minus (2) the aggregate Outstanding Amount of the Revolving Loans of that Lender.



(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determined to be necessary to cause the
Revolving Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro rata basis by the Lenders in accordance with their Applicable
Percentages (without giving effect to Section 2.15(a)(iv)), whereupon that Lender will
cease to be a Defaulting Lender; provided, that, no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; provided, further, that, except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising
from that Lender having been a Defaulting Lender.



2.16 Automatic Debit of Payments.



On each date when the payment of any principal, interest or fees are due hereunder or under
any Note, the Borrower agrees to maintain on deposit in an ordinary checking account maintained by
Borrower with the Administrative Agent (as such account shall be designated by the Borrower in a
written notice to the Administrative Agent from time to time, the “Borrower Account”) an
amount sufficient to pay such principal, interest or fees in full. The Borrower hereby authorizes
the Administrative Agent (i) to deduct automatically all principal, interest and fees when due
hereunder, or under any Note or Notes, from the Borrower Account, and (ii) if and to the extent any
payment under this Agreement or any other Loan Document is not made when due, to deduct
automatically any such amount from any or all of the accounts of the Borrower maintained with the
Administrative Agent. The Administrative Agent agrees to provide timely notice to the Borrower of
any automatic deduction made pursuant to this Section 2.16.


 


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ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.



(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any
other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require the Borrower
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted
in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case
may be, upon the basis of the information and documentation to be delivered pursuant to subsection
(e) below.



(ii) If the Borrower or the Administrative Agent shall be required by the Internal Revenue
Code to withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such
deductions as are determined by the Administrative Agent to be required based upon the information
and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent
shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in
accordance with the Internal Revenue Code, and (C) to the extent that the withholding or deduction
is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be
increased as necessary so that after any required withholding or the making of all required
deductions (including deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum
it would have received had no such withholding or deduction been made.



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



(c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Loan Parties shall, and do hereby, jointly and severally, indemnify the
Administrative Agent, each Lender and the L/C Issuer, and shall make payment in respect thereof
within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) withheld or deducted by the Borrower or the Administrative Agent paid
by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The Loan Parties shall also, and do hereby, jointly and severally,
indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A
certificate as to the amount of any such payment or liability delivered to the Borrower by a Lender
or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its
own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.


 


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(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and the L/C
Issuer shall, and does hereby, indemnify the Borrower and the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any
and all related losses, claims, liabilities, penalties, interest and expenses (including the fees,
charges and
disbursements of any counsel for the Borrower or the Administrative Agent) incurred by or
asserted against the Borrower or the Administrative Agent by any Governmental Authority as a result
of the failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result of
the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such
Lender or the L/C Issuer, as the case may be, to the Borrower or the Administrative Agent pursuant
to subsection (e). Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to
set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the
case may be, under this Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). The agreements in this clause (ii) shall survive the
resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the
replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all other Obligations.



(d) Evidence of Payments. Upon request by any Loan Party or the Administrative Agent,
as the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to
a Governmental Authority as provided in this Section 3.01, each Loan Party shall deliver to
the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may
be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or other evidence of
such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may
be.



(e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Documents are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.



(ii) Without limiting the generality of the foregoing, if the Borrower is resident for tax
purposes in the United States,




(A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower and the
Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable Laws or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative
Agent, as the case may be, to determine whether or not such Lender is subject to backup
withholding or information reporting requirements; and




(B) each Foreign Lender that is entitled under the Internal Revenue Code or any
applicable treaty to an exemption from or reduction of withholding tax with respect to
payments hereunder or under any other Loan Document shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the request of the Borrower or the Administrative Agent,
but only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:




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




(II) executed originals of Internal Revenue Service Form W-8ECI,


 


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(III) executed originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,




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




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



(iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed exemption or reduction,
and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-designation of its
Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower
or the Administrative Agent make any withholding or deduction for taxes from amounts payable to
such Lender.



(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts
pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Loan Party, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to
such Loan Party (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.


 


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3.02 Illegality.



If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or
charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar
Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended and (ii) if
such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the
interest rate on which is determined by reference to the Eurodollar Rate component of the Base
Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate
component of the Base Rate, in each case until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender
to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary
to avoid such illegality, be determined by the Administrative Agent without reference to the
Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and
(y) if such notice asserts the illegality of such Lender determining or charging interest rates
based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension
compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component
thereof until the Administrative Agent is advised in writing by such Lender that it is no longer
illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon
any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.



3.03 Inability to Determine Rates.



If the Required Lenders determine that for any reason in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (c) the
Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan does not adequately and fairly reflect the cost to the Lenders of funding such Loan, the
Administrative Agent will promptly notify the Borrower and all Lenders. Thereafter, (x) the
obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended and (y) in
the event of a determination described in the preceding sentence with respect to the Eurodollar
Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining
the Base Rate shall be suspended, in each case until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing,
conversion or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the amount specified
therein.



3.04 Increased Costs.



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




(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve
requirement reflected in the Eurodollar Rate) or the L/C Issuer;


 


53









 






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




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




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Loan the interest on which is determined by reference to the
Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the
cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter
of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C
Issuer hereunder (whether of principal, interest or any other amount) then, upon request of
such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such Lender or the L/C
Issuer, as the case may be, for such additional costs incurred or reduction suffered.



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



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



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


 


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3.05 Compensation for Losses.



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




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




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




(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
11.13;



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



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



3.06 Mitigation Obligations; Replacement of Lenders.



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



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrower may replace such
Lender in accordance with Section 11.13.


 


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3.07 Survival.



All of the Borrower’s obligations under this Article III shall survive termination of
the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation
of the Administrative Agent.



ARTICLE IV




GUARANTY




4.01 The Guaranty.




Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate
of a Lender that enters into a Swap Contract or a Treasury Management Agreement with a Loan Party,
and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the
prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment,
by acceleration, as a mandatory Cash Collateralization or otherwise), the Guarantors will, jointly
and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of the Obligations, the same will be promptly
paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as
a mandatory Cash Collateralization or otherwise) in accordance with the terms of such extension or
renewal.



Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to
the largest amount that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.



4.02 Obligations Unconditional.




The obligations of the Guarantors under Section 4.01 are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Loan Documents, Swap Contracts or Treasury Management Agreements, or any other
agreement or instrument referred to therein, or any substitution, release, impairment or exchange
of any other guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.02 that the obligations of the Guarantors
hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under this Article
IV until such time as the Obligations (other than contingent indemnification obligations that
survive the termination of this Agreement) have been paid in full and the Commitments have expired
or terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as
described above:




(a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;


 


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(b) any of the acts mentioned in any of the provisions of any of the Loan Documents,
any Swap Contract or Treasury Management Agreement between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan
Documents, such Swap Contracts or such Treasury Management Agreements shall be done or
omitted;




(c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents, any Swap Contract or Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents, such Swap Contracts or such Treasury
Management Agreements shall be waived or any other guarantee of any of the Obligations or
any security therefor shall be released, impaired or exchanged in whole or in part or
otherwise dealt with;




(d) any Lien granted to, or in favor of, the Administrative Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be perfected; or




(e) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, any Swap Contract or any Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements, or
against any other Person under any other guarantee of, or security for, any of the Obligations.



4.03 Reinstatement.



The obligations of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of any Person in
respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise,
and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender within
ten (10) days after written demand for all reasonable costs and expenses (including, without
limitation, the fees, charges and disbursements of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.



4.04 Certain Additional Waivers.



Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.


 


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4.05 Remedies.




The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be
deemed to have become automatically due and payable in the circumstances provided in said
Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due and payable), the
Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and
agree that their obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms
thereof.



4.06 Rights of Contribution.



The Guarantors agree among themselves that, in connection with payments made hereunder, each
Guarantor shall have contribution rights against the other Guarantors as permitted under applicable
law. Such contribution rights shall be subordinate and subject in right of payment to the
obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations (other than contingent indemnification obligations that
survive the termination of this Agreement) have been paid in full and the Commitments have
terminated.



4.07 Guarantee of Payment; Continuing Guarantee.



The guarantee in this Article IV is a guaranty of payment and not of collection, is a
continuing guarantee, and shall apply to all Obligations whenever arising.



ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




5.01 Conditions of Initial Credit Extension.



This Agreement shall become effective upon and the obligation of the L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:




(a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly executed by a
Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each
Lender.




(b) Opinions of Counsel. Receipt by the Administrative Agent of favorable
opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, dated as of the Closing Date, and in form and substance satisfactory to the
Administrative Agent.




(c) Financial Statements. The Administrative Agent shall have received the
unaudited consolidated financial statements of Holdings and its Subsidiaries for the fiscal
quarter ended June 30, 2010, including balance sheets and statements of income or
operations, shareholders’ equity and cash flows (the “Interim Financial
Statements”).


 


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(d) No Material Adverse Change. There shall not have occurred a material
adverse change since December 31, 2009 in the operations, business, assets, properties,
liabilities (actual or contingent) or condition (financial or otherwise) of Holdings and its
Subsidiaries, taken as a whole.




(e) Litigation. There shall not exist any action, suit, investigation or
proceeding pending or threatened in any court or before an arbitrator or Governmental
Authority that could reasonably be expected to have a Material Adverse Effect.




(f) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent of the following, each of which shall be originals or facsimiles (followed promptly by
originals), in form and substance satisfactory to the Administrative Agent and its legal
counsel:




(i) copies of the Organization Documents of each Loan Party certified to be
true and complete as of a recent date by the appropriate Governmental Authority of
the state or other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary of such Loan Party
to be true and correct as of the Closing Date;




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




(iii) such documents and certifications as the Administrative Agent may require
to evidence that each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business in its state of
organization or formation.




(g) Perfection and Priority of Liens. Receipt by the Administrative Agent of
the following:




(i) searches of Uniform Commercial Code filings in the jurisdiction of
formation of each Loan Party or where a filing would need to be made in order to
perfect the Administrative Agent’s security interest in the Collateral, copies of
the financing statements on file in such jurisdictions and evidence that no Liens
exist other than Permitted Liens;




(ii) UCC financing statements for each appropriate jurisdiction as is
necessary, in the Administrative Agent’s sole discretion, to perfect the
Administrative Agent’s security interest in the Collateral;




(iii) all certificates evidencing any certificated Equity Interests pledged to
the Administrative Agent pursuant to the Pledge Agreement, together with duly
executed in blank and undated stock powers attached thereto;




(iv) domestic searches of ownership of, and Liens on, intellectual property of
each Loan Party in the appropriate governmental offices;


 


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(v) duly executed notices of grant of security interest in the form required by
the Security Agreement as are necessary, in the Administrative Agent’s sole
discretion, to perfect the Administrative Agent’s security interest in the
intellectual property of the Loan Parties;




(vi) a certificate signed by a Responsible Officer of each Loan Party
certifying the accuracy and completeness of a list of the Proprietary Software and
Proprietary Databases which are material to the business of the Borrower and its
Subsidiaries taken as a whole; and




(vii) a certificate signed by a Responsible Officer of each Loan Party
certifying the accuracy and completeness in all material respects of an attached
electronic list of all Domain Names owned by the Loan Parties as of the Closing
Date.




(h) Evidence of Insurance. Receipt by the Administrative Agent of copies of
insurance policies or certificates of insurance of the Loan Parties evidencing liability and
casualty insurance meeting the requirements set forth in the Loan Documents, including, but
not limited to, naming the Administrative Agent as additional insured (in the case of
liability insurance) or Lender’s loss payee (in the case of hazard insurance) on behalf of
the holders of the Obligations.




(i) Third Party Consents. Receipt by the Administrative Agent of evidence
reasonably satisfactory to the Administrative Agent that the Loan Parties have obtained all
required consents and approvals of all Persons to the execution, delivery and performance of
the Loan Documents.




(j) Closing Certificate. Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of Holdings and the Borrower certifying that (i) the
conditions specified in Sections 5.01(d) and (e) and Sections
5.02(a) and (b) have been satisfied, (ii) all required consents and approvals of
all Persons to the execution, delivery and performance of the Loan Documents by the Loan
Parties have been obtained and (ii) Holdings and its Subsidiaries (after giving effect to
the transactions contemplated hereby and the incurrence of Indebtedness related thereto) are
Solvent on a consolidated basis.




(k) Termination of Existing Credit Agreement. Receipt by the Administrative
Agent of evidence that the Existing Credit Agreement has been, or concurrently with the
Closing Date is being, terminated, all Indebtedness under the Existing Credit Agreement is
being repaid and all financing statements and Liens securing obligations under the Existing
Credit Agreement or associated therewith concurrently with the Closing Date are being
released.




(l) Escrow Agreement. The parties thereto shall have executed and delivered to
the Administrative Agent, the Escrow Agreement in form and substance satisfactory to the
Administrative Agent.




(m) Fees. Receipt by the Administrative Agent and the Lenders of any fees
required to be paid on or before the Closing Date.




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


 


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(o) Other. Receipt by the Administrative Agent and the Lenders of such other
documents, instruments, agreements and information as requested by the Administrative Agent
or any Lender, including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or contingent), real estate
leases, material contracts, debt agreements, property ownership, environmental matters,
contingent liabilities and management of the Borrower and its Subsidiaries; such information
may include, if requested by the Administrative Agent, asset appraisal reports and written
audits of accounts receivable, inventory, payables, controls and systems.



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



5.02 Conditions to all Credit Extensions.



The obligation of each Lender to honor any Request for Credit Extension is subject to the
following conditions precedent:




(a) The representations and warranties of the Borrower and each other Loan Party
contained in Article VI or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith, shall be true
and correct in all material respects on and as of the date of such Credit Extension, except
to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct in all material respects as of such
earlier date, and except that for purposes of this Section 5.02, the representations
and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.01.




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




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



Each Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 5.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.


 


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ARTICLE VI




REPRESENTATIONS AND WARRANTIES





The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:



6.01 Existence, Qualification and Power.



Each Loan Party (a) is duly organized or formed, validly existing and in good standing (to the
extent such concept is applicable in the applicable jurisdiction) under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power and authority and
all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its
assets and carry on its business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) is duly qualified and is licensed and in good
standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in cases referred to
in (1) clause (b)(i), (2) clause (c) or (3) clause (a) solely with respect to the good standing of
Foreign Subsidiaries that are not Material Foreign Subsidiaries, each to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.



6.02 Authorization; No Contravention.



The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict in any material respect with or result in any material breach or contravention of, or the
creation of any material Lien under, or require any payment to be made under (i) any Contractual
Obligation to which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; (c) violate any
Law (including, without limitation, Regulation U or Regulation X issued by the FRB) or (d) result
in a limitation on any licenses, permits or other Governmental Approvals material to the business,
operations or properties of any Loan Party.



6.03 Governmental Authorization; Other Consents.



No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document other than (a) those that have already been obtained and are in full
force and effect and (b) filings to perfect the Liens created by the Collateral Documents.



6.04 Binding Effect.



Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
that is party thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting the enforceability of creditors’ rights generally or by equitable principles.



6.05 Financial Statements; No Material Adverse Effect.



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


 


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(b) The Interim Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present in all material respects the financial condition of Holdings and its Subsidiaries as
of the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments;
and (iii) show all material indebtedness and other liabilities, direct or contingent, of Holdings
and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.



(c) From the date of the Audited Financial Statements to and including the Closing Date, there
has been no Disposition by any Loan Party or any Subsidiary, or any Involuntary Disposition, of any
material part of the business or property of any Loan Party or any Subsidiary, and no purchase or
other acquisition by any of them of any business or property (including any Equity Interests of any
other Person) material to any Loan Party or any Subsidiary, in each case, which is not reflected in
the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.



(d) The financial statements delivered pursuant to Section 7.01(a) and (b)
have been prepared in accordance with GAAP (except as may otherwise be permitted under Section
7.01(a) and (b)) and present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated and consolidating financial condition and results of
operations and consolidated cash flows of Holdings and its Subsidiaries as of the dates thereof and
for the periods covered thereby.



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



6.06 Litigation.



There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Loan Parties after due and diligent investigation, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of
its Subsidiaries or against any of their properties or revenues (a) that purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions contemplated
hereby, (b) as to which there is a reasonable possibility of an adverse determination and that, if
determined adversely, could reasonably be expected to have a Material Adverse Effect or (c)
alleging that the use or operation by any Loan Party or any Subsidiary of any material IP Rights
infringes, violates or misappropriates the rights of any other Person or otherwise challenging any
Loan Party’s or any Subsidiary’s claim of ownership in or right to use any material IP Rights, any
Loan Party’s or any Subsidiary’s right to register any material IP Rights, or any Loan Party’s or
any Subsidiary’s right to keep and maintain such registration in full force and effect, except for
such allegations or challenges described in this clause (c) which, if determined adversely, could
not reasonably be expected to have a Material Adverse Effect.



6.07 No Default.



(a) Neither any Loan Party nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.




(b) No Loan Party is in breach of or default under any Material Contract.




(c) No Default or Event of Default has occurred and is continuing.


 


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6.08 Ownership of Property; Liens.



Each of Loan Party and its Subsidiaries has good record and marketable title in fee simple to,
or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of each Loan Party and its
Subsidiaries is subject to no Liens, other than Permitted Liens.



6.09 Environmental Compliance.



Except as could not reasonably be expected to have a Material Adverse Effect:




(a) Each of the Facilities and all operations at the Facilities are in compliance with
all applicable Environmental Laws, and there is no violation of any Environmental Law with
respect to the Facilities or the Businesses, and there are no conditions relating to the
Facilities or the Businesses that could give rise to liability under any applicable
Environmental Laws.




(b) None of the Facilities contains, or has previously contained, any Hazardous
Materials at, on or under the Facilities in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under, Environmental Laws.




(c) Neither any Loan Party nor any Subsidiary has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of any Loan Party have knowledge or reason to believe that
any such notice will be received or is being threatened.




(d) Hazardous Materials have not been transported or disposed of from the Facilities,
or generated, treated, stored or disposed of at, on or under any of the Facilities or any
other location, in each case by or on behalf of any Loan Party or any Subsidiary in
violation of, or in a manner that would be reasonably likely to give rise to liability
under, any applicable Environmental Law.




(e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Loan Parties, threatened, under any Environmental Law to which any Loan
Party or any Subsidiary is or will be named as a party, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect
to any Loan Party, any Subsidiary, the Facilities or the Businesses.




(f) There has been no release or threat of release of Hazardous Materials at or from
the Facilities, or arising from or related to the operations (including, without limitation,
disposal) of any Loan Party or any Subsidiary in connection with the Facilities or otherwise
in connection with the Businesses, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.


 


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6.10 Insurance.



The properties of the Loan Parties and their Subsidiaries are insured with financially sound
and reputable insurance companies not Affiliates of such Persons, in such amounts, with such
deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the applicable Loan Party or the applicable
Subsidiary operates. The insurance coverage of the Loan Parties and their Subsidiaries as in
effect on the Closing Date is outlined as to carrier, policy number, expiration date, type, amount
and deductibles on Schedule 6.10.



6.11 Taxes.



The Loan Parties and their Subsidiaries have filed all federal, state and other material tax
returns and reports required to be filed, and have paid all federal, state and other taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against any Loan Party or any Subsidiary
that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement with any Person that is not a Loan Party.



6.12 ERISA Compliance.



(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Internal Revenue Code and other federal or state laws. Each Pension Plan that is
intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service to the effect that the form of
such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been
determined by the Internal Revenue Service to be exempt from federal income tax under Section
501(a) of the Code or an application for such a letter is currently being processed by the Internal
Revenue Service. To the best knowledge of the Loan Parties, nothing has occurred that would
prevent, or cause the loss of, such tax-qualified status.



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



(c) No ERISA Event has occurred and neither the Borrower nor any ERISA Affiliate is aware of
any fact, event or circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any Pension Plan; (ii) the Borrower and each ERISA Affiliate has met
all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no
waiver of the minimum funding standards under the Pension Funding Rules has been applied for or
obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is sixty percent (60%) or
higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that
could reasonably be expected to cause the funding target attainment percentage for any such plan to
drop below sixty percent (60%) as of the most recent valuation date; (iv) neither the Borrower nor
any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums,
and there are no premium payments which have become due that are unpaid; (v) neither the Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or
Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator
thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably
be expected to cause the PGBC to institute proceedings under Title IV of ERISA to terminate any
Pension Plan.


 


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6.13 Subsidiaries.



Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of
each Subsidiary of any Loan Party, together with (i) jurisdiction of formation, (ii) number of
shares of each class of Equity Interests outstanding, (iii) number and percentage of outstanding
shares of each class owned (directly or indirectly) by any Loan Party or any Subsidiary and (iv)
number and effect, if exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding Equity Interests of
each Subsidiary of any Loan Party is validly issued, fully paid and non-assessable. As of the
Closing Date, no Subsidiary is a Material Foreign Subsidiary.



6.14 Margin Regulations; Investment Company Act.



(a) No Loan Party is engaged nor will it engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
Holdings and its Subsidiaries on a consolidated basis) subject to the provisions of Section
8.01 or Section 8.05 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 9.01(e) will be margin stock. No proceeds of
any Borrowing shall be used for the purpose or purchasing or carrying margin stock.



(b) None of any Loan Party, any Person Controlling any Loan Party, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



6.15 Disclosure.



Each Loan Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed to be reasonable at the
time.



6.16 Compliance with Laws.



Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b) the failure to
comply therewith could not reasonably be expected to have a Material Adverse Effect.


 


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6.17 Intellectual Property; Licenses, Etc.



(a) Each Loan Party and its Subsidiaries own, or possess the legal right to use, all of the IP
Rights that are reasonably necessary for the operation of their respective businesses. Set forth
on Part A of Schedule 6.17 is a list of all IP Rights registered or in respect of which an
application for registration has been filed or recorded with the United States Copyright Office or
the United States Patent and Trademark Office and owned by each Loan Party as of the Closing Date.
Except for such claims and infringements that could not reasonably be expected to have a Material
Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning
the use of any IP Rights or the validity or enforceability of any IP Rights, alleging any violation
of such Person’s privacy rights, nor does any Loan Party know of any such claim, and, to the
knowledge of the Loan Parties, the use of any IP Rights by any Loan Party or any of its
Subsidiaries or the granting of a right or a license in respect of any IP Rights from any Loan
Party or any of its Subsidiaries does not infringe, violate or misappropriate the rights of any
Person. As of the Closing Date, none of the Material IP Rights owned by any of the Loan Parties or
any of its Subsidiaries is subject to any licensing agreement (other than licenses to customers to
use the Proprietary Software and Proprietary Databases in the ordinary course of business) or
similar arrangement except as set forth on Part A of Schedule 6.17.



(b) Set forth on Part B of Schedule 6.17 is a complete list of all Material Domain
Names as of the Closing Date, including the domain name registrar and administrative contact with
respect to each such Material Domain Name and the date on which the Loan Parties’ registration of
each such Material Domain Name with each such domain name registrar is scheduled to expire. Each
Material Domain Name set forth on Part B of Schedule 6.17 is duly registered with the
domain name registrar set forth on Part B of Schedule 6.17 opposite such Material Domain
Name and has not been registered with any other domain name registrar. The Loan Parties own and
have good title to all their Material Domain Names and the use thereof or any Website thereon by
the Loan Parties does not infringe, violate or misappropriate the rights of any other Person in any
material respect. The Material Domain Names have been maintained and renewed in accordance in all
material respects with all applicable Laws and all applicable rules and procedures of each domain
name registrar and ICANN. The Loan Parties have taken commercially reasonable steps to protect
their rights and interests in and to their material Websites and Material Domain Names. To the
Loan Parties’ knowledge no Person has gained unauthorized access to any Website or data stored
thereon (including any customer data). To the Loan Parties’ knowledge the Websites, Proprietary
Databases and Proprietary Software which are material to the business of the Borrower and its
Subsidiaries taken as a whole are, in each case, materially free of all Malicious Code.



(c) There exists no equipment or hardware being used to operate any Website that is necessary
for the operation of the business of the Borrower and its Subsidiaries that is not (i) located at
the Borrower’s headquarters at 360 W 4800 N, Provo, Utah 84604 and/or located at other real
properties owned or leased by the Borrower and its Subsidiaries or (ii) maintained or hosted
pursuant to (A) the Co-Location Agreements and/or (B) any successor or other Website Agreement(s)
between a Loan Party or any Subsidiary on the one hand, and a service provider(s), on the other
hand, (x) that provide for substantially the same goods and services as the Co-Location Agreements
and (y) for which the Loan Parties have used commercially reasonable efforts to cause such service
provider(s) to execute and deliver a Website Consent Agreement with respect to such successor
Website Agreement(s).



(d) Set forth on Part C of Schedule 6.17 is a complete list of all Website Agreements
that are reasonably necessary for the operation of the business of the Borrower and its
Subsidiaries as of the Closing Date.



6.18 Solvency.



The Loan Parties are Solvent on a consolidated basis.


 


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6.19 Perfection of Security Interests in the Collateral.



The Collateral Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens are currently perfected
security interests and Liens, to the extent perfection may be accomplished by the filing of UCC
financing statements or any other action required under the Collateral Documents, prior to all
other Liens other than Permitted Liens.



6.20 Business Locations.



Set forth on Schedule 6.20(a) is a list of all real property located in the United
States that is owned or leased by the Loan Parties as of the Closing Date. Set forth on
Schedule 6.20(b) is the tax payer identification number and organizational identification
number of each Loan Party as of the Closing Date. The exact legal name and state of organization
of each Loan Party is as set forth on the signature pages hereto. Except as set forth on
Schedule 6.20(c), no Loan Party has during the five years preceding the Closing Date (i)
changed its legal name, (ii) changed its state of formation, or (iii) been party to a merger,
consolidation or other change in structure.



6.21 Labor Matters.



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



ARTICLE VII




AFFIRMATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Loan Parties shall and shall cause each Subsidiary to:



7.01 Financial Statements.



Deliver to the Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:




(a) upon the earlier of the date that is one hundred and five (105) days after the end
of each fiscal year of Holdings or the date such information is filed with the SEC, a
consolidated and consolidating balance sheet of Holdings and its Subsidiaries as at the end
of such fiscal year, and the related consolidated and consolidating statements of income or
operations and changes in consolidated shareholders’ equity and consolidated cash flows for
such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited
and accompanied by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit; and


 


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(b) upon the earlier of the date that is sixty (60) days after the end of each fiscal
quarter of each fiscal year of Holdings or the date such information is filed with the SEC,
a consolidated and consolidating balance sheet of Holdings and its Subsidiaries as at the
end of
such fiscal quarter, and the related consolidated and consolidating statements of
income or operations and consolidated cash flows for such fiscal quarter and for the portion
of Holdings’ fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and certified by
a Responsible Officer of Holdings as fairly presenting in all material respects the
financial condition, results of operations, shareholders’ equity and cash flows of Holdings
and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.



7.02 Certificates; Other Information.



Deliver to the Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:




(a) concurrently with the delivery of the financial statements referred to in
Section 7.01(a), a certificate of its independent certified public accountants
certifying such financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default or, if any such Default shall exist,
stating the nature and status of such event;




(b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of Holdings and the Borrower;




(c) within sixty (60) days after the end of each fiscal year of Holdings, beginning
with the fiscal year ending December 31, 2010, an annual business plan and budget of
Holdings and its Subsidiaries containing, among other things, pro forma financial statements
for each quarter of the next fiscal year;




(d) promptly after the same are available (and in any event within ten (10) days),
copies of each annual report, proxy or financial statement or other report or communication
sent to the equityholders of any Loan Party, and copies of all annual, regular, periodic and
special reports and registration statements which a Loan Party may file or be required to
file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto;




(e) concurrently with the delivery of the financial statements referred to in
Section 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower listing any written claim by a third party received by any Loan Party under the
Lanham Act, through a Uniform Domain Name Dispute Resolution Proceeding or court proceeding,
that a Loan Party or any Subsidiary does not own or have the right to use any Material
Domain Name or Material Domain Names.




(f) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of Holdings or the Borrower by
independent accountants in connection with the accounts or books of Holdings or any
Subsidiary, or any audit of any of them;


 


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(g) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the
terms
of any indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to Section 7.01 or any other clause of this
Section 7.02;




(h) promptly, and in any event within five (5) Business Days after receipt thereof by
any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of any Loan Party or any Subsidiary
thereof;




(i) promptly (and in any event within five (5) Business Days after request), such
additional information regarding the business, financial or corporate affairs of any Loan
Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably request;




(j) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower (i) listing (A) all applications by any Loan Party, if any, for Copyrights, Patents
or Trademarks made since the date of the prior certificate (or, in the case of the first
such certificate, the Closing Date), (B) all issuances of registrations or letters on
existing applications by any Loan Party for Copyrights, Patents and Trademarks received
since the date of the prior certificate (or, in the case of the first such certificate, the
Closing Date), (C) all Trademark Licenses, Copyright Licenses and Patent Licenses entered
into by any Loan Party since the date of the prior certificate (or, in the case of the first
such certificate, the Closing Date), (D) listing (x) all Material Domain Names as of such
date and (y) all Website Agreements that are reasonably necessary for the operation of the
business of the Borrower and its Subsidiaries entered into since the date of the prior
certificate (or, in the case of the first such certificate, the Closing Date) and (ii)
attaching the insurance binder or other evidence of insurance for any insurance coverage of
any Loan Party or any Subsidiary that was renewed, replaced or modified during the period
covered by such financial statements;




(k) on a semi-annual basis, concurrently with the delivery of the financial statements
referred to in Section 7.01(a) and (b) for the first and third fiscal
quarters of each fiscal year of Holdings, a certificate of a Responsible Officer of the
Borrower listing all Domain Names acquired since the date of the prior certificate (or, in
the case of the first such certificate, since the Closing Date); and




(l) concurrently with the delivery of the financial statements referred to in
Section 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower containing information regarding the amount of all Acquisitions that occurred
during the period covered by such financial statements, including identification of the
type(s) and amount of consideration paid for each such Acquisition.



Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02 (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 11.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent);
provided, that: (i) the Borrower shall deliver paper copies of such documents to
the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper
copies until a written request to cease delivering paper copies is given by the Administrative
Agent or such
Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. The Administrative Agent shall have no obligation to request the delivery of or to
maintain paper copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery by a
Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


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The Borrower and Holdings hereby acknowledge that (a) the Administrative Agent will make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf
of the Borrower and Holdings hereunder (collectively, the “Borrower Materials”) by posting
the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish
to receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Person’s securities. The Borrower and Holdings
hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall
be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower and Holdings shall be deemed to have authorized the Administrative Agent and the Lenders
to treat such Borrower Materials as not containing any material non-public information with respect
to the Borrower and/or Holdings or their respective securities for purposes of United States
federal and state securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth in Section
11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated as “Public Side Information;” and (z) the Administrative Agent
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform that is not designated as “Public Side Information.”



7.03 Notices.



(a) Promptly (and in any event, within two (2) Business Days after actual knowledge thereof by
a Responsible Officer of a Loan Party) notify the Administrative Agent and each Lender of the
occurrence of any Default or Event of Default.



(b) Promptly (and in any event, within five (5) Business Days after actual knowledge thereof
by a Responsible Officer of a Loan Party) notify the Administrative Agent and each Lender in
writing of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including without limitation, (i) breach or non-performance of, or any default
under, a Contractual Obligation of any Loan Party or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between any Loan Party or any Subsidiary and any
Governmental Authority; (iii) the commencement of, or any material development in, any litigation
or proceeding affecting any Loan Party or any Subsidiary, including pursuant to any applicable
Environmental Laws; and (iv) any cancellation, lapse, termination or transfer of any Material
Domain Name.



(c) Promptly (and in any event, within five (5) Business Days after actual knowledge thereof
by a Responsible Officer of a Loan Party) notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event.



(d) Promptly (and in any event, within five (5) Business Days after actual knowledge thereof
by a Responsible Officer of a Loan Party) notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by Holdings or any
Subsidiary, including any determination by the Borrower referred to in Section 2.10(b).


 


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(e) Promptly (and in any event within five (5) Business Days after actual knowledge thereof by
a Responsible Officer of a Loan Party), notify the Administrative Agent, in writing, of any action,
suit, proceeding, claim or dispute threatened in writing against or affecting any Loan Party (i) in
which the amount involved or relief sought is in excess of the Threshold Amount, (ii) which seeks
injunctive relief or (iii) which alleges criminal misconduct by any Loan Party.



(f) Promptly (and in any event within ten (10) Business Days after the occurrence thereof),
notify the Administrative Agent, in writing, of any attack that penetrates the Borrower’s firewalls
or other protective screens on ancestry.com, ancestry.co.uk, myfamily.com, and ancestry.ca by any
“viruses”, “worms”, “trojan horses”, “time bombs”, “back doors”, and other infections or harmful
routines which disrupt, disable, harm, distort or otherwise impede in any material adverse manner
the legitimate operation of such Website, or any other associated software, firmware, hardware,
computer system or network.



(g) Promptly (and in any event within ten (10) Business Days after actual knowledge thereof by
a Responsible Officer of a Loan Party), notify the Administrative Agent, in writing, of the outage
of any Loan Party’s entire internet operation for any of the following Websites: ancestry.com,
ancestry.co.uk, myfamily.com, and ancestry.ca for more than twenty-four hours except for scheduled
maintenance periods.



(h) Promptly (and in any event within ten (10) Business Days after actual knowledge thereof by
a Responsible Officer of a Loan Party), notify the Administrative Agent, in writing, of any loss,
damage or destruction to the Collateral in an aggregate amount of $1,000,000 or more, whether or
not covered by insurance.



(i) Immediately upon the occurrence of, upon becoming aware of, or upon receipt of notice from
a third party to any Loan Party of, (i) any Loan Party’s or any Subsidiary’s default pursuant to
the terms of any Material Contract or any lease of real property not constituting Excluded Property
to which such Loan Party is a party or (ii) the termination of, or the intent or threat to
terminate, any such Material Contract or lease, notify the Administrative Agent and each Lender in
writing of such default, termination or threat.



(j) Upon the reasonable written request of the Administrative Agent following the occurrence
of any event or the discovery of any condition which the Administrative Agent or the Required
Lenders believe has caused (or could be reasonably expected to cause) the representations and
warranties set forth in Section 6.09 to be untrue in any material respect, furnish or cause
to be furnished to the Administrative Agent, at the Loan Parties’ expense, a report of an
environmental assessment of reasonable scope, form and depth, (including, where appropriate,
invasive soil or groundwater sampling) by a consultant reasonably acceptable to the Administrative
Agent as to the nature and extent of the presence of any Materials of Environmental Concern on any
real property owned or leased by any Loan Party or any Subsidiary and as to the compliance by any
Loan Party or any of its Subsidiaries with Environmental Laws at such real properties. If the Loan
Parties fail to deliver such an environmental report within seventy-five (75) days after receipt of
such written request then the Administrative Agent may arrange for the same, and the Loan Parties
hereby grant to the Administrative Agent and its representatives access to the real properties to
undertake such an assessment (including, where appropriate, invasive soil or groundwater sampling).
The reasonable cost of any assessment arranged for by the Administrative Agent pursuant to this
provision will be payable by the Loan Parties on demand and added to the obligations secured by the
Collateral Documents.


 


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Each notice pursuant to this Section 7.03(a) through (j) shall be accompanied
by a statement of a Responsible Officer of each of Holdings and the Borrower setting forth details
of the occurrence referred to therein and stating what action the applicable Loan Party has taken
and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall
describe with particularity any and all provisions of this Agreement and any other Loan Document
that have been breached.



7.04 Payment of Obligations.



Pay and discharge, as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Loan Party or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property, other than Permitted Liens; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.



7.05 Preservation of Existence, Etc.




(a) Preserve, renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 8.04
or 8.05.



(b) Preserve, renew and maintain in full force and effect its good standing under the Laws of
the jurisdiction of its organization, except to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect.



(c) Take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises and other Governmental Approvals necessary in the normal conduct of its business, except
to the extent that the failure to do so could not reasonably be expected to have a Material Adverse
Effect.



(d) Preserve or renew all of its registered IP Rights or IP Rights in respect of which an
application for registration has been filed or recorded with the United States Copyright Office or
the United States Patent and Trademark Office, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.



7.06 Maintenance of Properties.



(a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted.



(b) Make all necessary repairs thereto and renewals and replacements thereof, except where the
failure to do so could not reasonably be expected to have a Material Adverse Effect.



(c) Use the standard of care typical in the industry in the operation and maintenance of its
facilities.


 


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7.07 Maintenance of Insurance.



Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, casualty insurance and business interruption insurance) with financially sound
and reputable insurance companies not Affiliates of any Loan Party, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning
similar properties in localities where the applicable Loan Party or the applicable Subsidiary
operates. The Administrative Agent shall be named as loss payee or mortgagee, as its interest may
appear, and/or additional insured with respect to any such insurance providing coverage in respect
of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the Administrative
Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any
such policy or policies shall be altered or canceled.



7.08 Compliance with Laws.



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



7.09 Books and Records.



(a) Maintain proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial transactions and matters
involving the assets and business of such Loan Party or such Subsidiary, as the case may be.



(b) Maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or
such Subsidiary, as the case may be.



7.10 Inspection Rights.



Permit representatives and independent contractors of the Administrative Agent and each Lender
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all at the expense of
the Borrower and at such reasonable times during normal business hours and as often as may be
desired, upon reasonable advance notice to the Borrower; provided, however, that
when an Event of Default exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.



7.11 Use of Proceeds.



Use the proceeds of the Credit Extensions (a) to finance Permitted Acquisitions and other
Investments permitted under Section 8.02, (b) to finance working capital and capital
expenditures and (c) for other general corporate purposes, provided that in no event shall
the proceeds of the Credit Extensions be used in contravention of any Law or of any Loan Document.


 


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7.12 Additional Subsidiaries.




Within thirty (30) days after the acquisition or formation of any Subsidiary:




(a) notify the Administrative Agent thereof in writing, together with the (i)
jurisdiction of formation, (ii) number of shares of each class of Equity Interests
outstanding, (iii) number and percentage of outstanding shares of each class owned (directly
or indirectly) by
Holdings or any Subsidiary and (iv) number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar rights with
respect thereto; and




(b) if such Subsidiary is a Domestic Subsidiary, cause such Person to (i) become a
Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or
such other documents as the Administrative Agent shall deem appropriate for such purpose,
and (ii) deliver to the Administrative Agent documents of the types referred to in
Sections 5.01(f) and (g) and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form, content and
scope reasonably satisfactory to the Administrative Agent.



7.13 ERISA Compliance.



Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law; (b) cause each Plan that is qualified under Section
401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412, Section 430 or Section 431 of the Internal
Revenue Code.



7.14 Pledged Assets.



(a) Equity Interests. Cause (a) 100% of the issued and outstanding Equity Interests
of each Domestic Subsidiary and (b) 65% (or such greater percentage that, due to a change in an
applicable Law after the date hereof, (1) could not reasonably be expected to cause the
undistributed earnings of such Material Foreign Subsidiary as determined for United States federal
income tax purposes to be treated as a deemed dividend to such Material Foreign Subsidiary’s United
States parent and (2) could not reasonably be expected to cause any material adverse tax
consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning
of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Material Foreign
Subsidiary directly owned by a Loan Party to be subject at all times to a first priority, perfected
Lien in favor of the Administrative Agent, for the benefit of the holders of the Obligations,
pursuant to the terms and conditions of the Collateral Documents, together with opinions of counsel
and any filings and deliveries necessary in connection therewith to perfect the security interests
therein, all in form and substance reasonably satisfactory to the Administrative Agent.



(b) Other Property. (i) Cause all of its owned and leased real and personal property
other than Excluded Property to be subject at all times to first priority, perfected and, in the
case of real property (whether leased or owned), title insured Liens in favor of the Administrative
Agent, for the benefit of the holders of the Obligations, to secure the Obligations pursuant to the
terms and conditions of the Collateral Documents or, with respect to any such property acquired
subsequent to the Closing Date, such other additional security documents as the Administrative
Agent shall reasonably request, subject in any case to Permitted Liens and (ii) deliver such other
documentation as the Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements, real estate title insurance
policies, surveys, environmental reports, landlord’s waivers, certified resolutions and other
organizational and authorizing documents of such Person, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the Administrative
Agent’s Liens thereunder) and other items of the types required to be delivered pursuant to
Section 5.01(g), all in form, content and scope reasonably satisfactory to the
Administrative Agent.


 


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7.15 Proprietary Databases; Proprietary Software.



(a) At the request of the Administrative Agent, deliver to the Administrative Agent schedules
(which shall be updated with such frequency as the Administrative Agent may reasonably require)
listing all Proprietary Databases and Proprietary Software that are material to the business of the
Borrower and its Subsidiaries taken as a whole (specifying, among other things, the most current
versions thereof).



(b) With the exception of the escrow agent under the Escrow Agreement and other than (i)
outsourcing to third parties in the ordinary course of business for development, manufacturing and
distribution products and (ii) licensing to customers in the ordinary course of business, not
permit any vendor or other third party to gain control over, or possession of, its most current
Proprietary Databases and Proprietary Software that are material to the business of the Borrower
and its Subsidiaries and maintain such Proprietary Databases and Proprietary Software at all times
in accordance with the Escrow Agreement.



(c) Cause the Proprietary Software and Proprietary Databases held by the escrow agent under
the Escrow Agreement to be updated no less frequently than quarterly and on each release of each
upgrade or new version, in each case accessible by commercially available applications not in an
encrypted format (or if encrypted, the encryption key and instructions or software to decrypt are
also provided).



(d) Cause the Proprietary Software and Proprietary Databases that are material to the business
of the Borrower and its Subsidiaries taken as a whole to at all times be held by the escrow agent
under the Escrow Agreement (including any replacement Escrow Agreement that is in form and
substance satisfactory to the Administrative Agent).



7.16 Maintenance of Websites and Domain Names.



(a) Take all actions customarily taken by companies engaged in the same or similar business to
maintain, preserve and protect their rights and interests and the rights and interests of the
Administrative Agent with respect to all material Websites and Material Domain Names of the Loan
Parties and their Subsidiaries, including, making all necessary filings, registrations and
applications with the appropriate domain name registrars and paying all fees, costs and expenses
associated therewith.



(b) Maintain in effect all Material Domain Name registrations with an ICANN-accredited domain
name registrar and not permit any such registrations to lapse or to be cancelled, abandoned or
terminated.



(c) Comply in all material respects with all obligations under the material Website Agreements
of the Loan Parties and their Subsidiaries, maintain in effect such material Website Agreements and
not consent to any material modification, supplement or waiver of any term or provision of any such
material Website Agreement.



(d) Upon entering into any Website Agreement that is reasonably necessary for the operation of
the businesses of the Loan Parties and their Subsidiaries, use commercially reasonable efforts to
deliver an executed Website Consent Agreement with respect to such Website Agreement.


 


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7.17 Post-Closing Matters.



(a) Intellectual Property Matters. No later than sixty (60) days after the Closing
Date (or in each case such later date as may be agreed by the Administrative Agent in its sole
discretion) file or cause
to be filed with the United States Patent and Trademark Office or the United States Copyright
Office, as applicable, such documentation as reasonably requested by the Administrative Agent so
that the applicable records correctly reflect the applicable Loan Party’s ownership of all patents,
trademarks and copyrights (or applications therefor) listed on Schedule 6.17.



(b) Insurance Matters. No later than thirty (30) days after the Closing Date (or such
later date as may be agreed by the Administrative Agent in its sole discretion), deliver to the
Administrative Agent copies of insurance endorsements naming the Administrative Agent as additional
insured (in the case of liability insurance) or Lender’s loss payee (in the case of hazard
insurance) on behalf of the holders of the Obligations.



(c) Website Consent Agreements. No later than sixty (60) days after the Closing Date,
use commercially reasonable efforts to deliver an executed Website Consent Agreement with respect
to each Co-Location Agreement and each Website Agreement listed on Part C of Schedule 6.17.



ARTICLE VIII




NEGATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:



8.01 Liens.



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




(a) Liens pursuant to any Loan Document;




(b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased, (iii) the direct
or any contingent obligor with respect thereto is not changed, and (iv) any renewal or
extension of the obligations secured or benefited thereby is permitted by Section
8.03(b);




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




(d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;




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


 


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




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




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




(i) Liens securing purchase money Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not
exceed the cost (negotiated on an arm’s length basis) of the property being acquired on the
date of acquisition and (iii) such Liens attach to such property concurrently with or within
ninety days after the acquisition thereof;




(j) (i) licenses of intellectual property described in clause (g) of the definition of
“Disposition” and (ii) leases or subleases granted to others not interfering in any material
respect with the business of any Loan Party or any of its Subsidiaries;




(i) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Agreement;




(j) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;




(k) normal and customary rights of setoff upon deposits of cash in favor of banks or
other depository institutions;




(l) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;




(m) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under
Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses;




(q) Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered
pursuant to Section 2.14(a);




(r) Liens arising under conditional sale, title retention, consignment or similar
arrangements for the sale of goods in the ordinary course of business; and




(s) Liens on insurance proceeds securing the payment of financed insurance premiums.


 


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8.02 Investments.




Make any Investments, except:




(a) Investments held by the Borrower or such Subsidiary in the form of cash or Cash
Equivalents;




(b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




(c) Investments in any Person that is a Loan Party prior to giving effect to such
Investment;




(d) Investments by any Subsidiary of Holdings that is not a Loan Party in any other
Subsidiary of Holdings that is not a Loan Party;




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




(f) Guarantees permitted by Section 8.03;




(g) Permitted Acquisitions;




(h) the Pending Acquisition;




(i) Investments consisting of stock, obligations, securities or other property, in each
case received in settlement of accounts receivable (such accounts receivable created in the
ordinary course of business) from bankrupt obligors;




(j) Investments in Swap Contracts; provided that (i) such Investments are (or
were) entered into by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or taking a “market
view;” and (ii) such Swap Contract does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding transactions to the
defaulting party;




(k) Investments consisting of Dispositions permitted by Section 8.05;




(l) loans to employees, directors, officers and third parties not to exceed $2,000,000
in the aggregate at any time outstanding;




(m) Investments (i) reasonably received in satisfaction or partial satisfaction of
accounts from financially troubled account debtors (whether in connection with a
foreclosure, bankruptcy, workout or otherwise) and (ii) consisting of deposits, prepayments
and other credits to suppliers made in the ordinary course of business consistent with the
reasonable past practices of the Borrower and its Subsidiaries;


 


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(n) the Loan Parties and their Subsidiaries may (i) endorse negotiable instruments held
for collection in the ordinary course of business or (ii) make lease, utility and other
similar deposits in the ordinary course of business;




(o) Investments to the extent such Investments constitute an increase in the value of
Investments already made and otherwise permitted hereunder;




(p) Investments by the Loan Parties in Foreign Subsidiaries and in Beijing Generations
Internet Information Services Co., Ltd.; provided, that, (i) in no event
shall the sum of all Investments made by the Loan Parties pursuant to this clause (p) during
any fiscal year of Holdings plus the aggregate amount of all Guarantees by the Loan
Parties made pursuant to Section 8.03(i) during any fiscal year of Holdings exceed
$30,000,000 in the aggregate (it being understood and agreed that as any Guarantee by the
Loan Parties made pursuant to Section 8.03(i) in a fiscal year lapses or otherwise
terminates during such fiscal year, the Loan Parties may make additional Guarantees pursuant
to Section 8.03(i) during such fiscal year and additional Investments pursuant to
this clause (p) in such fiscal year in an aggregate amount not to exceed the amount of such
lapsed or terminated Guarantee, subject at all times to the limitations set forth in
Sections 8.02(p)(ii) and 8.03(i)(ii)) and (ii) in no event shall the
aggregate outstanding amount of all Investments made by the Loan Parties pursuant to this
clause (p) plus the aggregate outstanding amount of all Guarantees by the Loan
Parties made pursuant to Section 8.03(i) exceed $60,000,000 in the aggregate at any
one time outstanding;




(q) Investments consisting of non-cash advances deemed to occur in connection with the
exercise of stock options by employees of Holdings and its Subsidiaries;




(r) Permitted Genealogical Data Acquisitions;




(s) Investments held by the Borrower or such Subsidiary in the form of (i) obligations
maturing not more than one year after such time issued or guaranteed by the government of a
country (“OECD Country”) which is a member of the Organization for Economic
Cooperation and Development or any agency thereof that is rated at least A by S&P or A by
Moody’s, (ii) time deposits and certificates of deposit of (A) any commercial banking
institution that is a member of the Federal Reserve System or an applicable central bank of
an OECD Country and has a combined capital and surplus and undivided profits of not less
than $500,000,000 (or the equivalent thereof in the foreign currency of such OECD country)
or (B) any OECD Country bank whose short-term commercial paper rating from S&P is at least
A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any
such bank being an “Approved Foreign Bank”), in each case with maturities of not
more than 270 days from the date of acquisition, (iii) securities issued or directly and
fully guaranteed or insured by the any OECD Country or any instrumentality or agency thereof
(provided that the full faith and credit of such OECD Country is pledged in support thereof)
having maturities of not more than twelve months from the date of acquisition and rated
either (A) at least A by S&P or A by Moody’s or (B) at least SP1 by S&P or V-MIG 1 by
Moody’s and (iv) securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of any OECD Country, by
any political subdivision or taxing authority of any such state, commonwealth or territory,
the securities of which state, commonwealth, territory, political subdivision or taxing
authority (as the case may be) are rated either (A) at least A by S&P or A by Moody’s or (B)
at least SP1 by S&P or V-MIG 1 by Moody’s; and




(t) other Investments not contemplated in the foregoing clauses of this Section
8.02 in an aggregate principal amount not to exceed $5,000,000 at any time outstanding.


 


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8.03 Indebtedness.



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




(a) Indebtedness under the Loan Documents;




(b) Indebtedness of the Borrower and its Subsidiaries set forth in Schedule 8.03;




(c) intercompany Indebtedness permitted under Section 8.02;




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




(e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance
the purchase of fixed assets, and renewals, refinancings and extensions thereof,
provided that (i) the total of all such purchase money Indebtedness for all such
Persons taken together plus the aggregate outstanding principal amount of the
unsecured Indebtedness permitted by Section 8.03(h) shall not exceed an aggregate
principal amount of $10,000,000 at any one time outstanding; (ii) such purchase money
Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and
(iii) no such purchase money Indebtedness shall be refinanced for a principal amount in
excess of the principal balance outstanding thereon at the time of such refinancing;




(f) Indebtedness reasonably incurred by a Loan Party (other than Holdings) or a
Subsidiary arising from agreements providing for indemnification, escrows, adjustment of
purchase price or similar obligations of such Loan Party or such Subsidiary, as the case may
be, or from guarantees or letters of credit, surety bonds or performance bonds securing the
performance of such Loan Party or such Subsidiary, as the case may be, pursuant to
agreements in connection with Permitted Acquisitions by such Loan Party or such Subsidiary
or Dispositions permitted under Section 8.05 by such Loan Party or such Subsidiary
of any business, assets or Subsidiary, in each case solely to the extent permitted
hereunder;




(g) Indebtedness which may be deemed to exist pursuant to any guaranties, performance,
surety, statutory, appeal, completion guarantees, export or import indemnities, customs and
revenue bonds or similar instruments, workers’ compensation claims, self-insurance
obligations and bankers acceptances issued for the account of any Loan Party or any
Subsidiary in the ordinary course of business, including guarantees or obligations of any
Loan Party or any Subsidiary with respect to letters of credit supporting such bid,
performance or surety bonds, workers’ compensation claims, self-insurance obligations and
bankers acceptances (in each case other than for an obligation for money borrowed) or
similar obligations incurred in the ordinary course of business;


 


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(h) other unsecured Indebtedness of the Borrower or any of its Subsidiaries not
contemplated in the foregoing clauses of this Section 8.03; provided,
that, the aggregate
outstanding principal amount of such unsecured Indebtedness permitted by this
Section 8.03(h) plus the aggregate outstanding principal amount of purchase
money Indebtedness permitted by Section 8.03(e) shall not exceed $10,000,000 at any
time outstanding;




(i) Guarantees by the Loan Parties of unsecured Indebtedness or other obligations of
Foreign Subsidiaries under agreements providing for the purchase or licensing of
genealogical or historical data by such Foreign Subsidiaries; provided,
that, (i) in no event shall the aggregate amount of all such Guarantees made during
any fiscal year of Holdings plus the aggregate amount of Investments by the Loan
Parties made pursuant to Section 8.02(p) during any fiscal year of Holdings exceed
$30,000,000 in the aggregate (it being understood and agreed that as any Guarantee by the
Loan Parties made pursuant to this clause (i) in a fiscal year lapses or otherwise
terminates during such fiscal year, the Loan Parties may make additional Guarantees pursuant
to this clause (i) during such fiscal year and additional Investments pursuant to
Section 8.02(p) in such fiscal year in an aggregate amount not to exceed the amount
of such lapsed or terminated Guarantee, subject at all times to the limitations set forth in
Sections 8.02(p)(ii) and 8.03(i)(ii)) and (ii) in no event shall the
aggregate outstanding amount of all such Guarantees plus the aggregate outstanding
amount of all Investments by the Loan Parties made pursuant to Section 8.02(p)
exceed $60,000,000 in the aggregate at any one time outstanding; and




(j) Guarantees with respect to Indebtedness permitted under clauses (a) through (h) of
this Section 8.03 in an amount not to exceed $10,000,000 in the aggregate at any one
time outstanding.



8.04 Fundamental Changes.



Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person; provided that, notwithstanding
the foregoing provisions of this Section 8.04 but subject to the terms of Sections
7.12 and 7.14, (a) any Loan Party other than Holdings may merge or consolidate with any
other Loan Party other than Holdings; provided, that, if such transaction involves the Borrower,
the Borrower is the surviving entity, (b) the Borrower may merge or consolidate with any of its
Subsidiaries provided that the Borrower shall be the continuing or surviving corporation, (c) any
Foreign Subsidiary may be merged or consolidated with or into any Loan Party other than Holdings
provided that such Loan Party shall be the continuing or surviving entity, (d) any Foreign
Subsidiary may be merged or consolidated with or into any other Foreign Subsidiary, (e) any foreign
joint venture (that is not a Foreign Subsidiary) in which a Foreign Subsidiary is a joint venturer
may be merged or consolidated with or into any Foreign Subsidiary provided that such Foreign
Subsidiary shall be the continuing or surviving entity and (f) any Loan Party or any Subsidiary may
make a Disposition permitted by Section 8.05.



8.05 Dispositions.



Make any Disposition unless (i) with respect to any Disposition or series of related
Dispositions of assets having an aggregate fair market value of greater than $3,000,000, at least
75% of the consideration paid in connection therewith shall be cash or Cash Equivalents paid
contemporaneous with consummation of the transaction and shall be in an amount not less than the
fair market value of the property disposed of, (ii) such transaction does not involve the sale or
other disposition of a minority equity interest in any Subsidiary, (iii) such transaction does not
involve a sale or other disposition of receivables other than receivables owned by or attributable
to other property concurrently being disposed of in a transaction otherwise permitted under this
Section 8.05, (iv) no Default or Event of Default has occurred and is continuing, and (v)
the aggregate net book value of all of the assets sold or otherwise disposed of by Holdings and its
Subsidiaries in all such transactions occurring during any fiscal year shall not exceed an
aggregate amount equal to 10% of
Consolidated Tangible Net Worth for the most recent year for which the Borrower was required
to deliver financial statements pursuant to Section 7.01(a).


 


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8.06 Restricted Payments.



Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:




(a) each Subsidiary may make Restricted Payments to the Borrower;




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




(c) the Borrower may make dividend payments or distributions to Holdings, in an amount
sufficient to permit Holdings to pay any federal, state and local income taxes required to
be paid by it (provided that the amount of such payments in any fiscal year does not
exceed the amount that the Borrower and its Subsidiaries would be required to pay in respect
of such taxes for such fiscal year were the Borrower and its Subsidiaries to pay such taxes
as a stand-alone taxpayer filing a consolidated tax return) so long as both before and upon
giving effect to the payment of such Restricted Payment on a Pro Forma Basis (i) no Default
or Event of Default exists or would result therefrom, and (ii) the Loan Parties are in
compliance with the financial covenants set forth in Section 8.11 as of the most
recent fiscal quarter for which the Borrower was required to deliver financial statements
pursuant to Section 7.01(a) or (b); and




(d) the Borrower may make dividend payments to Holdings and Holdings may in turn use
such proceeds to repurchase or redeem Equity Interests of Holdings; provided,
that, (i) no Default or Event of Default exists immediately prior to and after
giving effect thereto, (ii) after giving effect to any such Restricted Payment on a Pro
Forma Basis, the Consolidated Leverage Ratio is less than or equal to 1.0:1.0 as of the most
recent fiscal period end for which the Borrower was required to deliver financial statements
pursuant to Section 7.01(a) or (b) and (iii) immediately after giving effect
to such Restricted Payment, the Loan Parties shall have cash and Cash Equivalents and
availability under the Aggregate Revolving Commitments of at least $30,000,000.



8.07 Change in Nature of Business.



Engage in any material line of business substantially different from those lines of business
conducted by the Borrower and its Subsidiaries on the Closing Date or any business substantially
related or incidental thereto.



8.08 Transactions with Affiliates and Insiders.



Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) advances of working capital to any Loan Party,
(b) transfers of cash and assets to any Loan Party, (c) transactions with any officer, director or
Affiliate expressly permitted by Section 8.02, Section 8.03, Section 8.04,
Section 8.05 or Section 8.06, (d) normal and reasonable compensation and
reimbursement of expenses of officers and directors in the ordinary course of business and (e)
except as otherwise specifically limited in this Agreement, other transactions which are entered
into in the ordinary course of such Person’s business on terms and conditions substantially as
favorable to such Person as would be obtainable by it in a comparable arms-length transaction with
a Person other than an officer, director or Affiliate.


 


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8.09 Burdensome Agreements.



(a) Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts on
the ability of any such Person to (i) pay dividends or make any other distributions to any Loan
Party on its Equity Interests or with respect to any other interest or participation in, or
measured by, its profits, (ii) pay any Indebtedness or other obligation owed to any Loan Party,
(iii) make loans or advances to any Loan Party, (iv) sell, lease or transfer any of its property to
any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof,
except (in respect of any of the matters referred to in clauses (i)-(iv) above) for (1) this
Agreement and the other Loan Documents, (2) any document or instrument governing Indebtedness
incurred pursuant to Section 8.03(e), provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in connection therewith, (3)
any Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets subject to such
Permitted Lien or (4) customary restrictions and conditions contained in any agreement relating to
the sale of any property permitted under Section 8.05 pending the consummation of such
sale.



(b) Enter into, or permit to exist, any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its property in favor of the Administrative Agent
(for the benefit of the holders of the Obligations) for the purpose of securing the Obligations,
whether now owned or hereafter acquired, or requiring the grant of any security for any obligation
if such property is given as security for the Obligations, except (i) any document or instrument
governing Indebtedness incurred pursuant to Section 8.03(e), provided that any such
restriction contained therein relates only to the asset or assets constructed or acquired in
connection therewith, (ii) in connection with any Permitted Lien or any document or instrument
governing any Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien, and (iii) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of any property
permitted under Section 8.05, pending the consummation of such sale.



8.10 Use of Proceeds.



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



8.11 Financial Covenants.



(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end
of any fiscal quarter of Holdings to be greater than 1.50 to 1.0.



(b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio as of the end of any fiscal quarter of Holdings to be less than (i) for any fiscal
quarter ending during the period from the Closing Date to and including September 30, 2011, 1.35 to
1.0 and (ii) for any fiscal quarter ending thereafter, 1.50 to 1.0.


 


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8.12 Prepayment of Other Indebtedness, Etc.



(a) Make (or give any notice with respect thereto) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Indebtedness (including without limitation
any Subordinated Indebtedness) of any Loan Party or any Subsidiary (other than (i) Indebtedness
arising under the Loan Documents and (ii) Indebtedness assumed in connection with a Closed
Acquisition, the Pending Acquisition, a Permitted Genealogical Data Acquisition, a Permitted
Acquisition or Indebtedness incurred in connection with the purchase of genealogical or historical
content or data, in each case, as consideration for such Acquisition or purchase).



(b) Pay any management, consulting or other similar fee to any Person or pay any extraordinary
salary, bonus or other form of compensation to any Person who is directly or indirectly a
significant partner, shareholder or owner (excluding management) of any such Person.



8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.




(a) Amend, modify or change its Organization Documents in a manner adverse to the Lenders.




(b) Change its fiscal year.



(c) Without providing ten (10) days prior written notice to the Administrative Agent, change
its name, state of formation or form of organization.



(d) Make any change to the Borrower’s chief executive officer or chief financial officer
without, in each case, procuring a replacement satisfactory to the Borrower’s board of director’s
within two hundred and seventy (270) days.



8.14 Ownership of Subsidiaries.



Notwithstanding any other provisions of this Agreement to the contrary, (i) permit any Person
(other than any Loan Party or any Wholly Owned Subsidiary of the Borrower) to own any Equity
Interests of any Domestic Subsidiary of any Loan Party, (ii) permit any Loan Party or any
Subsidiary of any Loan Party to issue or have outstanding any shares of preferred Equity Interests
or (iii) create, incur, assume or suffer to exist any Lien on any Equity Interests of any
Subsidiary of any Loan Party, except for Permitted Liens.



8.15 Sale Leasebacks.



Enter into any Sale and Leaseback Transaction.



8.16 Amendments of Certain Agreements.



Amend, modify or change (or permit the amendment, modification or change of) any of the terms
or provisions of any Subordinated Indebtedness Document of any Loan Party or any Subsidiary in a
manner adverse to the Lenders.


 


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8.17 Limitations on Holdings.



Permit Holdings to, directly or indirectly, (i) other than with respect to its own equity
interests and ministerial activities related thereto, enter into or permit to exist any transaction
or agreement (including any agreement for the incurrence or assumption of Indebtedness, other than
this Agreement,
any purchase, sale, lease or exchange of any property or the rendering of any service),
between itself and any other Person, (ii) engage in any business or conduct any activity (including
the making of any Investment or payment other than payments permitted hereunder with respect to its
own Equity Interests) or transfer any of its assets, other than Investments in the Borrower and the
performance of ministerial activities and payment of taxes and administrative fees and the
establishment and maintenance of an equity based compensation plan with respect to Holdings and its
Subsidiaries or (iii) consolidate or merge with or into any other Person. Holdings shall have no
direct Subsidiaries other than (x) the Borrower and (y) any direct Subsidiary of Holdings formed
solely for purposes of consummating a Permitted Acquisition that either (A) is made a direct
Subsidiary of the Borrower no later than one (1) Business Day after consummation of such Permitted
Acquisition or (B) is dissolved no later than one (1) Business Day after determination by the
Borrower in its reasonable business judgment that such Permitted Acquisition shall not occur. So
long as any such direct Subsidiary of Holdings described in clause (y) of the immediately preceding
sentence remains a direct Subsidiary of Holdings and not a direct Subsidiary of the Borrower, such
Subsidiary shall not engage in any business, hold any assets, conduct any activity (other than the
execution of agreements in connection with such Permitted Acquisition) or hold any liabilities
(contingent or otherwise).



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




9.01 Events of Default.




Any of the following shall constitute an Event of Default:




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




(b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02, 7.03,
7.05, 7.10, 7.11, 7.12, 7.14, or 7.15 or
Article VIII or




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




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




(e) Cross-Default. (i) Any Loan Party or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to


 


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any such
Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event is to cause,
or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries
of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically
or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be
made, prior to its stated maturity, or such Guarantee to become payable or Cash Collateral
in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party
(as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or




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




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




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




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


 


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




(k) Subordinated Indebtedness. (i) There shall occur a “Default” (or any
comparable term) or an “Event of Default” (or any comparable term) under any of the
Subordinated Indebtedness Documents, (ii) any of the Obligations for any reason shall cease
to be “Senior Debt” (or any comparable term) under, and as defined in, any Subordinated
Indebtedness Document(s) or (iii) the subordination provisions of any of the Subordinated
Indebtedness Documents shall, in whole or in part, terminate, cease to be effective or cease
to be legally valid, binding and enforceable against any holder of the Subordinated
Indebtedness; or




(l) Governmental Approvals. A state or federal regulatory agency shall have
revoked any Governmental Approvals to the extent that such revocation would reasonably be
expected to have a Material Adverse Effect, regardless of whether such Governmental Approval
was held by or originally issued for the benefit of the Borrower or a Subsidiary; or




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



9.02 Remedies Upon Event of Default.



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




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




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




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




(d) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents;



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


 


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9.03 Application of Funds.



After the exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 9.02), any
amounts received on account of the Obligations shall be applied by the Administrative Agent in the
following order:




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




Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuer) arising under the Loan Documents and
amounts payable under Article III, ratably among them in proportion to the
respective amounts described in this clause Second payable to them;




Third, to payment of that portion of the Obligations constituting accrued and
unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums
and scheduled periodic payments, and any interest accrued thereon, due under any Swap
Contract between any Loan Party and any Lender, or any Affiliate of a Lender, to the extent
such Swap Contract is permitted by Section 8.03(d), ratably among the Lenders (and,
in the case of such Swap Contracts, Affiliates of Lenders) and the L/C Issuer in proportion
to the respective amounts described in this clause Third held by them;




Fourth, to (a) payment of that portion of the Obligations constituting accrued
and unpaid principal of the Loans and L/C Borrowings, (b) payment of breakage, termination
or other payments, and any interest accrued thereon, due under any Swap Contract between any
Loan Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by Section 8.03(d), (c) payments of amounts due under any Treasury
Management Agreement between any Loan Party and any Lender, or any Affiliate of a Lender and
(d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit, ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) and the L/C Issuer in proportion to the respective amounts
described in this clause Fourth held by them; and




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



Subject to Section 2.03(c) and 2.14, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.


 


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ARTICLE X




ADMINISTRATIVE AGENT




10.01 Appointment and Authority.



(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor
any other Loan Party shall have rights as a third party beneficiary of any of such provisions.



(b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders and the L/C Issuer hereby irrevocably appoints and authorizes
the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties
to secure any of the Obligations, together with such powers and discretion as are incidental
thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents,
sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section
10.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the
direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this
Article X and Article XI (including Section 11.04(c), as though such
co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents)
as if set forth in full herein with respect thereto.



10.02 Rights as a Lender.



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



10.03 Exculpatory Provisions.



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




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




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


 


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



The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



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



10.04 Reliance by Administrative Agent.



The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Loan Parties), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



10.05 Delegation of Duties.



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


 


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10.06 Resignation of Administrative Agent.



The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Borrower to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrower and such successor. After the
retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 11.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



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



10.07 Non-Reliance on Administrative Agent and Other Lenders.



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


 


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10.08 No Other Duties; Etc.




Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



10.09 Administrative Agent May File Proofs of Claim.



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




(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than
obligations under Swap Contracts or Treasury Management Agreements to which the
Administrative Agent is not a party) that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 11.04) allowed in such judicial proceeding; and




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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.



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


 


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10.10 Collateral and Guaranty Matters.



Each of the Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its
option and in its discretion,




(a) to release any Lien on any Collateral granted to or held by the Administrative
Agent under any Loan Document (i) upon termination of the Aggregate Revolving Commitments
and payment in full of all Obligations under the Loan Documents (other than contingent
indemnification obligations) and the expiration or termination of all Letters of Credit
(other than Letters of Credit as to which other arrangements satisfactory to the
Administrative Agent and the L/C Issuer shall have been made), (ii) that is transferred or
to be transferred as part of or in connection with any Disposition permitted hereunder or
under any other Loan Document or any Involuntary Disposition, or (iii) as approved in
accordance with Section 11.01;




(b) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 8.01(i); and




(c) to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.




Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its obligations
under the Guaranty, pursuant to this Section 10.10.



ARTICLE XI




MISCELLANEOUS




11.01 Amendments, Etc.




No amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, further, that




(a) no such amendment, waiver or consent shall:




(i) extend or increase the Commitment of a Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such
Lender whose Commitment is being extended or increased (it being understood and
agreed that a waiver of any condition precedent set forth in Section 5.02 or
of any Default or a mandatory reduction in Commitments is not considered an
extension or increase in Commitments of any Lender);




(ii) postpone any date fixed by this Agreement or any other Loan Document for
any payment of principal (excluding mandatory prepayments), interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction
of the Commitments hereunder or under any other Loan Document without the written
consent of each Lender entitled to receive such payment or whose Commitments are to
be reduced;




(iii) reduce the principal of, or the rate of interest specified herein on, any
Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this
Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender entitled to receive
such payment of principal, interest,
fees or other amounts; provided, however, that only the consent
of the Required Lenders shall be necessary to amend the definition of “Default Rate”
or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees
at the Default Rate;


 


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(iv) change any provision of this Section 11.01(a) or the definition of
“Required Lenders” without the written consent of each Lender directly affected
thereby;




(v) except in connection with a Disposition permitted under Section
8.05, release all or substantially all of the Collateral without the written
consent of each Lender directly affected thereby; or




(vi) release the Borrower or, except in connection with a merger or
consolidation permitted under Section 8.04 or a Disposition permitted under
Section 8.05, all or substantially all of the Guarantors without the written
consent of each Lender directly affected thereby, except to the extent the release
of any Guarantor is permitted pursuant to Section 10.10 (in which case such
release may be made by the Administrative Agent acting alone).




(b) unless also signed by the L/C Issuer, no amendment, waiver or consent shall affect
the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it;




(c) unless also signed by the Swing Line Lender, no amendment, waiver or consent shall
affect the rights or duties of the Swing Line Lender under this Agreement; and




(d) unless also signed by the Administrative Agent, no amendment, waiver or consent
shall affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document;



provided, however, that notwithstanding anything to the contrary herein, (i) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto, (ii) no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms
requires the consent of all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting
Lender may not be increased or extended without the consent of such Lender and (y) any waiver,
amendment or modification requiring the consent of all Lenders or each affected Lender that by its
terms affects any Defaulting Lender more adversely than other affected Lenders shall require the
consent of such Defaulting Lender, (iii) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous
consent provisions set forth herein and (iv) the Required Lenders shall determine whether or not to
allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding
and such determination shall be binding on all of the Lenders.


 


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11.02 Notices and Other Communications; Facsimile Copies.



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




(i) if to the Borrower or any other Loan Party, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 11.02; and




(ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on its
Administrative Questionnaire then in effect for the delivery of notices that may contain
material non-public information relating to the Borrower).



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



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



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



(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any


 


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of its
Related Parties (collectively, the “Agent Parties”) have any liability to
the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however, that
in no event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive damages (as opposed
to direct or actual damages).



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



(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Loan
Party even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof,
as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.



11.03 No Waiver; Cumulative Remedies; Enforcement.



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


 


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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in
accordance with Section 10.01 for the benefit of all the Lenders and the L/C Issuer;
provided, however, that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C
Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit
(solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under
the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with
Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing
proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Loan Party under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 10.01 and (ii) in addition to the
matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section
2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.



11.04 Expenses; Indemnity; and Damage Waiver.



(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable, documented
out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
documented, out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C
Issuer (including the fees, charges and disbursements of a primary counsel for the Administrative
Agent and the L/C Issuer, any special or local counsel to the Administrative Agent, the L/C Issuer
and the Lenders and one counsel for all the other Lenders), and shall pay all fees and time charges
for attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit; provided, that if the representation by one counsel to the Administrative
Agent and one counsel to all the Lenders would be inappropriate due to the existence of an actual
conflict between any Lender and another Lender, then the Loan Parties shall be required to
reimburse the reasonable documented fees, charges and disbursements of one counsel to any such
Lender with the conflict.



(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder or thereunder or
the consummation of the transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and


 


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



(c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.



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



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


 


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11.05 Payments Set Aside.



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



11.06 Successors and Assigns.



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



(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans (including for purposes of
this subsection (b), participations in L/C Obligations and Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


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(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 in the case of
an assignment of Revolving Loans unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single assignee (or to an assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;




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




(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided, that, the
Borrower shall be deemed to have consented to any such assignment unless it shall
object thereto by written notice to the Administrative Agent within ten (10)
Business Days after having received notice thereof;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender;




(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




(D) the consent of the Swing Line Lender (such consent not to unreasonably
withheld or delayed) shall be required for any assignment in respect of the
Revolving Commitment if such assignment is to a Person that is not a Lender with a
Revolving Commitment, an Affiliate of such Lender or an Approved Fund with respect
to such Lender.




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




(iv) No Assignment to Certain Persons. No such assignment shall be made (A) to
the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B) or (C) to a
natural person.


 


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(v) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount
sufficient, upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the Administrative Agent,
the applicable pro rata share of Loans previously requested but not funded by the Defaulting
Lender, to each of which the applicable assignee and assignor hereby irrevocably consent),
to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender
to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y)
acquire (and fund as appropriate) its full pro rata share of all Loans and participations in
Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.
Notwithstanding the foregoing, in the event that any assignment of rights and obligations of
any Defaulting Lender hereunder shall become effective under applicable Law without
compliance with the provisions of this paragraph, then the assignee of such interest shall
be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.



(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on
the Register information regarding the designation, and revocation of designation, of any Lender as
a Defaulting Lender. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.



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


 


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Agent, the other Lenders and the L/C Issuer shall
continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in clauses (i) through (vii) of the Section 11.01(a)
that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 11.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.13 as though it were a
Lender.



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



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



(g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days’ notice
to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor
L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by
the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C
Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the Lenders to make Base
Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of
the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing
Line Lender, (1) such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (2)
the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank
of America to effectively assume the obligations of Bank of America with respect to such Letters of
Credit.


 


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11.07 Treatment of Certain Information; Confidentiality.



Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives and to any direct or indirect contractual
counterparty (or such contractual counterparty’s professional advisor) under any Swap Contract
relating to Loans outstanding under this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to a Loan Party and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrower.



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



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



11.08 Set-off.



If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and
each of their respective Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document
and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit


 


104









 






or obligated on such indebtedness; provided, that,
in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all
amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section 2.15 and, pending such payment,
shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lender shall provide
promptly to the Administrative Agent a statement describing in reasonable detail the Obligations
owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each
Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.



11.09 Interest Rate Limitation.



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



11.10 Counterparts; Integration; Effectiveness.



This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.



11.11 Survival of Representations and Warranties.



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


 


105









 





11.12 Severability.



If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Without limiting the foregoing provisions of this Section 11.12, if and to the extent that
the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be
limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C
Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in
effect only to the extent not so limited.



11.13 Replacement of Lenders.



If (i) any Lender requests compensation under Section 3.04, (ii) the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, or (iii) a Lender (a “Non-Consenting
Lender”) does not consent to a proposed change, waiver, discharge or termination with respect
to any Loan Document that has been approved by the Required Lenders as provided in Section
11.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby
(as applicable) and, or (iv) any Lender is a Defaulting Lender, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 11.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:




(a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




(b) such Lender shall have received payment of an amount equal to one hundred percent
(100%) of the outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);




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




(d) such assignment does not conflict with applicable Laws; and




(e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund consents to the
proposed change, waiver, discharge or termination; provided that the failure by such
Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair
the validity of the removal of such Non-Consenting Lender and the mandatory assignment of
such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C
Obligations and Swing Line Loans pursuant to this Section 11.13 shall nevertheless
be effective without the execution by such Non-Consenting Lender of an Assignment and
Assumption.


 


106









 





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



11.14 Governing Law; Jurisdiction; Etc.




(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.



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



(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



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


 


107









 





11.15 Waiver of Right to Trial by Jury.



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



11.16 Electronic Execution of Assignments and Certain Other Documents.



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



11.17 USA Patriot Act.



Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act. The Borrower shall, promptly following a request by the Administrative
Agent or any Lender, provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the Act.


 


108









 





11.18 No Advisory or Fiduciary Relationship.



In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i)
the arranging and other services regarding this Agreement provided by the Administrative Agent and
Bank of America, are arm’s-length commercial transactions between the Borrower and its Affiliates,
on the one hand, and the Administrative Agent and Bank of America, on the other hand, (ii) the
Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts,
the terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (b)(i) the Administrative Agent and Bank of America each is and has been acting solely
as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is
not and will not be acting as an advisor, agent or fiduciary, for the Borrower or any of Affiliates
or any other Person and (ii) neither the Administrative Agent nor
Bank of America has any obligation to the Borrower or any of its Affiliates with respect to
the transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (c) the Administrative Agent and Bank of America and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrower and its Affiliates, and neither the Administrative Agent nor Bank of America
has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the
fullest extent permitted by law, the Borrower hereby waives and releases, any claims that it may
have against the Administrative Agent or Bank of America with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.



[SIGNATURE PAGES FOLLOW]



 


109









 





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



	 	 	 	 	 	 	 	 	 
	BORROWER:	 	ANCESTRY.COM OPERATIONS INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Howard Hochhauser	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Howard Hochhauser	 	 
	 

	 	 	 	Title:
	 	CFO	 	 
	 
	 	 	 	 	 	 	 	 
	HOLDINGS:	 	ANCESTRY.COM INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Howard Hochhauser	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Howard Hochhauser	 	 
	 

	 	 	 	Title:
	 	CFO	 	 
	 
	 	 	 	 	 	 	 	 
	GUARANTORS:	 	TGN SERVICES, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Howard Hochhauser	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Howard Hochhauser	 	 
	 

	 	 	 	Title:
	 	CFO	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	ADMINISTRATIVE AGENT:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Brenda H. Little	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Brenda H. Little	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	LENDERS:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as a Lender, Swing Line Lender and L/C Issuer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Tasneem A. Ebrahim	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Tasneem A. Ebrahim	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	ZIONS FIRST NATIONAL BANK,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jim Stanchfield	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jim Stanchfield	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	MORGAN STANLEY BANK,
N.A.	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Sherrese Clarke	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Sherrese Clarke	 	 
	 

	 	 	 	Title:
	 	Authorized Signatory	 	 





 


 









 







Schedule 2.01




COMMITMENTS AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Percentage of	 
	Lender	 	Revolving Commitment	 	 	Revolving Commitment	 
	Bank of America, N.A.
	 	$	37,500,000.00	 	 	 	37.500000000	%
	Zions First National Bank
	 	$	37,500,000.00	 	 	 	37.500000000	%
	Morgan Stanley Bank
	 	$	25,000,000.00	 	 	 	25.000000000	%
	 	 	 	 	 	 	 
	TOTAL
	 	$	100,000,000.00	 	 	 	100.000000000	%
	 	 	 	 	 	 	 






 


 









 







Schedule 6.10




INSURANCE




The Loan Parties and each of their respective Subsidiaries maintain the following insurance
coverage:



	 	 	 	 	 	 	 
	Coverage	 	Policy Number	 	Expiration Date	 	Limits
	Property
	 	Chubb 35393334	 	7/1/2011	 	Total Insured Value — $128,890,000 Includes Building, Business Personal Property,
Electronic Data Processing Equipment, Valuable Papers, Business Income 

Deductible — $5,000 Per Occurrence
	Machinery Breakdown
	 	Same	 	7/1/2011	 	 
	General Liability
	 	Same	 	7/1/2011	 	$1,000,000 Per Occurrence
$2,000,000 Aggregate
	Employee Benefits Liability
	 	Same	 	7/1/2011	 	$1,000,000 Per Occurrence
	International Coverage
	 	Same	 	7/1/2011	 	$1,000,000 Per Occurrence
	Auto DIC /FVWC
	 	 	 	 	 	 
	
	 		 		 	
	Crime
	 	Chubb 68012035	 	7/1/2011	 	$500,000 Limit 
$10,000 Deductible
	Automobile
	 	Chubb 73266965	 	7/1/2011	 	$1,000,000 Limit 
$1,000 Comp. Ded. / $1,000 Coll. Ded. 
1 Owned Auto — 2006 Ford Econoline
	Umbrella
	 	Chubb 79773500	 	7/1/2011	 	$10,000,000 Limit
 $0 Deductible
	Workers Compensation
	 	Chubb 71655819	 	7/1/2011	 	$1,000,000 Limit
	
	 		 		 	
	 
	Ocean Cargo
	 	Chubb 65241	 	6/30/2011	 	$1,500,000 Limit 
$5,000 Deductible
	Employers Liability — UK
	 	Amlin Insurance C10B4626/2	 	6/30/2011	 	$10,000,000 GBP
	China
— Admitted Policies Property

General Liability
Employers Liability
	 	Chubb 2008320598	 	6/30/2011	 	$1,000,000 Limit
	Internet
& Network
 Security Liability — $5,000,000 Limit
	 	ACE
G24871617 002
G24871605 002	 	6/30/2011	 	$5,000,000 Limit 
$100,000 Deductible






 


 









 







Schedule 6.13




SUBSIDIARIES OF ANCESTRY.COM INC.




Subsidiaries of Ancestry.com Inc.




Ancestry.com Operations Inc.




	 	(i)	 	Delaware, United States

	 
	 	(ii)	 	1,000 Common Shares outstanding

	 
	 	(iii)	 	Ancestry.com Inc. owns 1,000 Common Shares, 100% of the outstanding Equity
Interests

	 
	 	(iv)	 	There are no outstanding options, warrants, rights of conversion or purchase,
or similar rights






Subsidiaries of Ancestry.com Operations Inc.




Ancestry.com UK Limited





	 	(i)	 	England and Wales

	 
	 	(ii)	 	1,000 Ordinary shares of 1£ each are outstanding

	 
	 	(iii)	 	Ancestry.com Operations Inc. owns 1,000 Ordinary shares, 100% of the
outstanding Equity Interests

	 
	 	(iv)	 	There are no outstanding options, warrants, rights of conversion or purchase,
or similar rights






42010523 Canada Inc.




	 	(v)	 	Ontario, Canada

	 
	 	(vi)	 	100 Common Shares outstanding

	 
	 	(vii)	 	Ancestry.com Operations Inc. owns 100 Common Shares, 100% of the outstanding
Equity Interests

	 
	 	(viii)	 	There are no outstanding options, warrants, rights of conversion or purchase, or
similar rights






Ancestry.com Australia Pty Ltd




	 	(ix)	 	Australia

	 
	 	(x)	 	100 Ordinary shares outstanding

	 
	 	(xi)	 	Ancestry.com Operations Inc. owns 100 shares, 100% of the outstanding Equity
Interests

	 
	 	(xii)	 	There are no outstanding options, warrants, rights of conversion or purchase,
or similar rights






Info Rich (Hong Kong) Limited




	 	(xiii)	 	Hong Kong

	 
	 	(xiv)	 	10,000 shares outstanding

	 
	 	(xv)	 	Ancestry.com Operations Inc. owns 10,000 shares, 100% of the outstanding Equity
Interests

	 
	 	(xvi)	 	There are no outstanding options, warrants, rights of conversion or purchase,
or similar rights






Ancestry.com Canada Inc.




	 	(xvii)	 	Ontario, Canada

	 
	 	(xviii)	 	1,000 Common Shares outstanding

	 
	 	(xix)	 	Ancestry.com Operations Inc. owns 1,000 Common Shares, 100% of the outstanding
Equity Interests

	 
	 	(xx)	 	There are no outstanding options, warrants, rights of conversion or purchase,
or similar rights




 


 









 










Ancestry.com UK (Commerce) Limited




	 	(xxi)	 	England and Wales

	 
	 	(xxii)	 	1,000 Shares of 1£ each are outstanding

	 
	 	(xxiii)	 	Ancestry.com Operations Inc. owns 1,000 Shares, 100% of the outstanding Equity
Interests

	 
	 	(xxiv)	 	There are no outstanding options, warrants, rights of conversion or purchase, or
similar rights






TGN Services, LLC




	 	(xxv)	 	Delaware, United States

	 
	 	(xxvi)	 	100 Membership Units outstanding

	 
	 	(xxvii)	 	Ancestry.com Operations Inc. owns 100 Membership Units, 100% of the outstanding
Equity Interests

	 
	 	(xxviii)	 	There are no outstanding options, warrants, rights of conversion or purchase, or
similar rights

	 
	Riverwoods Holding







	 	(xxix)	 	Cayman Islands

	 
	 	(xxx)	 	1,000 shares outstanding

	 
	 	(xxxi)	 	Ancestry.com Operations Inc. owns 1,000 shares, 100% of the outstanding Equity
Interests

	 
	 	(xxxii)	 	There are no outstanding options, warrants, rights of conversion or purchase, or
similar rights






Genline AB




	 	(xxxiii)	 	Sweden

	 
	 	(xxxiv)	 	10,000 shares outstanding

	 
	 	(xxxv)	 	Ancestry.com Operations Inc. owns 10,000 shares, 100% of the outstanding Equity
Interests

	 
	 	(xxxvi)	 	There are no outstanding options, warrants, rights of conversion or purchase, or
similar rights






Subsidiaries of Ancestry.com UK Limited




	 
	Ancestry.com Deutschland GmbH








	 	(xxxvii)	 	Germany

	 
	 	(xxxviii)	 	Total capital contributed is €25,000

	 
	 	(xxxix)	 	Ancestry.com UK Limited contributed €25,000, 100% of the total capital contributed

	 
	 	(xl)	 	There are no outstanding options, warrants, rights of conversion or purchase,
or similar rights






Ancestry.com Italia S.r.l.




	 	(xli)	 	Italy

	 
	 	(xlii)	 	Total capital contributed is €10,000

	 
	 	(xliii)	 	Ancestry.com UK Limited contributed €10,000, 100% of the total capital contributed

	 
	 	(xliv)	 	There are no outstanding options, warrants, rights of conversion or purchase, or
similar rights






Ancestry.com France SARL




	 	(xlv)	 	France

	 
	 	(xlvi)	 	Total capital contributed is €7,500

	 
	 	(xlvii)	 	Ancestry.com UK Limited contributed €7,500, 100% of the total capital contributed

	 
	 	(xlviii)	 	There are no outstanding options, warrants, rights of conversion or purchase, or
similar rights




 


 









 










Subsidiaries of Info Rich (Hong Kong) Limited




Generations Information Technology (Beijing) Co., Ltd.





	 	(xlix)	 	Beijing, People’s Republic of China

	 
	 	(l)	 	Registered capital of $2,100,000 USD

	 
	 	(li)	 	Info Rich (Hong Kong) Limited contributed $2,100,000, 100% of the registered
capital

	 
	 	(lii)	 	There are no outstanding options, warrants, rights of conversion or purchase,
or similar rights






Entities Controlled by Generations Information Technology (Beijing) Co. Ltd.




Beijing Generations Internet Information Services Co., Ltd.




	 	(liii)	 	Beijing, People’s Republic of China

	 
	 	(liv)	 	Beijing Generations is not owned, but is contractually controlled by
Generations Information Technology (Beijing) Co. Ltd.

	 
	 	(lv)	 	N/A

	 
	 	(lvi)	 	N/A






 


 









 







Schedule 6.17 Part A




LIST OF IP RIGHTS




U.S. Trademarks




Registered Marks




	 	 	 	 	 
	Mark	 	Registration No.	 	Registration Date
	SNAPGENIE
	 	3332806	 	11/6/07
	FAMILY TREE MAKER
	 	3189168	 	12/26/06
	GENEALOGY.COM and Design
	 	3704491	 	11/3/09
	Design Only
	 	3626877	 	5/26/09
	ANCESTRY PUBLISHING
	 	3495384	 	9/2/08
	ANCESTRY.COM
	 	3568993	 	2/3/09
	ANCESTRY.COM and Design
	 	3566509	 	1/27/09
	FAMILY TREE MAKER and Design
	 	3529846	 	11/11/08
	ROOTSWEB
	 	3500818	 	9/16/08
	MYFAMILY.COM and Design
	 	3648160	 	6/30/09
	GENEALOGY.COM and Design
	 	3519028	 	10/21/08
	THE GENERATIONS NETWORK
	 	3364580	 	1/8/08
	G THE GENERATIONS NETWORK and Design
	 	3514734	 	10/14/08
	ONEWORLDTREE
	 	3405186	 	4/1/08
	FAMILY TREE DETECTIVE
	 	2464498	 	6/26/01
	GENEALOGY.COM
	 	2521336	 	12/18/01
	WORLD FAMILY TREE
	 	2411525	 	12/5/00
	ALL IN ONE TREE
	 	2485781	 	9/4/01
	MYFAMILY.COM
	 	2445499	 	4/24/01
	MYFAMILY.COM
	 	2698024	 	3/18/03
	ANCESTRY
	 	1577711	 	1/16/90






Pending Applications




	 	 	 	 	 
	Description	 	Application No.	 	Filing Date
	ANCESTRY.COM
	 	77894021	 	12/15/09
	MYCANVAS and Design
	 	77859725	 	10/28/09
	MYCANVAS FREEDOM OF EXPRESSION and Design
	 	77859721	 	10/28/09
	MYCANVAS and Design
	 	77859701	 	10/28/09
	MYCANVAS FREEDOM OF EXPRESSION and Design
	 	77859686	 	10/28/09
	MUNDIA
	 	77791098	 	7/28/09
	MY PLACE IN HISTORY
	 	85101918	 	8/6/10





 


 









 





U.S. Copyrights




Registered Copyrights




	 	 	 	 	 
	Title	 	Registration No.	 	Registration Date
	Video family history
	 	TX2851525	 	4/18/90
	Apprentices of Virginia, 1623-1800
	 	TX2831110	 	4/10/90
	The Library of Congress : a guide to genealogical and historical research
	 	TX2804212	 	4/6/90
	The Library of Congress : a guide to genealogical and historical research
	 	TX2763285	 	2/21/90
	The Library : a guide to LDS Family History
	 	TX2341224	 	3/23/88
	The Wuerttemberg emigration index
	 	TX2316613	 	5/13/88
	The Wuerttemberg emigration index
	 	TX2301885	 	3/23/88
	Confederate research sources : a guide to archive collections
	 	TX2029967	 	3/23/87
	Apprentices of Connecticut, 1637 - 1900
	 	TX2029113	 	3/23/87
	The Wuerttemberg emigration index
	 	TX2022952	 	3/23/87
	The Wuerttemberg emigration index
	 	TX1958025	 	8/18/86
	Summer soldiers : a survey & index of Revolutionary War courts-martial
	 	TX1930939	 	8/18/86
	Computer genealogy : a guide to research through high technology
	 	TX1532034	 	2/26/85
	Genealogical computing
	 	TX2568602	 	5/31/89
	Genealogical computing
	 	TX2566663	 	5/31/89
	Genealogical computing
	 	TX2568603	 	5/31/89
	Genealogical computing
	 	TX2568601	 	5/31/89
	Ancestry newsletter
	 	TX1716317	 	12/10/85
	Ancestry newsletter
	 	TX1715185	 	12/10/85
	Ancestry newsletter
	 	TX1743375	 	1/27/86
	Ancestry newsletter
	 	TX1620991	 	7/25/85
	Ancestry newsletter
	 	TX1620992	 	7/1/85
	Ancestry newsletter
	 	TX1581420	 	4/22/85
	Ancestry newsletter
	 	TX1581423	 	4/22/85
	Ancestry newsletter
	 	TX1581422	 	4/22/85
	Ancestry newsletter
	 	TX1581425	 	4/22/85
	Ancestry newsletter
	 	TX1581421	 	4/22/85
	Ancestry newsletter
	 	TX1581424	 	4/22/85
	Ancestry newsletter
	 	TX1716317	 	12/10/85
	The Library of Congress: a guide to genealogical and historical research
	 	TX2763285	 	2/21/90
	Family tree maker: version 10 : getting started manual
	 	TX5738708	 	4/3/03
	Family tree maker: version 1.02
	 	TX5745496	 	4/3/03
	Family tree maker: version 10
	 	TX5745497	 	4/3/03
	Family tree maker: version 3.4
	 	TX4675608	 	2/20/98
	Genealogical research system version 3
	 	TX4140365	 	2/20/95
	Generation : software product. Generation family tree; grand suite
	 	PA1000141	 	7/28/00
	Generations family tree : deluxe edition
	 	PA1000143	 	7/28/00
	Family tree maker 2010 *
	 	TX7171894	 	9/22/09





 


 









 





U.S. Patents




Issued Patents




	 	 	 	 	 
	Description	 	Patent No.	 	Issue Date
	Correlating genealogy records systems and methods
	 	7249129	 	7/24/07
	Systems and methods for storing and retrieving data in a web server environment
	 	7111144	 	9/19/06
	Image watermarking systems and methods
	 	7756289	 	7/13/10
	Adaptive contrast control systems and methods
	 	7724981	 	5/25/10
	Systems and methods for partitioning data on multiple servers
	 	7392268	 	6/24/08






Pending Applications




	 	 	 	 	 
	Description	 	Application No.	 	Filing Date
	Visualization Creating and Editing Blending Modes Methods and Systems
	 	11240566	 	9/29/08
	User Directed Capture of Unstructured Information from Web Pages with Assignment to Data Type
	 	11121664	 	5/15/08
	User Interface Methods and Systems for Image Brightness and Contrast
	 	11845635	 	8/27/07
	User Interface Method for Skew Correction
	 	11844443	 	8/24/07
	Computer-Assisted Image Cropping for Book Scans
	 	11841268	 	8/20/07
	Systems and Methods for Partitioning Data on Multiple Servers
	 	12144341	 	6/23/08
	Image Quality Monitoring and Tagging at Scan Time
	 	11750191	 	5/17/07
	Dual Page, Apex-Bed Scanner
	 	11617466	 	12/28/06
	Correlating Genealogy Records Systems and Methods
	 	11777215	 	7/12/07
	Multiple Image Input for Optical Character Recognition Processing Systems and Methods
	 	11560026	 	11/15/06
	Providing alternatives with a family tree systems and methods
	 	10748442	 	12/29/03
	Genealogical investigation and documentation systems and methods
	 	10748441	 	12/29/03
	Systems and methods for displaying statistical information on a web page
	 	10247769	 	9/19/02
	Systems and methods for identifying users and providing access to information in a network environment
	 	10247806	 	9/19/02





 


 









 





Schedule 6.17 Part B




LIST OF MATERIAL DOMAIN NAMES




	 	 	 	 	 
	Domain Name	 	Registrar	 	Expiration Date
	ancestry.ca
	 	webnames.ca	 	12/1/2011
	ancestry.com.au
	 	melbourneit.com.au	 	4/24/2012
	ancestry.com
	 	networksolutions.com	 	5/17/2017
	genealogy.com
	 	networksolutions.com	 	2/5/2016
	myfamily.com
	 	networksolutions.com	 	5/25/2017
	rootsweb.com
	 	networksolutions.com	 	1/31/2016
	tgn.com
	 	networksolutions.com	 	9/27/2018
	ancestry.de
	 	1und1.de	 	9/6/2010
	ancestry.co.uk
	 	netnames.com	 	4/18/2012
	ancestry.fr
	 	netnames.com	 	5/16/2011
	ancestry.se
	 	netnames.com	 	8/30/2011
	ancestry.it
	 	aruba.it	 	5/3/2014






Contact person in all cases is John-David Anderson at the Borrower.



Note: The listed registrar is the organization with which Ancestry.com Operations Inc. has a
contractual relationship. Because in some cases the registration is subcontracted to another party,
particularly in the case of non-US registrations where a local entity must represent the
registrant, the registrar listed in “Who Is” may vary.



Schedule 6.17 Part C




LIST OF WEBSITE AGREEMENTS




Agreement dated as of November 19, 2009 by and between SingleEdge, Incorporated and the Borrower,
as amended or otherwise modified



Verizon Business Service Agreement, dated as of March 19, 2007 by and between Verizon Business
Network Services, Inc. and the Borrower, as amended or otherwise modified.



 


 









 







Schedule 6.20(a)




LOCATIONS OF REAL PROPERTY




Owned Real Property:



None.




Leased Real Property:



	 	 	 
	Loan Party	 	Location
	Ancestry.com
Operations Inc.

	 	360 West 4800 North, Provo, UT 84604 (Riverwoods — East Bldg) (Office
space)
	Ancestry.com
Operations Inc.

	 	466 West 4800 North, Provo, UT 84604 (Riverwoods — West Bldg) (Office
space)
	Ancestry.com
Operations Inc.

	 	193/225 South Mountain Way, Orem, UT 84057 (Warehouse)
	Ancestry.com
Operations Inc.

	 	111000 NE, 8th Street #840, Bellevue, WA 98004 (Office space)
	Ancestry.com
Operations Inc.

	 	501 Second Street #130, San Francisco, CA 94107 (Office space)
	Ancestry.com
Operations Inc.

	 	8484 Georgia Ave., Silver Spring, MD 20910 (Office space)
	Ancestry.com
Operations Inc.

	 	136 Heber Ave., #206, Park City, UT 84060 (Office space)
	TGN Services, LLC

	 	455 East 400 South, Salt Lake City, UT 84111 (Office space)






 


 









 







Schedule 6.20(b)




TAXPAYER AND ORGANIZATIONAL IDENTIFICATION NUMBERS




	 	 	 	 	 	 	 	 	 
	Loan Party	 	Tax ID	 	 	Organization ID	 
	Ancestry.com Inc.
	 	[Tax ID number appears in original]	 	 	4431031	 
	Ancestry.com
Operations Inc.
	 	[Tax ID number appears in original]	 	 	1968440	 
	TGN Services LLC
	 	[Tax ID number appears in original]	 	 	4674580	 






 


 









 







Schedule 6.20(c)




CHANGES IN LEGAL NAME, STATE OF FORMATION AND STRUCTURE




Item (i):




“MyFamily.com Inc.” changed to “The Generations Network, Inc.”, and then changed to “Ancestry.com
Operations Inc.”



“Generations Holding, Inc.” changed to “Ancestry.com Inc.”




Item (ii):




None.



Item (iii):




MYFAMILY/TAM SUBSIDIARY CORP. merged with and into Ancestry.com Operations Inc. with assets and
operations being taken over by Ancestry.com Operations Inc.



ROOTSWEB.COM, INC. merged with and into Ancestry.com Operations Inc. with assets and operations
being taken over by Ancestry.com Operations Inc.



ENCOUNTER TECHNOLOGIES, LLC. merged with and into Ancestry.com Operations Inc. with assets and
operations being taken over by Ancestry.com Operations Inc.



 


 









 







Schedule 8.01




LIENS EXISTING ON THE CLOSING DATE




Lien on certain assets of Genline AB securing Genline AB’s SEK 100,500 loan from Handelsbanken and
Genline AB’s SEK 2,000,000 line of credit with Handelsbanken.



Lien against underlying leased assets of Genline AB securing Genline AB’s obligations under the
capital leases listed on Schedule 8.03.



 


 









 







Schedule 8.02




INVESTMENTS EXISTING ON THE CLOSING DATE




Investments consisting of the ownership of Equity Interests in the Subsidiaries described on
Schedule 6.13.



Genline AB’s ownership of 25% of the Equity Interests of Släktforskarnas Hus i Leksand AB, a
limited liability company duly established under the laws of Sweden which, inter alia, provides
digitalization and customer services to Genline AB.



 


 









 







Schedule 8.03




INDEBTEDNESS EXISTING ON THE CLOSING DATE




Indebtedness of Genline AB under SEK 100,500 loan from Handelsbanken.



Indebtedness of Genline AB under SEK 2,000,000 loan from Handelsbanken.



Indebtedness of Genline AB under Lease agreement between Genline AB and Handelsbanken dated April
18, 2008 and 60 month term for server platform and software. Value of capital lease is SEK
961,228.



Indebtedness of Genline AB under Lease agreement between Genline AB and Handelsbanken dated March
10, 2008 and 48 month term for scanner and software. Value of capital lease is SEK 276,549.



Indebtedness of Genline AB under Lease agreement between Genline AB and Handelsbanken dated
April 11, 2007 and 48 month term for computer equipment. Value of capital lease is SEK 102,395.



Wells One Commercial Card Agreement, dated July 9, 2006 between Wells Fargo Bank, N.A. and
Ancestry.com Operations Inc., which provides for a credit limit of $500,000 for charges by
Ancestry.com Operations Inc. to the WellsOne Commercial Card.



 


 









 







Schedule 11.02




CERTAIN ADDRESSES FOR NOTICES




1. Address for Loan Parties:



Ancestry.com Operations Inc.

360 W 4800 N

Provo, UT 84604

Attention: Bruce Petersen

Telephone: 801-705-7920

Facsimile: 801-705-7010

E-mail: bpetersen@ancestry.com




2. Address for Administrative Agent, Swing Line Lender and L/C Issuer




Administrative Agent’s Office:

(for payments, and Requests for Credit Extensions)



Bank of America, N.A.

Credit Services

CA4-702-02-05

2001 Clayton Road Floor 2

Concord CA 94520

Attention: Hussin Baig

Telephone: 925-675-7659

Facsimile: 888-264-0966

E-mail: Hussin.baig@baml.com




Wiring instructions:




Bank of America, N.A.

Dallas TX

ABA #: 026009593

Acct #: [Account number appears in original]

Account Name: Corporate FTA

Attention: Hussin Baig

Ref: Ancestry.com Operations Inc.




Other Notices as Administrative Agent:




Brenda H. Little

Vice President

Agency Management

WA1-501-17-32

800 5th Avenue Floor 17

Seattle WA 98104

Telephone: 206-358-0048

Telecopier: 415-343-0557

Electronic Mail: brenda.h.little@baml.com



 


 









 





Bank of America, N.A. as L/C Issuer:




Bank of America, N.A.

Trade Operation

CA9-705-07-05

1000 W Temple ST Floor 7

Los Angeles CA 90012

Attention: Bolivar Carrillo

Telephone: 213-481-7842

Facsimile: 213-457-8841

E-mail: bolivar.carrillo@baml.com




Bank of America, N.A. as Swing Line Lender:



Bank of America, N.A.

Credit Services

CA4-702-02-05

2001 Clayton Road Floor 2

Concord CA 94520

Attention: Hussin Baig

Telephone: 925-675-7659

Facsimile: 888-264-0966

E-mail: Hussin.baig@baml.com




Wiring instructions:




Bank of America, N.A.

Dallas TX

ABA #: 026009593

Acct #: [Account number appears in original]

Account Name: Corporate FTA

Attention: Hussin Baig

Ref: Ancestry.com Operations Inc.




 


 









 







Exhibit A




FORM OF LOAN NOTICE




Date: __________, 201__




	 	 	 
	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Credit Agreement dated as of September 9, 2010 (as amended, modified,
supplemented or extended from time to time, the “Credit Agreement”)
among Ancestry.com Operations Inc., a Delaware corporation (the
“Borrower”), the Guarantors, the Lenders from time to time party
thereto and Bank of America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer. Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit
Agreement.







Ladies and Gentlemen:



The undersigned hereby requests (select one):



o A Borrowing of Revolving Loans



o A conversion or continuation of Revolving Loans




	1.	 	On
 _____, 201_____ 
(which is a Business Day).

	 
	2.	 	In the amount of $_____.

	 
	3.	 	Comprised of _____ 
(Type of Loan requested).

	 
	4.	 	For Eurodollar Rate Loans: with an Interest Period of
 _____ 
months.






The Borrower hereby represents and warrants that (a) after giving effect to any Borrowing of
Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Revolving Commitment and (b) each of the conditions set forth in
Section 5.02 of the Credit Agreement has been satisfied on and as of the date of such
Borrowing, conversion or continuation.



	 	 	 	 	 	 	 
	 	 	ANCESTRY.COM OPERATIONS INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







Exhibit B




FORM OF SWING LINE LOAN NOTICE




Date: __________, 201_




	 	 	 
	To:

	 	Bank of America, N.A., as Swing Line Lender
	 
	 	 
	Cc:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Credit Agreement dated as of September 9, 2010 (as
amended, modified, supplemented or extended from
time to time, the “Credit Agreement”) among
Ancestry.com Operations Inc., a Delaware corporation
(the “Borrower”), the Guarantors, the Lenders from
time to time party thereto and Bank of America,
N.A., as Administrative Agent, Swing Line Lender and
L/C Issuer. Capitalized terms used but not
otherwise defined herein have the meanings provided
in the Credit Agreement.







Ladies and Gentlemen:



The undersigned hereby requests a Swing Line Loan:




	1.	 	On
 _____, 201_____ 
(a Business Day).

	 
	2.	 	In the amount of $_____.






The Borrower hereby represents and warrants that (a) after giving effect to such Borrowing of Swing
Line Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Revolving Commitment and (b) each of the conditions set forth in
Section 5.02 of the Credit Agreement has been satisfied on and as of the date of such
Borrowing of Swing Line Loans.



	 	 	 	 	 	 	 
	 	 	ANCESTRY.COM OPERATIONS INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT C




FORM OF REVOLVING NOTE




FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to

 _____ 
or its registered assigns (the “Lender”), in accordance with the
provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Revolving
Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement dated
as of September 9, 2010 (as amended, modified, supplemented or extended from time to time, the
“Credit Agreement”) among the Borrower, the Guarantors, the Lenders from time to time party
thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit
Agreement.



The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from
the date of such Revolving Loan until such principal amount is paid in full, at such interest rates
and at such times as provided in the Credit Agreement. All payments of principal and interest
shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Credit Agreement.



This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving
Loans and payments with respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest
and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note.



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



	 	 	 	 	 	 	 
	 	 	ANCESTRY.COM OPERATIONS INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT D




FORM OF SWING LINE NOTE




FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to BANK OF
AMERICA, N.A. or its registered assigns (the “Swing Line Lender”), in accordance with the
provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Swing
Line Loan from time to time made by the Swing Line Lender to the Borrower under that certain Credit
Agreement dated as of September 9, 2010 (as amended, modified, supplemented or extended from time
to time, the “Credit Agreement”) among the Borrower, the Guarantors, the Lenders from time
to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer. Capitalized terms used but not otherwise defined herein have the meanings provided in the
Credit Agreement.



The Borrower promises to pay interest on the unpaid principal amount of each Swing Line Loan from
the date of such Swing Line Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Credit Agreement. All payments of principal and
interest shall be made directly to the Swing Line Lender in Dollars in immediately available funds.
If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to
be paid upon demand, from the due date thereof until the date of actual payment (and before as well
as after judgment) computed at the per annum rate set forth in the Credit Agreement.



This Swing Line Note is the Swing Line Note referred to in the Credit Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Swing Line Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. Swing Line Loans made by the Swing Line Lender shall be evidenced by one or more loan
accounts or records maintained by the Swing Line Lender in the ordinary course of business. The
Swing Line Lender may also attach schedules to this Swing Line Note and endorse thereon the date,
amount and maturity of its Swing Line Loans and payments with respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest
and demand and notice of protest, demand, dishonor and nonpayment of this Swing Line Note.



THIS SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.



	 	 	 	 	 	 	 
	 	 	ANCESTRY.COM OPERATIONS INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







Exhibit E




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: __________, 201___ 




	 	 	 
	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Credit Agreement dated as of September 9, 2010 (as amended, modified,
supplemented or extended from time to time, the “Credit Agreement”)
among Ancestry.com Operations Inc., a Delaware corporation (the
“Borrower”), the Guarantors, the Lenders from time to time party
thereto and Bank of America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer. Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit
Agreement.







Ladies and Gentlemen:



The undersigned Responsible Officer hereby certifies as of the date hereof that [he/she] is the
 _____ 
of Holdings and the Borrower, and that, in [his/her] capacity as such, [he/she] is
authorized to execute and deliver this Certificate to the Administrative Agent on behalf of
Holdings and the Borrower, and that:



[Use following paragraph 1 for the fiscal year-end financial statements:]




[1. Attached hereto as Schedule 1 are the year-end audited consolidated financial
statements required by Section 7.01(a) of the Credit Agreement for the fiscal year of
Holdings and its Subsidiaries ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.]



[Use following paragraph 1 for fiscal quarter-end financial statements:]




[1. Attached hereto as Schedule 1 are the unaudited consolidated financial statements
required by Section 7.01(b) of the Credit Agreement for the fiscal quarter of Holdings and
its Subsidiaries ended as of the above date. Such financial statements fairly present in all
material respects the financial condition, results of operations and cash flows of Holdings and its
Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal
year-end audit adjustments and the absence of footnotes.]



2. The undersigned has reviewed and is familiar with the terms of the Loan Documents and has made,
or has caused to be made, a detailed review of the transactions and condition (financial or
otherwise) of the Loan Parties during the accounting period covered by the attached financial
statements.



3. A review of the activities of the Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Loan Parties performed and observed all their obligations under the Loan Documents, and



[select one:]




[to the best knowledge of the undersigned during such fiscal period, each Loan Party performed and
observed each covenant and condition of the Loan Documents applicable to it.]



[or:]


 


 









 





[the following covenants or conditions have not been performed or observed and the following is a
list of each such Default and its nature and status:]



4. The financial covenant analyses and calculation of the Consolidated Fixed Charge Coverage Ratio
and the Consolidated Leverage Ratio set forth on Schedule 2 attached hereto are true and
accurate on and as of the date of this Certificate.




	[5.	 	Set forth on Schedule 3 hereto is a true and accurate list as required by
Section 7.02(e) of the Credit Agreement on and as of the date of this
Compliance Certificate of all written claims by third parties received by
any Loan Party under the Lanham Act, through a Uniform Domain Name Dispute
Resolution Proceeding or court proceeding, that a Loan Party or any
Subsidiary does not own or have the right to use any Material Domain Name or
Material Domain Names since the [date of the prior Compliance
Certificate][Closing Date]].

	 
	[or:]
	 
	[5.	 	 Since the [date of the prior Compliance Certificate][Closing Date] no
written claims by third parties have been received under the Lanham Act,
through a Uniform Domain Name Dispute Resolution Proceeding or court
proceeding, that a Loan Party or any Subsidiary does not own or have the
right to use any Material Domain Name or Material Domain Names.]

	 
	[6.	 	 Set forth on Schedule 4 hereto is a true and accurate list as required by
Section 7.02(j) of the Credit Agreement on and as of the date of this
Compliance Certificate of (a) all applications by any Loan Party for
Copyrights, Patents or Trademarks, (b) all issuances of registrations or
letters on existing applications made by any Loan Party for Copyrights,
Patents and Trademarks, (c) all Trademark Licenses, Copyright Licenses and
Patent Licenses entered into by any Loan Party, in each case since the [date
of the prior Compliance Certificate][Closing Date] and (d) (x) all Material
Domain Names as of the date hereof and (y) all Website Agreements that are
reasonably necessary for the operation of the business of the Borrower and
its Subsidiaries entered into since the [date of the prior Compliance
Certificate][Closing Date].]

	 
	[or:]
	 
	[6.	 	 Since the [date of the prior Compliance Certificate][Closing Date] (a) the
Borrower has made no applications for Copyrights, Patents or Trademarks, (b)
there have been no issuances of registrations or letters on existing
applications made by the Borrower for Copyrights, Patents and Trademarks,
(c) the Borrower has not entered into any Trademark Licenses, Copyright
Licenses or Patent Licenses and (d) the Borrower has not entered into any
Website Agreements that are reasonably necessary for the operation of the
business of the Borrower and its Subsidiaries since the [date of the prior
Compliance Certificate][Closing Date]. Set forth on Schedule 4 hereto is a
true and accurate list as required by Section 7.02(j) of the Credit
Agreement on and as of the date of this Compliance Certificate of all
Material Domain Names.]






 


 









 






[Use following paragraph 7 for the first and third fiscal quarters of each fiscal year of Holdings:]




	[7.	 	 Set forth on Schedule 5 is a true and accurate list as required by
Section 7.02(k) of the Credit Agreement on and as of the date of this Compliance
Certificate of all Domain Names acquired since the [date of the prior
Compliance Certificate][Closing Date].]








	8.	 	Set forth on Schedule 6, is information as required by Section 7.02(l) of the
Credit Agreement
regarding the amount of all Permitted Acquisitions that have been consummated from the
Closing Date to the date of this Certificate, including identification of the type(s) and
amount of consideration paid for each such Permitted Acquisition.




 


 









 











IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
 _____, 201_____.



	 	 	 	 	 	 	 
	 	 	ANCESTRY.COM OPERATIONS INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ANCESTRY.COM INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 







 


 











 




Schedule 2

to Compliance Certificate




	 	 	 	 	 
	1. Consolidated Leverage Ratio
	 	 	 	 
	 
	 	 	 	 
	(a) Consolidated Funded Indebtedness
	 	$	                    	 
	 
	 	 	 	 
	(b) the outstanding principal amount of Subordinated
Indebtedness
	 	$	                    	 
	 
	 	 	 	 
	(c) Consolidated EBITDA
	 	 	 	 
	 
	 	 	 	 
	(i) Consolidated Net Income
	 	$	                    	 
	 
	 	 	 	 
	(ii) Consolidated Interest Charges
	 	$	                    	 
	 
	 	 	 	 
	(iii) federal, state, local and foreign
income taxes for such period
	 	$	                    	 
	 
	 	 	 	 
	(iv) depreciation and amortization expense for
such period, including any non-cash charges
associated with any impairment analyses
required under Accounting Standards
Codification 350 for goodwill and
other intangible assets
	 	$	                    	 
	 
	 	 	 	 
	(v) all non-cash, non-recurring charges or
expenses for such period (excluding any
non-cash charges or expenses related to
receivables) that do not represent a cash
item in such period or any future period
	 	$	                    	 
	 
	 	 	 	 
	(vi) non-cash stock based employee compensation
expenses for such period
	 	$	                    	 
	 
	 	 	 	 
	(vii) all non-cash, non-recurring income or gains
for such period
	 	$	                    	 
	 
	 	 	 	 
	(viii) [(i) + (ii) +(iii) + (iv) + (v) + (vi) - (vii)]
	 	$	                    	 
	 
	 	 	 	 
	(d) Consolidated Leverage Ratio

[((a) – (b))/(c)(viii)]
	 	 	            :1.0	 





 


 









 





	 	 	 	 	 
	2. Consolidated Fixed Charge Coverage Ratio
	 	 	 	 
	 
	 	 	 	 
	(a) Consolidated EBITDA 

(1(c)(viii) above)
	 	$	                    	 
	 
	 	 	 	 
	(b) Consolidated Fixed Charges
	 	$	                    	 
	 
	 	 	 	 
	(i) Consolidated Cash Taxes
	 	$	                    	 
	 
	 	 	 	 
	(ii) cash portion of Consolidated Interest
Charges
	 	$	                    	 
	 
	 	 	 	 
	(iii) Consolidated Capital Expenditures (excluding
Consolidated Capital Expenditures made in
connection with the acquisition of one data
center during the term of the Credit
Agreement in an amount not to exceed
$15,000,000 during the term of the Credit
Agreement)
	 	$	                    	 
	 
	 	 	 	 
	(iv) Consolidated Scheduled Principal Payments
(other than Consolidated Scheduled Principal
Payments made on Consolidated Funded
Indebtedness under the Existing Credit Agreement
during the fiscal year of Holdings ending
December 31, 2010)
	 	$	                    	 
	 
	 	 	 	 
	(v) without duplication, Consolidated
Capitalized Content
	 	$	                    	 
	 
	 	 	 	 
	(vi) the amount of cash dividends and other
Restricted Payments made by the Loan
Parties during such period (excluding the
aggregate amount of
Restricted Payments permitted by Section
8.06(d) of the Credit Agreement)
	 	$	                    	 
	 
	 	 	 	 
	(vii) [(i) + (ii) +(iii) + (iv) + (v) + (vi)]
	 	$	                    	 
	 
	 	 	 	 
	(c) Consolidated Fixed Charge Coverage Ratio

[(a)/(b)(vii)]
	 	 	            :1.0	 





 


 









 





Exhibit F




FORM OF JOINDER AGREEMENT




THIS JOINDER AGREEMENT (the “Agreement”) dated as of
 _____, 201_____ 
is by and
between
 _____, a
 _____ 
(the “New Subsidiary”), and Bank of America, N.A., in its
capacity as Administrative Agent under that certain Credit Agreement dated as of September 9, 2010
(as amended, modified, supplemented or extended from time to time, the “Credit Agreement”)
among Ancestry.com Operations Inc., a Delaware corporation (the “Borrower”), the
Guarantors, the Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.



The Loan Parties are required by Section 7.12 of the Credit Agreement to cause the New
Subsidiary to become a “Guarantor” thereunder. Accordingly, the New Subsidiary hereby agrees as
follows with the Administrative Agent, for the benefit of the holders of the Obligations:



1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a
“Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a
Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit Agreement. Without limiting the
generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby jointly and
severally together with the other Guarantors, guarantees to each Lender and the Administrative
Agent, as provided in Article IV of the Credit Agreement, the prompt payment and
performance of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof.



2. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a party to the Security Agreement and a
“Grantor” for all purposes of the Security Agreement, and shall have all the obligations of a
Grantor thereunder as if it had executed the Security Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Security Agreement. Without limiting the generality of the foregoing
terms of this paragraph 2, the New Subsidiary hereby grants to the Administrative Agent, for the
benefit of the holders of the Obligations, a continuing security interest in, and a right of set
off against, any and all right, title and interest of the New Subsidiary in and to the Collateral
(as defined in the Security Agreement) of the New Subsidiary to secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or
otherwise, of the Secured Obligations (as defined in the Security Agreement).



3. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a party to the Pledge Agreement and a “Pledgor”
for all purposes of the Pledge Agreement, and shall have all the obligations of a Pledgor
thereunder as if it had executed the Pledge Agreement. The New Subsidiary hereby ratifies, as of
the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained
in the Pledge Agreement. Without limiting the generality of the foregoing terms of this paragraph
3, the New Subsidiary hereby grants, pledges and assigns to the Administrative Agent, for the
benefit of the holders of the Obligations, a continuing security interest in any and all right,
title and interest of the New Subsidiary in and to the Equity Interests identified on Schedule
6 hereto and all other Pledged Collateral (as defined in the Pledge Agreement) of the New
Subsidiary to secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or
otherwise, of the Secured Obligations (as defined in the Pledge Agreement).


 


 









 





4. The New Subsidiary hereby represents and warrants to the Administrative Agent and the
Lenders that:




(a) The New Subsidiary’s exact legal name and state of formation are as set forth on
the signature pages hereto.




(b) The New Subsidiary’s taxpayer identification number and organization number are set
forth on Schedule 1 hereto.




(c) Other than as set forth on Schedule 2 hereto, the New Subsidiary has not
changed its legal name, changed its state of formation, been party to a merger,
consolidation or other change in structure in the five years preceding the date hereof.




(d) Schedule 3 hereto includes all of the IP Rights registered or pending
registration with the United States Copyright Office or the United States Patent and
Trademark Office and owned by the New Subsidiary as of the date hereof. None of the IP
Rights of the New Subsidiary set forth in Schedule 3 hereto is subject to any
licensing agreement or similar arrangement, except as set forth on Schedule 3
hereto.




(e) Schedule 4 hereto includes all Commercial Tort Claims asserted in any
judicial action before any Governmental Authority by or in favor of the New Subsidiary as of
the date hereof.




(f) Schedule 5 hereto lists all real property located in the United States that
is owned or leased by the New Subsidiary as of the date hereof.




(g) Schedule 6 hereto lists each Subsidiary of the New Subsidiary, together
with (i) jurisdiction of formation, (ii) number of shares of each class of Equity Interests
outstanding, (iii) the certificate number(s) of the certificates evidencing such Equity
Interests and number and percentage of outstanding shares of each class owned by the New
Subsidiary (directly or indirectly) of such Equity Interests and (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto.



5. The address of the New Subsidiary for purposes of all notices and other communications is
the address designated for all Loan Parties on Schedule 11.02 to the Credit Agreement or
such other address as the New Subsidiary may from time to time notify the Administrative Agent in
writing.



6. This Agreement may be executed in multiple counterparts, each of which shall constitute an
original but all of which when taken together shall constitute one contract.



7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



 


 









 







IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be duly executed
by its authorized officer, and the Administrative Agent, for the benefit of the holders of the
Obligations, has caused the same to be accepted by its authorized officer, as of the day and year
first above written.



	 	 	 	 	 	 	 
	 	 	[NEW SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Acknowledged and accepted:



BANK OF AMERICA, N.A.,

as Administrative Agent



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





 


 









 





Schedule 1




Taxpayer Identification Number; Organizational Number



 


 









 







Schedule 2




Changes in Legal Name or State of Formation;

Mergers, Consolidations and other Changes in Structure



 


 









 







Schedule 3




IP Rights



 


 









 







Schedule 4




Commercial Tort Claims



 


 









 







Schedule 5




Real Property Locations



 


 









 







Schedule 6




Equity Interests



 


 









 







Exhibit G




FORM OF ASSIGNMENT AND ASSUMPTION




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



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations as a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under the respective
facilities identified below (including, without limitation, the Letters of Credit and the Swing
Line Loans and the Guarantees included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the 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 “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.



	 	 	 	 	 
	1.

	 	Assignor:
	 	              
                   
                   
                   
                   
          
	 
	 	 	 	 
	2.

	 	Assignee:
	 	             
                   
                   
                   
                   
            [and is an
Affiliate/Approved Fund of [identify Lender]]
	 
	 	 	 	 
	3.

	 	Borrower:
	 	Ancestry.com Operations Inc., a Delaware corporation
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	Credit Agreement dated as of September 9, 2010 (as amended, modified, supplemented or extended
from time to time, the “Credit Agreement”) among the Borrower, the Guarantors, the Lenders from
time to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer.






 


 









 





	 	 	 	 	 
	6.

	 	Assigned Interest:	 	 






	 	 	 	 	 
	Aggregate Amount of	 	Amount of	 	 
	Revolving	 	Revolving	 	Percentage Assigned of
	Commitments/Loans	 	Commitments/Loans	 	Revolving
	for all Lenders	 	Assigned1	 	Commitment/Loans2
	 

	 	 
	 	 






	 	 	 	 	 
	7.

	 	Trade Date:
	 	              
                   
                   
                   
         
	 
	 	 	 	 
	8.

	 	Effective Date:
	 	              
                   
                   
                   
         






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



	 	 	 	 	 	 	 
	ASSIGNOR:	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	ASSIGNEE:	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





 




	 	 	 
	1	 	Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.

	 
	2	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.





 


 









 





	 	 	 	 	 
	[Consented to and]3 Accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A.,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[Consented to:]4	 	 
	 
	 	 	 	 
	ANCESTRY.COM OPERATIONS INC.,	 	 
	a Delaware corporation	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[Consented to:] 5	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A.,	 	 
	as L/C Issuer	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[Consented to:] 6	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A.,	 	 
	as Swing Line Lender	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





 






	 	 	 
	3	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.

	 
	4	 	To be added only if the consent of the Borrower is
required by the terms of the Credit Agreement.

	 
	5	 	To be added only if the consent of the L/C Issuer is
required by the terms of the Credit Agreement.

	 
	6	 	To be added only if the consent of the Swing Line
Lender is required by the terms of the Credit Agreement.



 


 









 









Annex 1 to Assignment and Assumption




STANDARD TERMS AND CONDITIONS




1. Representations and Warranties.



1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption 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 Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets the requirements to be an assignee under Section 11.06(b)(iv) of
the Credit Agreement (subject to such consents, if any, as may be required under Section
11.06(b)(ii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound
by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect
to decisions to acquire assets of the type represented by the Assigned Interest and either it, or
the Person exercising discretion in making its decision to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 7.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, and
(vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.



2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective Date.



3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance with, the law of the
State of New York.


 


 









 





Exhibit H




FORM OF ESCROW AGREEMENT




[See attached.]




 


 









 







ESCROW AGREEMENT AND SECOND AMENDMENT TO THE RECORD STORAGE AGREEMENT




Deposit Account Number 600654




This escrow agreement (“Agreement”) is effective as
of September [_____], 2010 (the
“Effective Date”) by and among PERPETUAL STORAGE, INC., a California corporation qualified
to do and doing business in the State of Utah with its principal office at 6279 East Little
Cottonwood Canyon Road, Sandy, Utah 84092 (“Escrow Agent”), ANCESTRY.COM OPERATIONS INC., a
Delaware corporation (the “Company”), ANCESTRY.COM INC., a Delaware corporation
(“Holdings”) and TGN SERVICES, LLC, a Delaware limited liability company (“TGN”,
and together with the Company and Holdings, the “Depositors”) and BANK OF AMERICA, N.A., a
national banking association, as Administrative Agent (as defined in the Credit Agreement)
(“Beneficiary” and together with the Escrow Agent and the Depositors, collectively the
“Parties” or individually a “Party”). Except as otherwise provided herein,
capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Credit Agreement (as defined below).



A. The Depositors and Beneficiary have entered into that certain Credit Agreement among the
Company, the Guarantors, the Lenders from time to time party hereto and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, as the same may be amended, amended and
restated or otherwise modified from time-to-time (the “Credit Agreement”).



B. The availability of the Proprietary Materials (as defined below) is critical to Beneficiary
for collateral purposes pursuant to the Credit Agreement. Therefore, Beneficiary needs access to
the Proprietary Materials including any Source Code (as defined below) relating thereto, under
certain limited circumstances.



C. The Escrow Agent and the Company (f/k/a MyFamily.Com, Inc.) are parties to that certain
Record Storage Agreement, dated January 8, 2003, (as previously amended or otherwise modified, the
“Storage Agreement”) whereby backup copies of various components of the Proprietary
Materials are already stored by Escrow Agent, which is incorporated herein by reference (the
“Pre-Stored Materials”).



D. As required under the Credit Agreement, the Depositors and Beneficiary desire to establish
an escrow with Escrow Agent to provide for the retention, administration and controlled access of
the Proprietary Materials, including any Source Code relating thereto, of the Depositors.



E. The Parties desire to amend the terms of the Storage Agreement to make them compatible with
this Agreement and with the Credit Agreement, as more fully set forth in Article 5 herein.



F. The Parties desire this Agreement to be supplementary to the Credit Agreement pursuant to
II United States Bankruptcy Code, Section 365(n).



ARTICLE 12—DEFINITIONS





12.1 As used in this Agreement, the following terms shall have the meanings set forth below:




“Agreement” shall have the meaning ascribed to it in the preamble of this Agreement.



“Beneficiary” shall have the meaning ascribed to it in the preamble of this Agreement.


 


 









 






“Company” shall have the meaning ascribed to it in the preamble of this Agreement.




“Credit Agreement” shall have the meaning ascribed to it in Recital A.




“Deposit Materials” shall have the meaning ascribed to it in Section 2.1 of this Agreement.




“Depositors” shall have the meaning ascribed to it in the preamble of this Agreement.




“Effective Date” shall have the meaning ascribed to it in the preamble of this Agreement.




“Escrow Agent” shall have the meaning ascribed to it in the preamble of this Agreement.




“Holdings” shall have the meaning ascribed to it in the preamble of this Agreement.



“Party” or “Parties” shall have the respective meaning ascribed to each term in the preamble
of this Agreement.




“Pre-Stored Materials” shall have the meaning ascribed to it in Recital C.



“Proprietary Databases” means any proprietary database owned, licensed or otherwise used by
any Depositor or any Subsidiary of any Depositor including, without limitation, the genealogy
database and all associated data.




“Proprietary Materials” means all Proprietary Software and all Proprietary Databases.



“Proprietary Software” means any proprietary software owned, licensed or otherwise used by any
Depositor or any Subsidiary of a Depositor other than any software that is generally commercially
available, including without limitation, the object code and Source Code, to the extent Depositor
is in possession of such Source Code, forms of such software and all associated documentation.




“Release Condition” shall have the meaning scribed to it in Section 6.1.



“Source Code” means a copy of all source code (such that an object code version of the
Proprietary Software and to the extent applicable to the Proprietary Databases may be compiled
solely from such source code) and any related data, programming documentation, pertinent
commentary, explanations, object code, data, and other computer files and related documents used in
the Proprietary Software as developed by a Depositor and to the extent applicable to the
Proprietary Databases or used to create, debug, install, uninstall, test, or perform quality
assurance for the same including as is necessary for a reasonably skilled programmer to compile,
build, install, and validate all modules of the same solely from such source code. It is
understood and agreed that the Depositors may not possess and are not required to possess Source
Code for Proprietary Software where such software was developed by a third party and is of such a
nature that object code delivery would be customary.




“Storage Agreement” shall have the meaning ascribed to it in Recital C.




“TGN” shall have the meaning ascribed to it in the preamble of this Agreement.




“Term” shall have the meaning ascribed to it in Section 7.1 of this Agreement.


 


15









 





ARTICLE 13— DEPOSITS



13.1 Obligation to Make Deposit. Within ten (10) Business Days of the Effective Date,
the Depositors shall deliver to Escrow Agent a copy of all of the Proprietary Materials, including
but not limited to the Source Code for the Proprietary Software and the Proprietary Databases,
(“Deposit Materials”); provided, however, that the Depositors shall not be required
to redeliver to Escrow Agent a copy of any Pre-Stored Materials, which shall be deemed: (i) duly
delivered on the Effective Date, and (ii) part of the Deposit Materials and the Proprietary
Materials. In addition, no less than quarterly during each year of the Term, and within thirty
(30) days of each release of each upgrade or new version, the Depositors shall update the Deposit
Materials (for purposes of clarity, which may, at Depositor’s discretion, take the form of making
weekly incremental deposits) with any update, patch, bug fix, enhancement, correction, modification
or major version release to the Proprietary Materials in each case accessible by commercially
available applications not in an encrypted format (or if encrypted, the encryption key and
instructions or software to decrypt are also provided). For the purposes of clarity, this Section
2.1 does not require that the Depositors deliver to the Beneficiary any commercially available and
licensed third-party software used to create, debug, install, uninstall, test, or perform quality
assurance for the Proprietary Material, update, or new release (and not incorporated therein). The
Beneficiary shall have the right, at its own expense, to verify the Deposit Materials and all
updates thereto for accuracy, completeness and sufficiency, from time-to-time upon reasonable
notice to Escrow Agent and the Depositors.



13.2 Identification of Tangible Media. Prior to the delivery of any Deposit Materials
to Escrow Agent, the Depositors shall conspicuously label for identification each document,
magnetic tape, disk, or other media upon which the Deposit Materials are written or stored.



13.3 Acceptance of Deposit. Upon Escrow Agent’s receipt of additional Deposit
Materials, Escrow Agent shall store the additional Deposit Materials with the existing Deposit
Materials



13.4 The Depositors’ Representations. During the term of this Agreement, the
Depositors represent as follows:




(a) The Depositors lawfully possess all of the Deposit Materials deposited with Escrow
Agent free of any liens or encumbrances (other than Permitted Liens) as of the date of their
deposit. Any Deposit Materials liens or encumbrances made after their deposit (other than
Permitted Liens) will not prohibit, limit, or alter the rights and obligations of Escrow
Agent under this Agreement;




(b) That all Deposit Material is readable and useable in its then current form; and if
any portion of such Deposit Material is encrypted the necessary decryption tools and keys to
read such material are deposited contemporaneously;




(c) With respect to all of the Deposit Materials, the Depositors have the right and
authority to grant to Escrow Agent and Beneficiary the rights, as provided in this
Agreement, provided further that Escrow Agent’s or its independent contractor’s use of any
Deposit Materials, pursuant to Section 2.3 of this Agreement, is lawful and does not violate
the rights of any third parties; and




(d) The Deposit Materials consist of the Proprietary Materials, including but not
limited to all data, software, or other materials stored by Escrow Agent for the Depositors
under the Storage Agreement.


 


16









 





13.5 Removal of Deposit Materials. The Deposit Materials may be removed and/or
exchanged only as explicitly provided in this Agreement; provided, however, it is understood and
agreed
that Depositor shall be able to retrieve on a regular basis consistent with past practice
tapes containing Proprietary Materials on deposit with Perpetual Storage that no longer constitute
Proprietary Materials. Notwithstanding the foregoing, under no circumstances shall Depositor
remove Deposit Materials for any purpose other than as permitted in the previous sentence and
Escrow Agent shall not allow Depositor to remove all or a substantial portion of the Deposit
Materials without the consent of Beneficiary. Escrow Agent agrees to promptly notify Beneficiary
if the Depositors remove Deposit Materials inconsistent with past practice.



13.6 Role of Company and Other Depositors. For purposes of clarity, the parties
acknowledge that Company will be acting on behalf of all the Depositors with respect to fulfilling
the Depositors’ obligations under this Agreement. Beneficiary acknowledges that Company may merge
or consolidate with one or more of the other Depositors to the extent permitted under Section 8.04
of the Credit Agreement and such merger or consolidation, in itself, shall not be a breach of this
Agreement or be a Release Condition.



ARTICLE 14 — CONFIDENTIALITY AND RECORD KEEPING




14.1 Confidentiality. Escrow Agent shall have the obligation to protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement or any subsequent
agreement between the Parties, Escrow Agent shall not disclose, transfer, make available or use the
Deposit Materials. Escrow Agent’s independent contractors are subject to appropriate
confidentiality restrictions with Escrow Agent. Escrow Agent shall not disclose the terms of this
Agreement to any third party. If Escrow Agent receives a subpoena or any other order from a court
or other judicial tribunal pertaining to the disclosure or release of the Deposit Materials, Escrow
Agent will immediately notify the Parties to this Agreement unless prohibited by law. It shall be
the responsibility of the Depositors and/or Beneficiary to challenge any such order; provided,
however, that Escrow Agent does not waive its rights to present its position with respect to any
such order. Escrow Agent will not be required to disobey any order from a court or other judicial
tribunal.



14.2 Status Reports. Escrow Agent shall provide to the Depositors and Beneficiary a
report profiling the account history semiannually or at the request of either Party.



ARTICLE 15 — [Intentionally Omitted]




ARTICLE 16 — AMENDMENTS TO THE STORAGE AGREEMENT




Capitalized terms used but not defined in this Article 5 shall have the meanings ascribed to
them in the Storage Agreement.



16.1 Amended Terms. The following sections of the Storage Agreement are hereby amended
as follows:




(a) All references to The Generations Network, Inc. in the Storage Agreement are hereby
struck, and each reference shall be replaced with the following language: “ANCESTRY.COM
OPERATIONS INC.”




(b) Section 2.E. of the Storage Agreement is hereby struck and replaced in its entirety
with the following language: “Strict admission and retrieval procedures will be adhered to
concerning access to the storage facility. At no time will Depositor’s records be
accessible to anyone but (i) the Depositor, his authorized agents as set forth on the ACCESS
AUTHORIZATION FORM, (ii) bonded personnel employed by Perpetual Storage, and (iii) as set
forth in that certain Escrow Agreement and Second Amendment to the Record Storage
Agreement among Depositors, Perpetual Storage and Bank of America, N.A., as administrative
agent (as amended or otherwise modified, the “Escrow Agreement”).


 


17









 






(c) Section 3 of the Storage Agreement is hereby struck and replaced in its entirety
with the following language: “This Agreement shall be for a term of three years from the
date hereof and shall be automatically renewed for successive terms of one year each
thereafter. Notwithstanding anything to the contrary herein, during the term of the Credit
Agreement neither Depositors nor Perpetual Storage shall (i) elect to terminate this
Agreement or (ii) elect not to renew this Agreement for any reason, without the prior
written consent of the Administrative Agent (as defined in the Credit Agreement).
Additionally, if during the term of the Credit Agreement, Depositor desires to terminate or
not renew this Agreement for any reason, it shall first enter into and establish an
alternative escrow under an escrow agreement and with an escrow agent, all of which shall be
reasonably satisfactory to the Administrative Agent (as defined in the Credit Agreement) in
its sole discretion. For the purposes of this Section 3, the term “Credit
Agreement” shall mean that certain Credit Agreement (as amended, restated, or modified
from time to time) among Ancestry.com Operations Inc., a Delaware corporation, as borrower,
the guarantors party thereto, the lenders from time to time party hereto, and Bank of
America, N.A., as administrative agent, swing line lender and l/c issuer.”




(d) Section 12 of the Storage Agreement is hereby struck and replaced in its entirety
with the following language:




“In the event of the nonpayment of fees owed to Perpetual Storage hereunder,
Perpetual Storage shall provide written notice of delinquency to Depositors and to
the Administrative Agent (as defined in the Credit Agreement). Each of Depositors
and the Administrative Agent shall have the right to make the delinquent payment(s)
to Perpetual Storage to cure the default. If the past due payment is not received
in full by Perpetual Storage within three (3) months of the date of such notice,
then Perpetual Storage shall have the right to terminate this Agreement at any time
thereafter by sending written notice of termination to Depositors and the
Administrative Agent.”




(e) The first sentence of Section 13 of the Storage Agreement is hereby struck and
replaced in its entirety with the following language: “Records shall be delivered or
transferred only (i) on receipt by Perpetual Storage of complete instructions properly
signed by Depositors or his authorized agent as specified on the ACCESS AUTHORIZATION FORM
or (ii) as set forth in the Escrow Agreement.”




(f) Section 19 of the Storage Agreement is hereby struck and replaced in its entirety
with the following language: “This Agreement shall be binding upon and is for the exclusive
benefit of the parties hereto and their respective heirs, personal representatives,
successors and assigns hereunder, and except for the Administrative Agent (as defined in the
Credit Agreement), which shall be an express third party beneficiary of this Agreement,
shall not be deemed to give, either express or implied, any legal or equitable right,
remedy, or claim to any other entity or person whatsoever. This Agreement may be modified
or amended only by a written amendment signed by all the parties hereto and by the
Administrative Agent.”




(g) A new Section 23 is hereby added to the Storage Agreement to read as follows: “23.
THIRD PARTY BENEFICIARY. The parties agree that the Administrative Agent (as defined in the
Credit Agreement) shall be a third party beneficiary under this Agreement.”


 


18









 





5.2 The parties hereto agree that in any conflict between the terms of the Storage Agreement
and this Agreement that the terms of this Agreement shall govern and control.



ARTICLE 17 — RELEASE OF DEPOSIT




17.1 Release Conditions. As used in this Agreement, “Release Condition” shall
mean the following:




(a) The occurrence of an Event of Default under the Credit Agreement; or




(b) Joint written instructions from the Depositors and Beneficiary.



17.2 Filing For Release. If a Release Condition has occurred, Beneficiary may provide
to Escrow Agent written notice of the occurrence of the Release Condition and a request for the
release of the Deposit Materials. Such notice shall be signed by the Beneficiary. Escrow Agent
shall have no duty to inquire or determine whether any Event of Default has occurred or whether
Administrative Agent is entitled to provide such notice to the Escrow Agent. Escrow Agent may rely
on notices and communications it believes in good faith to be genuine and given by the appropriate
party. Escrow Agent shall promptly provide a copy of the notice to the Depositors by commercial
express mail.



17.3 Release of Deposit. Upon receipt by the Escrow Agent of the written notice
described in Section 6.2, Escrow Agent shall promptly release all Deposit Materials to the
Beneficiary.



ARTICLE 18 — TERM AND TERMINATION




18.1 Term of Agreement. The term of this Agreement shall be for a period beginning on
the Effective Date and ending on the soonest to occur of (i) the date that the Credit Agreement has
terminated, (ii) the date that the Depositors and Beneficiary jointly instruct Escrow Agent in
writing that this Agreement is terminated and (iii) the date that all Deposit Materials held by
Escrow Agent are released to the Beneficiary in accordance with Section 6.3 (the “Term”).



18.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to Escrow
Agent, Escrow Agent shall provide written notice of delinquency to all Parties to this Agreement.
Any Party to this Agreement and the Required Lenders shall have the right to make the payment to
Escrow Agent to cure the default. If the past due payment is not received in full by Escrow Agent
within three (3) months of the date of such notice, then Escrow Agent shall have the right to
terminate this Agreement at any time thereafter by sending written notice of termination to all
Parties.



18.3 Disposition of Deposit Materials Upon Termination. Upon termination or expiration
of this Agreement, the Escrow Agent shall send the Company and the Beneficiary notice of such
termination (“Termination Notice”) stating that it shall deliver or make available the Deposit
Materials to Company within thirty (30) days from delivery of such Termination Notice unless the
Beneficiary notifies Escrow Agent and Company within such thirty (30) day period that either:




(a) all Obligations under the Loan Documents have not been paid in full; and an
alternative escrow under an escrow agreement and with an escrow agent, all of which is
satisfactory to Beneficiary in its sole discretion, has not been established pursuant to
Section 3 of the Storage Agreement as amended hereby; or




(b) a Release Condition has occurred.


 


19









 





If Beneficiary delivers notice to Escrow Agent within thirty (30) days of the Beneficiary’s receipt
of the Termination Notice that either clauses (a) or (b) of this Section 7.3 have occurred (“Notice
From Beneficiary”), then, Escrow Agent shall promptly release the Deposit Materials to Beneficiary.
If Beneficiary does not deliver such a notice within such thirty (30) day period, then Escrow
Agent shall release the Deposit Materials to the Company.



18.4 Survival of Terms Following Termination. Upon expiration or termination of this
Agreement, the following provisions of this Agreement shall survive:




(a) The obligations of confidentiality with respect to the Deposit Materials;




(b) The obligation to pay Escrow Agent any fees and expenses due;




(c) The provisions of Article 7; and




(d) Any provision in this Agreement which specifically states it survives the
expiration or termination of this Agreement.



ARTICLE 19 — ESCROW AGENT’S FEES




19.1 Fee Schedule. Escrow Agent will act under this Agreement without charge so long
as Depositors maintain a current Record Storage Agreement with Perpetual Storage and are current on
fees relating to that Record Storage Credit Agreement. The Depositors shall be responsible for
payment of all of the fees and expenses for the services of the Escrow Agent and shall promptly
reimburse the Beneficiary for all expenses incurred by it in connection with this Agreement.
Escrow Agent shall notify the Depositors of changes in Escrow Agent’s fees at least thirty (30)
days prior to any increase in fees. For any service not listed on Escrow Agent’s standard fee
schedule, Escrow Agent will provide a quote prior to rendering the service, if requested.



19.2 Payment Terms. Initial fees are due upon receipt of a signed contract or receipt
of the Deposit Materials whichever is earliest. Payments on all renewal and services invoices are
due net thirty (30) days from date of invoice. If invoiced fees are not paid, Escrow Agent may
terminate this Agreement in accordance with Section 7.2 herein.



ARTICLE 20 — LIABILITY AND DISPUTES




20.1 Dispute Resolution. Any dispute, difference or question relating to or arising
among any of the Parties concerning the construction, meaning, effect or implementation of this
Agreement or any Party hereof will be submitted to, and settled by arbitration by a single
arbitrator chosen by the American Arbitration Association in accordance with the Commercial Rules
of the American Arbitration Association. The arbitrator shall apply the laws of the State of New
York. Unless otherwise agreed by the Depositors and Beneficiary, arbitration will take place in
the State of New York. Any court having jurisdiction over the matter may enter judgment on the
award of the arbitrator. Service of a petition to confirm the arbitration award may be made by
First Class U.S. mail or by commercial express mail, to the attorney for the Party or, if
unrepresented, to the Party at the last known business address. If, however, any Depositors and/or
Beneficiary refuse to submit to arbitration, the matter shall not be submitted to arbitration and
Escrow Agent may submit the matter to any court of competent jurisdiction for an interpleader or
similar action. Unless adjudged otherwise, each Party shall pay its own costs of arbitration.


 


20









 





20.2.2 Controlling Law. This Agreement and the rights, duties and obligations of the
Parties is to be governed and construed in accordance with the laws of the State of New York,
without regard to its conflict of law provisions.



ARTICLE 21 — GENERAL PROVISIONS




21.1 Entire Agreement. This Agreement embodies the entire understanding among the
Parties with respect to its subject matter and supersedes all previous communications,
representations or understandings, either oral or written. No amendment or modification of this
Agreement shall be valid or binding unless signed by all the Parties hereto. Notwithstanding the
forgoing, if any of the terms of this Agreement are in direct contradiction to any of the terms of
the Credit Agreement or Security Agreement, such contradicting terms of this Agreement shall be
deemed void and the relevant terms of the Credit Agreement shall control.



21.2 Notices and Correspondence. All notices regarding Articles 6 and 7 herein and
any Deposit Materials shall be sent by commercial express or certified mail, return receipt
requested. All other correspondence, including invoices, payments, and other documents and
communications, shall be sent First Class U.S. Mail and given to the Parties at the addresses
specified in the attached Exhibit A. It shall be the responsibility of the Parties to notify each
other as provided in this Section in the event of a change of physical and e-mail addresses. The
Parties shall have the right to rely on the last known address of the other Parties. Any correctly
addressed notice or last known address of the other Parties that is relied on herein that is
refused, unclaimed, or undeliverable because of an act or omission of the Party to be notified as
provided herein shall be deemed effective as of the first date that said notice was refused,
unclaimed, or deemed undeliverable by the postal authorities by mail, through messenger or
commercial express delivery services.



21.3 Severability. In the event any provision of this Agreement is found to be
invalid or unenforceable, the Parties agree that unless it materially affects the entire intent and
purpose of this Agreement, such invalidity or unenforceability shall affect neither the validity of
this Agreement nor the remaining provisions herein, and the provision in question shall be deemed
to be replaced with a valid and enforceable provision most closely reflecting the intent and
purpose of the original provision.



21.4 Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the Parties.



21.5 Waiver. Any term of this Agreement may be waived by the Party entitled to the
benefits thereof, provided that any such waiver must be in writing and signed by the Party against
whom the enforcement of the waiver is sought. No waiver of any condition, or breach of any
provision of this Agreement, in any one or more instances, shall be deemed to be a further or
continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy
shall not be deemed the waiver of that right or remedy.



21.6 Regulations. The Depositors and Beneficiary are responsible for and warrant
compliance with all applicable laws, rules and regulations, including but not limited to customs
laws, import, export, and re-export laws and government regulations of any country from or to which
the Deposit Materials may be delivered in accordance with the provisions of this Agreement.



21.7 Third Party Rights. This Agreement is made solely for the benefit of the Parties
to this Agreement and the Lenders and their respective permitted successors and assigns, and no
other person or entity shall have or acquire any right by virtue of this Agreement unless otherwise
agreed to by all the Parties hereto.


 


21









 





21.8 Authority to Sign. Each of the Parties herein represents and warrants that the
execution, delivery, and performance of this Agreement has been duly authorized and signed by a
person who meets statutory or other binding approval to sign on behalf of its business organization
as named in this Agreement. Escrow Agent will be able to perform its obligations under this
agreement once Escrow Agent has received a fully executed agreement.



21.9 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one instrument.


 


22









 





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



	 	 	 	 	 	 	 	 	 	 	 	 	 
	DEPOSITORS:	 	BENEFICIARY:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ANCESTRY.COM OPERATIONS INC.	 	BANK OF AMERICA, N.A.,	 	 
	 	 	 	 	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ANCESTRY.COM INC.	 	ESCROW AGENT:	 	 
	 
	 	 	PERPETUAL STORAGE, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TGN SERVICES, LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 






 


23









 







EXHIBIT A to Escrow Agreement




DESIGNATED CONTACT




DESIGNATED CONTACT




Deposit Account Number 600654




	 	 	 
	Notices, deposit material returns and
communications to the Depositors should be
addressed to:

	 	Notices and communications to Beneficiary
should be addressed to:
	 
	 	 
	Company Name: Ancestry.com
Operations Inc.

	 	Brenda H. Little 
	Address: 360 West 4800 North

Provo, Utah
84604



Designated Contact: David Farnsworth

	 	Vice President
Agency Management

WA1-501-17-32

800 5th Avenue Floor 17
	Telephone: 801 705 7025

	 	Seattle WA 98104
	Facsimile: 801 705 7380

	 	Telephone: 206-358-0048
	Email: dfarnsworth@tgn.com

	 	Telecopier: 415-343-0557
	Verification Contact: same

	 	Electronic Mail: brenda.h.little@baml.com
	Telephone/E-mail: ________________________
	 	 
	 
	 	 
	Fees for this agreement will be paid
by Depositors
	 	 
	 
	 	 
	Invoices to the Depositors should be
addressed to:
	 	 
	 
	 	 
	Company Name: Ancestry.com
Operations Inc.
	 	 
	 
	 	 
	Address: 360 West 4800 North

Provo, Utah
84604
	 	 
	 
	 	 
	Billing Contact: Val Christensen

Telephone: 801 705 7913               

Facsimile: 801 705 7930              

Email: vchristensen@tgn.com          

P.O. # _______________________
	 	 






Requests from the Depositors or Beneficiary to change the designated contact should be given in
writing by the designated contact or an authorized employee of the Depositors or Beneficiary.