Exhibit 10.1


 


 




 


[Published CUSIP Number:                                    ]





 


 


CREDIT AGREEMENT


 


Dated as of March 17, 2006


 


among


 


UNIVISION COMMUNICATIONS INC.,


and


UNIVISION OF PUERTO RICO INC.


as the Borrowers,


 


CERTAIN DOMESTIC SUBSIDIARIES OF UNIVISION COMMUNICATIONS INC.,


as the Guarantors,


 


BANK OF AMERICA, N.A.,


as Administrative Agent and L/C Issuer,


 


CITIGROUP GLOBAL MARKETS INC.


as Syndication Agent,


 


and


 


THE OTHER LENDERS PARTY HERETO


 


Arranged By:


 


BANC OF AMERICA SECURITIES LLC,


and


CITIGROUP GLOBAL MARKETS INC.


as Joint Lead Arrangers and Book Managers


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive Provisions

  	
  19

  
	
  1.03

  	
  Accounting Terms

  	
  20

  
	
  1.04

  	
  Rounding

  	
  21

  
	
  1.05

  	
  Times of Day

  	
  21

  
	
  1.06

  	
  Letter of Credit Amounts

  	
  21

  
	
  1.07

  	
  Exchange Rates; Currency Equivalents

  	
  21

  
	
  1.08

  	
  Additional Alternative Currencies

  	
  22

  
	
  1.09

  	
  Change of Currency

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

  	
  22

  
	
  2.01

  	
  Revolving Loans

  	
  22

  
	
  2.02

  	
  Borrowings, Conversions and Continuations of Loans

  	
  23

  
	
  2.03

  	
  Letters of Credit

  	
  25

  
	
  2.04

  	
  Prepayments

  	
  33

  
	
  2.05

  	
  Termination or Reduction of Aggregate Revolving Commitments

  	
  33

  
	
  2.06

  	
  Repayment of Loans

  	
  34

  
	
  2.07

  	
  Interest

  	
  34

  
	
  2.08

  	
  Fees

  	
  34

  
	
  2.09

  	
  Computation of Interest and Fees

  	
  35

  
	
  2.10

  	
  Evidence of Debt

  	
  35

  
	
  2.11

  	
  Payments Generally; Administrative Agent’s Clawback

  	
  36

  
	
  2.12

  	
  Sharing of Payments by Lenders

  	
  37

  
	
  2.13

  	
  Concerning Joint and Several Liability of the Borrowers

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

  	
  39

  
	
  3.01

  	
  Taxes

  	
  39

  
	
  3.02

  	
  Illegality

  	
  41

  
	
  3.03

  	
  Inability to Determine Rates

  	
  42

  
	
  3.04

  	
  Increased Costs

  	
  42

  
	
  3.05

  	
  Compensation for Losses

  	
  43

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
  44

  
	
  3.07

  	
  Survival

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV GUARANTY

  	
  44

  
	
  4.01

  	
  The Guaranty

  	
  44

  
	
  4.02

  	
  Obligations Unconditional

  	
  45

  
	
  4.03

  	
  Reinstatement

  	
  46

  
	
  4.04

  	
  Certain Additional Waivers

  	
  46

  
	
  4.05

  	
  Remedies

  	
  46

  
	
  4.06

  	
  Rights of Contribution

  	
  46

  
	
  4.07

  	
  Guarantee of Payment; Continuing Guarantee

  	
  47

  
	
  4.08

  	
  Release and Discharge of Guaranty

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
  47

  
	
  5.01

  	
  Conditions of Initial Credit Extension

  	
  47

  
	
  5.02

  	
  Conditions to all Credit Extensions

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI REPRESENTATIONS AND WARRANTIES

  	
  49

  
	
  6.01

  	
  Existence, Qualification and Power

  	
  49

  
	
  6.02

  	
  Authorization; No Contravention

  	
  50

  



 


i

















 


	
  6.03

  	
  Governmental Authorization; Other Consents

  	
  50

  
	
  6.04

  	
  Binding Effect

  	
  50

  
	
  6.05

  	
  Financial Statements; No Material Adverse Effect; No Internal Control
  Event

  	
  50

  
	
  6.06

  	
  Litigation

  	
  51

  
	
  6.07

  	
  No Default

  	
  51

  
	
  6.08

  	
  Environmental Compliance

  	
  51

  
	
  6.09

  	
  Taxes

  	
  51

  
	
  6.10

  	
  ERISA Compliance

  	
  51

  
	
  6.11

  	
  Subsidiaries

  	
  52

  
	
  6.12

  	
  Margin Regulations; Investment Company Act

  	
  52

  
	
  6.13

  	
  Disclosure

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII AFFIRMATIVE COVENANTS

  	
  52

  
	
  7.01

  	
  Financial Statements

  	
  53

  
	
  7.02

  	
  Certificates; Other Information

  	
  54

  
	
  7.03

  	
  Notices

  	
  55

  
	
  7.04

  	
  Payment of Taxes

  	
  56

  
	
  7.05

  	
  Preservation of Existence

  	
  56

  
	
  7.06

  	
  Maintenance of Properties

  	
  56

  
	
  7.07

  	
  Maintenance of Insurance

  	
  57

  
	
  7.08

  	
  Compliance with Laws

  	
  57

  
	
  7.09

  	
  Books and Records

  	
  57

  
	
  7.10

  	
  Inspection Rights

  	
  57

  
	
  7.11

  	
  Additional Guarantors

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII NEGATIVE COVENANTS

  	
  58

  
	
  8.01

  	
  Liens

  	
  58

  
	
  8.02

  	
  Investments

  	
  59

  
	
  8.03

  	
  Indebtedness

  	
  60

  
	
  8.04

  	
  Fundamental Changes

  	
  60

  
	
  8.05

  	
  Restricted Payments

  	
  61

  
	
  8.06

  	
  Transactions with Affiliates

  	
  61

  
	
  8.07

  	
  Burdensome Agreements

  	
  61

  
	
  8.08

  	
  Use of Proceeds

  	
  61

  
	
  8.09

  	
  Financial Covenants

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX EVENTS OF DEFAULT AND REMEDIES

  	
  62

  
	
  9.01

  	
  Events of Default

  	
  62

  
	
  9.02

  	
  Remedies Upon Event of Default

  	
  64

  
	
  9.03

  	
  Application of Funds

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE X ADMINISTRATIVE AGENT

  	
  65

  
	
  10.01

  	
  Appointment and Authority

  	
  65

  
	
  10.02

  	
  Rights as a Lender

  	
  66

  
	
  10.03

  	
  Exculpatory Provisions

  	
  66

  
	
  10.04

  	
  Reliance by Administrative Agent

  	
  67

  
	
  10.05

  	
  Delegation of Duties

  	
  67

  
	
  10.06

  	
  Resignation of Administrative Agent

  	
  67

  
	
  10.07

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
  68

  
	
  10.08

  	
  No Other Duties; Etc.

  	
  68

  
	
  10.09

  	
  Administrative Agent May File Proofs of Claim

  	
  68

  
	
  10.10

  	
  Guaranty Matters

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI MISCELLANEOUS

  	
  69

  
	
  11.01

  	
  Amendments, Etc.

  	
  69

  
	
  11.02

  	
  Notices and Other Communications; Facsimile Copies

  	
  71

  



 


ii

















 


	
  11.03

  	
  No Waiver; Cumulative Remedies

  	
  72

  
	
  11.04

  	
  Expenses; Indemnity; and Damage Waiver

  	
  72

  
	
  11.05

  	
  Payments Set Aside

  	
  74

  
	
  11.06

  	
  Successors and Assigns

  	
  74

  
	
  11.07

  	
  Treatment of Certain Information; Confidentiality

  	
  78

  
	
  11.08

  	
  Set-off

  	
  79

  
	
  11.09

  	
  Interest Rate Limitation

  	
  79

  
	
  11.10

  	
  Counterparts; Integration; Effectiveness

  	
  79

  
	
  11.11

  	
  Survival of Representations and Warranties

  	
  79

  
	
  11.12

  	
  Severability

  	
  80

  
	
  11.13

  	
  Replacement of Lenders

  	
  80

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  81

  
	
  11.15

  	
  Waiver of Right to Trial by Jury

  	
  81

  
	
  11.16

  	
  California Judicial Reference

  	
  82

  
	
  11.17

  	
  No Advisory or Fiduciary Responsibility

  	
  82

  
	
  11.18

  	
  USA PATRIOT Act Notice

  	
  83

  
	
  11.19

  	
  Judgment Currency

  	
  83

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitments and
  Applicable Percentages

  	
   

  
	
  6.11

  	
  Subsidiaries

  	
   

  
	
  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

  	
   

  
	
  11.06

  	
  Processing and
  Recordation Fees

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.02

  	
  Form of
  Loan Notice

  	
   

  
	
  2.10(a)

  	
  Form of
  Note

  	
   

  
	
  5.01(b)

  	
  Form of
  Opinion of Counsel

  	
   

  
	
  7.02

  	
  Form of
  Compliance Certificate

  	
   

  
	
  7.11

  	
  Form of
  Joinder Agreement

  	
   

  
	
  11.06

  	
  Form of
  Assignment and Assumption

  	
   

  



 


iii

















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT is entered into as of March 17, 2006 among UNIVISION
COMMUNICATIONS INC., a Delaware corporation (the “Company”), and
UNIVISION OF PUERTO RICO INC., a Delaware corporation (the “Subsidiary
Borrower”, together with the Company, the “Borrowers” and each a “Borrower”),
the Guarantors (defined herein), the Lenders (defined herein) and BANK OF
AMERICA, N.A., as Administrative Agent and L/C Issuer.


 


The
Borrowers have requested that the Lenders provide $1,000,000,000 in 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:


 


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


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time notify to
the Company 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 initial amount of the
Aggregate Revolving Commitments in effect on the Closing Date is ONE BILLION
DOLLARS ($1,000,000,000).


 


“Agreement”
means this Credit Agreement.


 


“Alternative
Currency”  means each currency (other
than Dollars) that is approved in accordance with Section 1.08.


 


“Alternative
Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative
Currency as determined by the Administrative Agent or the L/C Issuer, as
applicable, at such time on the basis of the Spot Rate


 

















 


(determined as of the
most recent Revaluation Date) for the purchase of such Alternative Currency
with Dollars.


 


“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; 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 in effect on the Closing Date is set forth
opposite the name of such Lender on Schedule 2.01.


 


“Applicable
Rate” means the following percentages per annum, based upon the Debt Rating
as set forth below:


 


	
  Pricing

  Tier

  	
   

  	
  Debt Rating

  	
   

  	
  Facility Fee

  	
   

  	
  Utilization Fee

  	
   

  	
  Eurodollar Rate

  Loans

  	
   

  	
  Letters of Credit

  Fee

  	
   

  
	
  1

  	
   

  	
  3
  A- / A3

  	
   

  	
  0.060

  	
  %

  	
  0.075

  	
  %

  	
  0.19

  	
  %

  	
  0.19

  	
  %

  
	
  2

  	
   

  	
  BBB+ / Baa1

  	
   

  	
  0.080

  	
  %

  	
  0.100

  	
  %

  	
  0.22

  	
  %

  	
  0.22

  	
  %

  
	
  3

  	
   

  	
  BBB / Baa2

  	
   

  	
  0.100

  	
  %

  	
  0.125

  	
  %

  	
  0.30

  	
  %

  	
  0.30

  	
  %

  
	
  4

  	
   

  	
  BBB- / Baa3

  	
   

  	
  0.125

  	
  %

  	
  0.150

  	
  %

  	
  0.375

  	
  %

  	
  0.375

  	
  %

  
	
  5

  	
   

  	
  < BBB- / Baa3

  	
   

  	
  0.175

  	
  %

  	
  0.150

  	
  %

  	
  0.475

  	
  %

  	
  0.475

  	
  %

  



 


provided that (a) if the respective Debt Ratings is issued by the
foregoing rating agencies differ by one level, then the Pricing Tier for the
higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Tier
1 being the highest and the Debt Rating for Pricing Tier 5 being the lowest); (b) if
there is a split in Debt Ratings of more than one level, then the Pricing Tier
that is one level lower than the Pricing Tier of the higher Debt Rating shall
apply; (c) if the Company has only one Debt Rating, the Pricing Tier that
is one level lower than that of such Debt Rating shall apply; and (d) if
the Company does not have any Debt Rating, Pricing Tier 5 shall apply.  Initially, the Applicable Rate shall be set
at Pricing Tier 3.  Thereafter, each change in the Applicable
Rate resulting from a publicly announced change in the Debt Rating shall be
effective during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next such change.


 


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


 


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


 


“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 assignee (with the consent of any party whose consent is required by Section 11.06(b)),
and


 


2

















 


accepted by the
Administrative Agent, in substantially the form of Exhibit 11.06 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.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2005
and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of the Company and its Subsidiaries,
including the notes thereto.


 


“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 2.05,
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.


 


“BAS”
means Banc of America Securities LLC, in its capacity as joint lead arranger
and book manager.


 


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


 


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


 


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


 


3

















 


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


 


“Change of Control” means an event or series
of events by which (a) any “person” or “group” (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, whether or not applicable), other than a member of the Perenchio
Group, is or becomes the beneficial owner, directly or indirectly, of more than
50% of the total voting power of the Voting Stock of the Company, (b) occupation of
a majority of the seats (other than vacant seats) on the board of directors of
the Company (or any Person directly or indirectly Controlling the Company) by
Persons who were neither (i) nominated by the management of the Company or
by persons who were members of the board of directors as of the Closing Date or
members elected by a majority of such members nor (ii) appointed by
directors so nominated or (c) any Person or two or more Persons,
other than a member of the Perenchio Group, acting in concert shall have
acquired by contract or otherwise, the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Company, or control over the Voting Stock of the Company on a fully-diluted
basis (and taking into account all such Voting Stock that such Person or group
has the right to acquire pursuant to any option right) representing fifty (50%)
or more of the combined voting power of such Voting Stock.


 


“Closing
Date” means the date of this Agreement.


 


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


 


“Communications
Act” means the Communications Act of 1934 and the rules and
regulations issued thereunder.


 


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


 


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


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit 7.02.


 


“Consolidated
EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus
(a) 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 the
Company and its Subsidiaries for such period, (iii) the amount of
depreciation and amortization expense for such period, (iv) the cost
reduction plan charge of $30,289,000 in 2005 and (v) other non-cash
charges to the extent not representing an accrual or reserve for a future cash
expense minus (b) to the extent included in calculating such
Consolidated Net Income, other non-cash gains.


 


“Consolidated
Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to the sum of, without
duplication, (i) all interest, premium payments, debt discount, fees,
charges and related expenses in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP
(net of interest income), 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.


 


4

















 


“Consolidated
Interest 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 Company has delivered financial statements
pursuant to Section 7.01(a) or (b) to (b) Consolidated
Interest Charges for the period of the four fiscal quarters most recently ended
for which the Company has delivered financial statements pursuant to Section 7.01(a) or
(b).


 


“Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of (a) Funded
Indebtedness of the Company and its Subsidiaries on a consolidated basis as of
such date to (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended for which the Company
has delivered financial statements pursuant to Section 7.01(a) or
(b).


 


“Consolidated
Net Income” means, for any period, for the Company and its Subsidiaries on
a consolidated basis, the net income (or loss) of the Company and its
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that
period.


 


“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.


 


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


 


“Debt Rating” means, as of any date of
determination, the rating as determined by
either S&P or Moody’s (collectively, the “Debt Ratings”) of the
Company’s non-credit-enhanced, senior unsecured long-term debt.


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or 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) 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 any Lender that (a) has failed to fund any portion of
the Loans, participations in L/C Obligations required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder unless such failure has been cured, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute or unless such failure has been
cured, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.


 


5

















 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition of any property by the Company 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.


 


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


 


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


 


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


 


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


 


“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 Company, 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.


 


“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 Company 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).


 


6

















 


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


 


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


 


“Eurodollar
Rate” means, 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 (a) the Eurodollar Base Rate for such
Eurodollar Rate Loan for such Interest Period by (b) one minus the
Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest
Period.


 


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


 


“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” means each of the events specified in Section 9.01.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of a 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 or applicable Lending Office is located or by any
Governmental Authority solely as a result of a present or former connection
between such


 


7

















 


recipient and the
jurisdiction of such Governmental Authority other than any such connection that
would not have arisen but for such recipient having executed, delivered or
performed its obligations or received a payment under, or enforced, any of the
Loan Documents), (b) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which a Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Company under Section 11.13), any United
States withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with Section 3.01(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from a Borrower with respect to such withholding
tax pursuant to Section 3.01(a).


 


“FCC”
means the Federal Communications Commission or any successor thereto.


 


“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 February 10, 2006 among the
Company, the Administrative Agent and BAS.


 


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


 


“Foreign
Subsidiary” means any Subsidiary other than a Domestic Subsidiary.


 


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


 


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


 


“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 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 such Person (other than
customary


 


8

















 


reservations
or retentions of title under agreements with suppliers entered into in the ordinary
course of business);


 


(d)           all
unreimbursed drawings under standby letters of credit, 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 (i) 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 invoiced and
(ii) to the extent not constituting borrowed money, obligations
specifically with respect to the production, distribution and acquisition of
programming, talent, recorded music or publishing rights);


 


(f)            the
Attributable Indebtedness;


 


(g)           all
obligations of such Person to redeem preferred stock on or prior to the Maturity
Date, valued 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.


 


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


 


“Guarantee”
means, as to any Person, (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


 


9

















 


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 each Domestic Subsidiary of the Company identified as a “Guarantor” on
the signature pages hereto and each other Person that joins as a Guarantor
pursuant to Section 7.11, 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.


 


“Guaranty
Release Conditions” means each of the following conditions:


 


(a)           the
Administrative Agent shall have received evidence reasonably satisfactory to it
that the Company’s Debt Rating is BBB or better by S&P and Baa2 or better
by Moody’s;


 


(b)           no Default
shall exist;


 


(c)           all
Subsidiaries’ Guarantees of the Senior Notes shall have been (or
contemporaneously with the release of the Guaranty hereunder shall be)
released; and


 


(d)           a
Guarantee Trigger Event shall not have occurred after the conditions set forth
in clauses (a), (b) and (c) have been satisfied;


 


“Guaranty
Trigger Event” means that after the satisfaction of the condition set forth
in clause (a) of the definition of “Guaranty Release Conditions,” the
Company’s Debt Rating is below BBB by S&P or below Baa2 by Moody’s.


 


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


 


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


 


“Immaterial Subsidiary” mean any Subsidiary
(other than (a) the Subsidiary Borrower and (b) any Subsidiaries, the
only assets of which are Media Licenses) which has assets with a book value and
fair market value of less than $25,000,000 (and the aggregate amount of assets
of all such Immaterial Subsidiaries does not exceed $100,000,000) and are not
party to any material contracts.


 


“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:


 


10

















 


(a)           all
Funded Indebtedness;


 


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


 


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


 


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


 


(e)           all
Indebtedness of the types referred to in clauses (a) through (d) 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, unless such Indebtedness is expressly made
non-recourse to such Person.


 


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


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes and Other 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, 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, six or, to the
extent available to all Lenders, nine or twelve months thereafter, as selected
by a Borrower in its Loan Notice; provided that:


 


(i)            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;


 


(ii)           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


 


(iii)          no
Interest Period shall extend beyond the Maturity Date.


 


“Internal
Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Company’s
internal controls over financial reporting, in each case as described in the
Securities Laws.


 


11

















 


“Internal
Revenue Code” means the Internal Revenue Code of 1986.


 


“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 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.  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.


 


“IRS”
means the United States Internal Revenue Service.


 


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


 


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


 


“Joinder
Agreement” means a joinder agreement substantially in the form of Exhibit 7.11
executed and delivered by a Domestic Subsidiary in accordance with the
provisions of Section 7.11.


 


“Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, 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, individually or collectively as the context may require, (a) Bank
of America in its capacity as issuer of Letters of Credit hereunder, (b) to
the extent that a prospective foreign beneficiary of a Letter of Credit refuses
to accept a Letter of Credit issued by Bank of America, any other Lender that
agrees with the Company to issue Letters of Credit hereunder to such foreign
beneficiary provided  that (i) the Company and such Lender
notify the Administrative Agent and (ii) not more than


 


12

















 


two Lenders may be
selected by the Company pursuant to this clause (b), or (c) 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 each other Person that becomes a “Lender” in accordance with this
Agreement, their successors and assigns.


 


“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 Company and the
Administrative Agent.


 


“Letter
of Credit” means any standby letter of credit issued hereunder.  Letters of Credit may be issued in Dollars or
in an Alternative Currency.


 


“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(i).


 


“Letter
of Credit Sublimit” means an amount equal to the lesser of (a) the
Aggregate Revolving Commitments and (b) $100,000,000.  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 a Borrower under Article II
in the form of a Revolving Loan.


 


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


 


“Loan
Notice” means a notice of (a) a Borrowing of Revolving 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 2.02.


 


13

















 


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


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, assets, liabilities, operations or financial
condition of the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Company or the Loan Parties taken as
a whole to perform its or their material obligations under any Loan Document;
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.


 


“Maturity
Date” means March 17, 2011; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.


 


“Media
License” means any franchise, license, permit, certificate, ordinance,
approval or other authorization, or any renewal or extension thereof, from any
federal, state or local government or governmental agency, department or body
that is necessary for the broadcast or other operations of the Company or any
of its Subsidiaries.


 


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


 


“Multiemployer
Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Company 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.


 


“Note”
has the meaning specified in Section 2.10(a).


 


“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 entered into in the
ordinary course of business and not for speculative purposes 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
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.


 


14

















 


“Outstanding
Amount” means (i) 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 (ii) with
respect to any L/C Obligations on any date, the Dollar Equivalent of the
aggregate outstanding amount of such L/C Obligations on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements by the Borrowers of Unreimbursed Amounts.


 


“Overnight
Rate”  means, for any day, (a) with
respect to any amount denominated in Dollars, the Federal Funds Rate and (b) with
respect to any amount denominated in an Alternative Currency, the rate of
interest per annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with respect to which
such rate is being determined, would be offered for such day by a branch or
Affiliate of Bank of America in the applicable offshore interbank market for
such currency to major banks in such interbank market.


 


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


 


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


 


“PCAOB”
means the Public Company Accounting Oversight Board.


 


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


 


“Perenchio Group” means (a) A.
Jerrold Perenchio (“Perenchio”),
(b) Perenchio’s spouse and lineal descendants, (c) Perenchio’s
personal representatives and heirs, (d) any trustee of any trust created
primarily for the benefit of any, some or all of such spouse and lineal
descendants or of any revocable trust created by Perenchio, (e) such
trust, (f) following the death of Perenchio, all beneficiaries under such
trust, (g) any entity, all of the equity of which is directly or
indirectly owned by any of the foregoing which is not an Affiliate of any other
Person and (h) any Affiliate of Perenchio.


 


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


 


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


 


“Platform”
has the meaning specified in Section 7.02.


 


“Pro
Forma Basis” means, for purposes of calculating the financial covenants set
forth in Section 8.09, that any material Disposition, Restricted
Payment or material acquisition 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 Company was required to deliver financial
statements pursuant to Section 7.01(a) or (b).  In connection with the foregoing, (a) income
statement and cash flow statement items (whether positive or negative)
attributable to any property Disposed of in such material Disposition shall


 


15

















 


be excluded to the extent
relating to any period occurring prior to the date of such transaction, (b) any
Indebtedness which is retired shall be excluded and deemed to have been retired
as of the first day of the applicable period, (c) with respect to any material
acquisition, (i) 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 the Company 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)  pro forma adjustments arising out of events which are directly
attributable to such acquisition may be included so long as such adjustments
are factually supportable and are expected to have a continuing impact, in each
case as determined on a basis consistent with Article 11 of Regulation S-X
of the Securities Act of 1933, as interpreted by the Staff of the Securities
and Exchange Commission and (c) any Indebtedness incurred or
assumed by the Company or any Subsidiary (including the Person or property
acquired) in connection with such transaction and any Indebtedness of the
Person or property acquired in any such transaction which is not retired 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.  For
purposes of this definition (1) ”material Disposition” means any
Disposition of assets for aggregate consideration paid to the Company and its
Subsidiaries exceeding $150,000,000 and (2) ”material acquisition” means
any transaction of the type described in clause (c) of the definition of “Investment”
in which the aggregate consideration paid by the Company and its Subsidiaries
exceeds $150,000,000.


 


“Program
License Agreements” means, collectively, (i) that certain Second
Amended and Restated Program License Agreement dated as of December 19,
2001, between Televisa Internacional, S.A. de C.V., a Mexican corporation (“Televisa”),
and the Company, (ii) that certain Second Amended and Restated Program
License Agreement dated as of December 19, 2001, between Venevision
International Corporation, a Delaware corporation (“Venevision”), and the
Company and (iii) the program license agreements entered into or to be
entered into by Puerto Rico Opco and (if applicable) the Company with Televisa
and/or Venevision (or affiliates thereof) with respect to licensing of
programming to the television stations owned by Puerto Rico Opco, and the
guaranties of the obligations of any such affiliates thereunder by Televisa
and/or Venevision, as the case may be.


 


“Puerto
Rico Opco” means Univision Puerto Rico Station Operating Company, a
Delaware corporation.


 


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


 


“Registered
Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Company as prescribed by the Securities Laws.


 


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


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 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 and (b) with respect to
an L/C Credit Extension, a Letter of Credit Application.


 


16

















 


“Required
Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations
and participations therein or (b) 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.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, chief accounting officer, treasurer, assistant treasurer or controller
of a Loan Party and any other officer of the applicable Loan Party so
designated by any of the foregoing officers in a notice to the Administrative
Agent.  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 the Company
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 Company’
stockholders, partners or members (or the equivalent Person thereof), or any
setting apart of funds or property for any of the foregoing.


 


“Revaluation
Date” means each of the following:  (a) each
date of issuance of a Letter of Credit denominated in an Alternative Currency, (b) each
date of an amendment of any such Letter of Credit having the effect of
increasing the amount thereof (solely with respect to the increased amount), (c) each
date of any payment by the L/C Issuer under any Letter of Credit denominated in
an Alternative Currency, and (iv) such
additional dates as the Administrative Agent or the L/C Issuer shall determine
or the Required Lenders shall require.


 


“Revolving
Commitment” means, as to each Lender, its obligation to (a) make
Revolving Loans to a Borrower pursuant to Section 2.01 and (b) purchase
participations in L/C Obligations, 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 or in any documentation executed by
such Lender pursuant to Section 2.01(b), 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(a).


 


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


 


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


 


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002.


 


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


 


17

















 


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the PCAOB.


 


“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.


 


“Senior
Notes” means the Company’s 7.85% senior notes due 2011 with a face value of
$500,000,000 and the Company’s three-, four- and five-year senior notes due
2006, 2007 and 2008 with an aggregate face value of $700,000,000 (and any
refinancings thereof).


 


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


 


“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 the Company.


 


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


 


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


 


“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.


 


18

















 


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


 


“Synthetic
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, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


 


“Threshold
Amount” means $75,000,000.


 


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


 


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


 


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


 


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plan’s assets, determined in accordance with the assumptions used for funding
that Pension Plan pursuant to Section 412 of the Internal Revenue Code for
the applicable plan year.


 


“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.


 


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:


 


19

















 


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


 


(b)           Changes
in GAAP.  The Company 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(b). 
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
Company or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP; 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 Company shall provide to the Administrative
Agent and the Lenders financial statements and other


 


20

















 


documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.


 


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


 


1.04         Rounding.


 


Any financial ratios required to be maintained by
the Company 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 Eastern 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 Dollar Equivalent of 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 Dollar Equivalent of 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.


 


1.07         Exchange Rates; Currency Equivalents.


 


(a)           The Administrative Agent or the L/C Issuer
shall determine as of each Revaluation Date the Spot Rates to be used for
calculating Dollar Equivalent amounts of Letters of Credit and Outstanding
Amounts denominated in an Alternative Currency. 
Such Spot Rates shall be effective as of each such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur.  Except as otherwise expressly provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined
by the Administrative Agent or the L/C Issuer, as applicable.


 


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


 


21

















 


1.08         Additional Alternative Currencies.


 


(a)           The Company may from time to time request
that Letters of Credit be issued in a currency other than those specifically
listed in the definition of “Alternative Currency” (subject to the approval of
the Administrative Agent and the L/C Issuer); provided that such requested
currency is a lawful currency that is readily available and freely transferable
and convertible into Dollars.


 


(b)           Any such request shall be made to the
Administrative Agent, and the Administrative Agent shall promptly notify the
L/C Issuer thereof.  The L/C Issuer shall
notify the Administrative Agent, not later than 11:00 a.m., ten Business
Days after receipt of such request whether it consents, in its sole discretion,
to the issuance of Letters of Credit in such requested currency.


 


(c)           Any failure by the L/C Issuer to respond to
such request within the time period specified in the preceding sentence shall
be deemed to be a refusal by the L/C Issuer to permit Letters of Credit to be
issued in such requested currency.  If
the Administrative Agent and the L/C Issuer consent to the issuance of Letters
of Credit in such requested currency, the Administrative Agent shall so notify
the Company and such currency shall thereupon be deemed for all purposes to be
an Alternative Currency hereunder for the purposes of any Letter of Credit
issuances.  If the Administrative Agent
shall fail to obtain consent to any request for an additional currency under
this Section 1.08, the Administrative Agent shall promptly so notify the
Company.


 


1.09         Change of Currency.


 


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


 


ARTICLE II


 


THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01         Revolving Loans.


 


(a)           Revolving
Loans.  Subject to the terms and
conditions set forth herein, each Lender severally agrees to make loans (each
such loan, a “Revolving Loan”) to the Borrowers 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, (i) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments, (ii) the Total Revolving Outstandings
attributable to the Subsidiary Borrower shall not exceed the Subsidiary
Borrower Sublimit and (iii) 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, 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 Borrowers may borrow under this Section 2.01,
prepay under Section 2.04, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein, provided, however, all
Borrowings made on the Closing Date shall be made as Base Rate Loans.


 


(b)           Increases
of the Aggregate Revolving Commitments. 
The Company shall have the right, upon at least fifteen (15) Business
Days’ prior written notice to the Administrative Agent, to increase the
Aggregate Revolving Commitments by up to $500,000,000 in the aggregate in one
or more increases, at


 


22

















 


any time prior to the
date that is six (6) months prior to the Maturity Date, subject, however,
in any such case, to satisfaction of the following conditions precedent:


 


(i)            the
Aggregate Revolving Commitments shall not exceed $1,500,000,000 without the
consent of the Required Lenders;


 


(ii)           no Default
shall have occurred and be continuing on the date on which such increase is to
become effective;


 


(iii)          the
representations and warranties set forth in Article VI shall be
true and correct in all material respects on and as of the date on which such
increase is to become effective, 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 2.01(b), 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) of Section 7.01;


 


(iv)          such
increase shall be in a minimum amount of $10,000,000 and in integral multiples
of $5,000,000 in excess thereof;


 


(v)           such
requested increase shall only be effective upon receipt by the Administrative
Agent of (A) additional commitments in a corresponding amount of such
requested increase from either existing Lenders and/or one or more other
institutions that qualify as an Eligible Assignee (it being understood and
agreed that no existing Lender shall be required to provide an additional
commitment) and (B) documentation from each institution providing an
additional commitment evidencing their commitment and their obligations under
this Agreement in form and substance acceptable to the Administrative Agent;


 


(vi)          the
Administrative Agent shall have received all documents (including resolutions
of the board of directors of the Borrowers) it may reasonably request relating
to the corporate or other necessary authority for and the validity of such
increase in the Aggregate Revolving Commitments, and any other matters relevant
thereto, all in form and substance reasonably satisfactory to the
Administrative Agent; and


 


(vii)         if
any Revolving Loans are outstanding at the time of the increase in the
Aggregate Revolving Commitments, the Borrowers shall, if applicable, prepay one
or more existing Revolving Loans (such prepayment to be subject to Section 3.05)
in an amount necessary such that after giving effect to the increase in the
Aggregate Revolving Commitments, each Lender will hold its pro rata share
(based on its Applicable Percentage of the increased Aggregate Revolving
Commitments) of outstanding Revolving 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 a 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 a 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


 


23

















 


Responsible Officer of
the applicable 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 Section 2.03(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.  Each Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Borrowing,
a conversion of Loans from one Type to the other, or a continuation of
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
a Borrower fails to specify a Type of a Loan in a Loan Notice or if a 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 a 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 a 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
applicable Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of such Borrower on the books of Bank
of America with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by such 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 such Borrower as provided above.


 


(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 Company 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 Company 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 ten Interest Periods in effect.


 


24

















 


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 in Dollars or in one or more Alternative Currencies for the account of
the Borrowers or any of their 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 Borrowers or their Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (w) the Total Revolving Outstandings shall not exceed the Aggregate
Revolving Commitments, (x) the Total Revolving Outstandings attributable to the
Subsidiary Borrower shall not exceed the Subsidiary Borrower Sublimit, (y) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender’s Applicable Percentage multiplied by the Outstanding Amount of all
L/C Obligations, 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 a
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by such 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, each Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly such
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.


 


(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;


 


25

















 


(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 $500,000;


 


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


 


(E)           such
Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder;


 


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


 


(G)           a
default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrowers or such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender (which
may include depositing Cash Collateral in an amount equal to the Defaulting
Lender’s Applicable Percentage of such Letter of Credit).


 


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


 


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


 


(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 a 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 such
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 two (2) 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 or such later date as the L/C
Issuer may determine in its sole discretion with respect to any Letter of
Credit denominated in an Alternative Currency) prior to


 


26

















 


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 and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may reasonably require. 
In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (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 reasonably require. 
Additionally, the Borrowers shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may reasonably
require.


 


(ii)           Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from a 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 Section 5.02 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
applicable 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
a Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of
Credit must permit the L/C Issuer to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer,
the applicable 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
reasonably determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause (ii) or
(iii) of Section 2.03(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the day
that is five Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Lenders have elected not to permit
such extension or (2) from the Administrative Agent, any Lender or a
Borrower that one or more of the


 


27

















 


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 applicable 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 Borrowers and the Administrative Agent thereof.  In the case of a Letter of Credit denominated
in an Alternative Currency, the Company shall reimburse the L/C Issuer in such
Alternative Currency, unless (A) the L/C Issuer (at its option) shall have
specified in such notice that it will require reimbursement in Dollars, or (B) in
the absence of any such requirement for reimbursement in Dollars, the Borrowers
shall have notified the L/C Issuer promptly following receipt of the notice of
drawing that the Borrowers will reimburse the L/C Issuer in Dollars.  In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the L/C Issuer shall notify the Borrowers of the Dollar Equivalent of
the amount of the drawing promptly following the determination thereof.  Not later than 2:00 p.m. on the date of
any payment by the L/C Issuer under a Letter of Credit to be reimbursed in
Dollars or at the Applicable Time on the date of any payment by the L/C Issuer
under a Letter of Credit to be reimbursed in an Alternative Currency (each such
date, an “Honor Date”), the Borrowers shall reimburse the L/C Issuer directly
in an amount equal to the amount of such drawing; provided  that
the Borrowers have received notice of such payment by 11:00 a.m. (or three
hours prior to the Applicable Time in the case of any payment under a Letter of
Credit to be reimbursed in an Alternative Currency) on such Honor Date,
otherwise the Borrowers shall make such payment not later than 11:00 a.m. (or
three hours prior to the Applicable Time in the case of any payment under a
Letter of Credit to be reimbursed in an Alternative Currency) on the Business
Day following the date on which the Borrowers receive such notice (together
with interest thereon).  In the case of a
Letter of Credit denominated in Dollars, the Borrowers shall reimburse the L/C
Issuer in Dollars.  If the Borrowers fail
to so reimburse the L/C Issuer by such time, the L/C Issuer shall notify the
Administrative Agent whereupon 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 Borrowers
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 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 multiplied by 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


 


28

















 


that
so makes funds available shall be deemed to have made a Base Rate Loan to the
Borrowers in such amount.  The
Administrative Agent shall remit the funds so received to the L/C Issuer in
Dollars, or if requested by the L/C Issuer pursuant to the provisions of Section 2.03(c)(i),
the equivalent amount thereof in an Alternative Currency as determined by the
Administrative Agent at such time on the basis of the Spot Rate (determined as
of such finding date) for the purchase of such Alternative Currency with
Dollars.


 


(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 Borrowers 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 Borrowers
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 Borrowers of a Loan Notice). 
No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrowers 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), 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 Overnight
Rate and a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing.  If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Revolving Loan included in the relevant Borrowing or
L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  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 demonstrable error.


 


29

















 


(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 Borrowers 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 in the
same funds as those received by the Administrative Agent.


 


(ii)           If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 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
Borrowers 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 a
Borrower or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;


 


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


 


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


 


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


 


30

















 


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


 


provided that nothing in this Section 2.03(e) shall be deemed
a waiver of (A) any rights of the Borrowers to the extent such waiver is
not permitted under applicable Law or (B) the provisos to the third and
fourth sentences in Section 2.03(f).


 


The
applicable 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 such Borrower’s instructions or other irregularity, such
Borrower will promptly notify the L/C Issuer. 
The applicable Borrower shall be conclusively deemed to have waived any
such claim against the L/C Issuer and its correspondents unless such notice is
given as aforesaid.


 


(f)            Role
of L/C Issuer.  Each Lender and each
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 Borrowers hereby
assume 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 Borrowers’
pursuing such rights and remedies as they 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 Borrowers may have a claim against the L/C Issuer, and the L/C Issuer may
be liable to the Borrowers, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the
Borrowers which the Borrowers prove 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.  The L/C Issuer will notify the Administrative
Agent on a monthly basis of the L/C Obligations with respect to Letters of
Credit issued by it.


 


(g)           Cash
Collateral.


 


(i)            Upon
the request of the Administrative Agent, (A) if the L/C Issuer has honored
any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an


 


31

















 


L/C
Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrowers shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations.


 


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


 


(iii)          Sections
2.04 and 9.02(c) set forth certain additional requirements to
deliver Cash Collateral hereunder.  For
purposes of this Section 2.03, Section 2.04 and Section 9.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders).  Derivatives of such
term have corresponding meanings.  The
Borrowers hereby grant to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.


 


(h)           Applicability
of ISP.  Unless otherwise expressly
agreed by the L/C Issuer and the applicable Borrower when a Letter of Credit is
issued the rules of the ISP shall apply to each Letter of Credit.


 


(i)            Letter
of Credit Fees.  The Borrowers 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”) equal to the Applicable Rate times the Dollar Equivalent of
the daily maximum amount available to be drawn under such Letter of
Credit.  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 standby 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, if (i) an
Event of Default exists under clause (i) of Section 9.01(a) or
(ii) upon the request of the Required Lenders, an Event of Default exists
under clause (ii) of Section 9.01(a), then the Letter of
Credit Fees 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.


 


(j)            Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrowers shall pay directly to the L/C Issuer for its own account a fronting
fee in Dollars with respect to each Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the Dollar Equivalent 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 Letter
of Credit 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


 


32

















 


Letter of Credit shall be
determined in accordance with Section 1.06.  In addition, the Borrowers 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.


 


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


 


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


 


2.04         Prepayments.


 


(a)           Voluntary
Prepayments.  A Borrower may, upon
notice from such 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 $1,000,000 or a whole multiple of $500,000 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 and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s)
of such Loans.  The Administrative Agent
will promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by a Borrower, such
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together with
any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(b)           Mandatory
Prepayments.  If for any reason the
Total Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, the Borrowers shall immediately prepay Revolving
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; provided, however, that a Borrower shall
not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b)
unless after the prepayment in full of the Revolving Loans the Total Revolving
Outstandings exceed the Aggregate Revolving Commitments then in effect.


 


2.05         Termination or Reduction of Aggregate Revolving
Commitments.


 


The
Company 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 and L/C Obligations; provided that (a) 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, (b) any
such partial reduction shall be in an


 


33

















 


aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof and (c) if,
after giving effect to any reduction of the Aggregate Revolving Commitments or
the Letter of Credit Sublimit, the Subsidiary Borrower Sublimit exceeds the
amount of the Aggregate Revolving Commitments, such sublimit shall be
automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate
Revolving Commitments.  Any reduction of
the Aggregate Revolving Commitments shall be applied to the Revolving
Commitment of each Lender according to its Applicable Percentage.  All fees accrued with respect thereto until
the effective date of any termination of the Aggregate Revolving Commitments
shall be paid on the effective date of such termination.


 


2.06         Repayment of Loans.


 


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


 


2.07         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; and (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.


 


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


 


(iii)          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.


 


2.08         Fees.


 


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


 


(a)           Facility Fee.  The
Company shall pay to the Administrative Agent for the account of each Lender in
accordance with its Applicable Percentage, a facility fee equal to the
Applicable Rate times the actual daily amount of the Aggregate Revolving
Commitments (or, if the Aggregate Revolving Commitments have terminated, on the
Outstanding Amount of all Revolving Loans and L/C Obligations), regardless of
usage.  The facility fee shall accrue at
all


 


34

















 


times during the Availability Period (and thereafter
so long as any Revolving Loans or L/C Obligations remain outstanding),
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 last day of the
Availability Period (and, if applicable, thereafter on demand).  The facility fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.


 


(b)           Utilization Fees.  The
Company shall pay to the Administrative Agent for the account of each Lender in
accordance with its Applicable Percentage, a utilization fee equal to the
Applicable Rate times the Total Revolving Outstandings on each day that
the Total Revolving Outstandings exceed 50% of the actual daily amount of the
Aggregate Revolving Commitments then in effect (or, if terminated, in effect
immediately prior to such termination). 
The utilization fee 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 last day
of the Availability Period (and, if applicable, thereafter on demand).  The utilization fee shall be calculated
quarterly in arrears and if there is any change in the Applicable Rate during
any quarter, the daily amount shall be computed and multiplied by the
Applicable Rate for each period during which such Applicable Rate was in
effect.  The utilization fee shall accrue
at all times, including at any time during which one or more of the conditions
in Article V is not met.


 


(c)           Other
Fees.  The Company shall pay to BAS
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.


 


2.09         Computation of Interest and Fees.


 


All
computations of interest for Base Rate Loans when the Base Rate is determined
by Bank of America’s “prime rate” shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  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 2.11(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 demonstrable error.


 


2.10         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 demonstrable error of the amount of the Credit Extensions
made by the Lenders to the Borrowers 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
Borrowers 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


 


35

















 


accounts and records of
the Administrative Agent shall control in the absence of demonstrable
error.  Upon the request of any Lender
made through the Administrative Agent, the Borrowers 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 be in the
form of Exhibit 2.10(a) (a “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.


 


(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. 
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 demonstrable error.


 


2.11         Payments Generally; Administrative Agent’s Clawback.


 


(a)           General.  All payments to be made by the Borrowers
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrowers 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 Same Day Funds not later than 2:00 p.m. on the date
specified herein.  The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage (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. in the case of payment in Dollars or (ii) after
the Applicable Time specified by the Administrative Agent in the case of
payments in an Alternative Currency shall, in each case, be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.  Subject to the
definition of “Interest Period”, if any payment to be made by the Borrowers
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 applicable
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
Borrowers 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 applicable Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrowers,
the interest rate applicable to Base Rate Loans.  If the Borrowers and such Lender shall pay
such interest to the Administrative Agent for the same


 


36

















 


or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrowers the amount of such interest paid by the Borrowers 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 Borrowers shall be without
prejudice to any claim the Borrowers may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


(ii)           Payments
by Borrowers; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have
received notice from the Borrowers 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 Borrowers will not make such payment, the
Administrative Agent may assume that the Borrowers have 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 Borrowers has
not in fact made such payment, then each of the Lenders or the L/C Issuer, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the L/C Issuer,
in Same Day Funds with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Overnight 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 Borrowers with respect to any amount owing under this subsection (b) shall
be conclusive, absent demonstrable 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 applicable 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 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 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 (i) 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 or (ii) any Lender (other than the L/C Issuer with respect to
Letters of Credit denominated in an Alternative Currency) to make any payments
or Loans in any currency other than Dollars.


 


2.12         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 held by it resulting in
such Lender’s receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than its pro
rata share thereof


 


37

















 


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 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


 


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


 


2.13         Concerning Joint and Several Liability of the
Borrowers.


 


(a)           Each
of the Borrowers is accepting joint and several liability hereunder in
consideration of the financial accommodation to be provided by the Lenders
under this Agreement and the other Loan Documents, for the mutual benefit,
directly and indirectly, of each of the Borrowers and in consideration of the
undertakings of each of the Borrowers to accept joint and several liability for
the obligations of each of them.


 


(b)           Each
Borrower shall be jointly and severally liable for all amounts due to the
Lenders under this Agreement and the other Loan Documents, regardless of which
Borrower actually receives Loans or other Credit Extensions hereunder or the
amount of such Loans or other Credit Extensions received or the manner in which
the Lenders account for such Loans or other Credit Extensions on its books and
records.  Each Borrower’s Obligations
with respect to Loans or other Credit Extensions made to it, and each Borrower’s
Obligations arising as a result of the joint and several liability of such
Borrower hereunder, with respect to Loans or other Credit Extensions made to
the other Borrower hereunder, shall be separate and distinct obligations, but
all such Obligations shall be primary obligations of each Borrower.


 


(c)           Each
Borrower’s Obligations arising as a result of the joint and several liability
of such Borrower hereunder with respect to Loans or other Credit Extensions
made to the other Borrower hereunder shall, to the fullest extent permitted by
law, be unconditional irrespective of (i) the validity or enforceability,
avoidance or subordination of the Obligations of the other Borrower or of any
promissory note or other document evidencing all or any part of the Obligations
of the other Borrower, (ii) the absence of any attempt to collect the
Obligations from the other Borrower, any other guarantor, or any other security
therefor, or the absence of any other action to enforce the same, (iii) the
waiver, consent, extension, forbearance or granting of any indulgence by the
Administrative Agent or the Lenders with respect to any provision of any
instrument evidencing the Obligations of the other Borrower, or any part


 


38

















 


thereof, or any other
agreement now or hereafter executed by the other Borrower and delivered to the
Administrative Agent or the Lenders, (iv) the failure by the
Administrative Agent or the Lenders to take any steps to perfect and maintain
their security interest in, or to preserve its rights to, any security or
collateral for the Obligations of the other Borrower, (v) the
Administrative Agent’s or any Lender’s election, in any proceeding instituted
under the Bankruptcy Code of the United States, of the application of Section 1111(b)(2) of
the Bankruptcy Code of the United States, (vi) any borrowing or grant of a
security interest by the other Borrower, as Debtor In Possession under Section 364
of the Bankruptcy Code of the United States, (vii) the disallowance of all
or any portion of the Administrative Agent’s or any Lender’s claim(s) for the repayment
of the Obligations of the other Borrower under Section 502 of the
Bankruptcy Code of the United States, or (viii) any other circumstances
which might constitute a legal or equitable discharge or defense of a guarantor
or of the other Borrower.  With respect
to each Borrower’s Obligations arising as a result of the joint and several
liability of such Borrower hereunder with respect to Loans or other Credit
Extensions made to the other Borrower hereunder, such Borrower waives, until
the Obligations (other than inchoate indemnity obligations and any other
obligations which, by their terms, are to survive the termination of this
Agreement) shall have been paid in full and this Agreement and the other Loan
Documents shall have been terminated, any right to enforce any right of
subrogation or any remedy which the Administrative Agent or any Lender now has
or may hereafter have against such Borrower, any endorser or any guarantor of
all or any part of the Obligations, and any benefit of, and any right to participate
in, any security or collateral given to the Administrative Agent or any Lender
to secure payment of the Obligations or any other liability of the Borrowers to
the Administrative Agent or the Lenders.


 


(d)           Upon
the occurrence and during the continuation of any Event of Default, the Lenders
may proceed directly and at once, without notice, against any Borrower to
collect and recover the full amount, or any portion of the Obligations, without
first proceeding against the other Borrower or any other Person, or against any
security or collateral for the Obligations. 
Each Borrower consents and agrees that the Lenders shall be under no
obligation to marshal any assets in favor of any Borrower or against or in payment
of any or all of the Obligations.


 


(e)           Notwithstanding
any provision to the contrary contained herein or in any other of the Loan
Documents or Swap Contracts, the obligations of each Borrower hereunder shall
be limited to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance under Section 548 of
the Bankruptcy Code of the United States or any comparable provisions of any
applicable Debtor Relief Law.


 


ARTICLE III


 


TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01         Taxes.


 


(a)           Payments
Free of Taxes.  Any and all payments
by or on account of any obligation of the Loan Parties hereunder or under any
other Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if
any Loan Party shall be required by applicable law to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make such deductions and (iii) such
Loan Party shall


 


39

















 


timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.


 


(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)           Indemnification
by the Loan Parties.  The Loan
Parties shall indemnify the Administrative Agent, each Lender and the L/C
Issuer, 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)
paid by the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate setting forth
in reasonable detail the amount of such payment or liability delivered to the
Company 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 demonstrable error.


 


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


 


(e)           Status
of Lenders.  In the event that a
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Company 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 Company or the Administrative Agent,
but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:


 


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


 


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


 


(iii)          in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the 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 Company 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) duly completed copies of Internal Revenue Service Form W-8BEN, or


 


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


 


Each
Lender that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code shall deliver, upon request of a Borrower or the Administrative
Agent two duly signed completed


 


40

















 


copies of IRS Form W-9.  If such Lender fails to deliver such forms,
then the Borrowers or the Administrative Agent may withhold from any payment to
such Lender an amount equivalent to the applicable backup withholding tax
imposed by the Code.  The Borrowers shall
not be required to pay any additional or indemnification amounts under this
Agreement with respect to any backup withholding taxes that would not have been
imposed with respect to any payment thereunder but for a failure by a Lender to
comply with its obligations under this paragraph.


 


In the
event that a Borrower is resident in or conducts business in Puerto Rico, each
Lender that is not a resident of Puerto Rico for Puerto Rican tax purposes
shall file any certificate or document reasonably requested by such Borrower
and, when prescribed by applicable law and reasonably requested by such
Borrower, update or renew any such certificate or document, pursuant to any
applicable law or regulation, if such filing (i) would eliminate or reduce
the amount of withholding taxes imposed by Puerto Rico with respect to any
payment hereunder and (ii) would not, in the sole discretion of such
Lender, result in a legal, economic or regulatory disadvantage to such
Lender.  The Borrowers shall not be
required to pay any additional or indemnification amounts under this Agreement
with respect to any Puerto Rican Taxes that would not have been imposed with
respect to any payment hereunder but for a failure by a Lender to comply with
its obligations under this paragraph.


 


(f)            Treatment
of Certain Refunds.  If the
Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by 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 of the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund), provided that 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.


 


3.02         Illegality.


 


If any
Lender determines that the introduction of or any change in or in the
interpretation of any Law after the date hereof has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans,
or to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Company through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Company that the circumstances giving rise to such determination no longer
exist.  Upon receipt of such notice, the
Borrowers shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such


 


41

















 


prepayment or conversion,
the Borrowers 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 (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 Company and all Lenders.  Thereafter, the obligation of the Lenders to
make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent revokes such notice. 
Upon receipt of such notice, the Borrowers 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.  Subject to the
provisions of Section 3.01 (which shall solely govern the matters
covered therein), 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;


 


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


 


42

















 


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 and such Lender or L/C Issuer
reasonably determines such reduction in rate of return is material), then from
time to time the Borrowers 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 Company shall be conclusive absent demonstrable error.  The Borrowers 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 Borrowers 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 six months prior to
the date that such Lender or the L/C Issuer, as the case may be, notifies the
Company 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 six-month period referred to above shall
be extended to include the period of retroactive effect thereof).


 


(e)           Recoupments.  If any Lender shall subsequently recoup any
costs (other than from a Borrower) for which such Lender has theretofore been compensated
by a Borrower under this Section 3.04, such Lender shall promptly remit to
the Company an amount equal to the amount of such recoupment.


 


3.05         Compensation for Losses.


 


Upon
demand of any Lender (with a copy to the Administrative Agent) from time to
time, the Borrowers 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 a 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 such Borrower;


 


(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 Company pursuant to Section 11.13;
or


 


43

















 


(d)           any
failure by the Borrowers to make payment of any drawing under any Letter of
Credit (or interest due thereon) denominated in an Alternative Currency, as
requested by the L/C Issuer, pursuant to the terms hereof;


 


including 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 Borrowers
shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.


 


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


 


(b)           Replacement
of Lenders.  If any Lender requests
compensation under Section 3.04, or if a 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 Company may
replace such Lender in accordance with Section 11.13.


 


3.07         Survival.


 


All of
the Loan Parties’ obligations under this Article III shall survive
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations hereunder.


 


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


 


44

















 


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 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 a Borrower or any
other Guarantor for amounts paid under this Article IV until such
time as the Obligations (other than inchoate indemnity obligations and any other
obligations which, by their terms, are to 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;


 


(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


 


45

















 


(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 on demand for all reasonable costs and expenses (including, without
limitation, the reasonable fees, charges and disbursements of counsel) incurred
by the Administrative Agent or such Lender in connection with such rescission
or restoration, including any such reasonable 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.


 


Without
limiting the generality of the provisions of this Article IV, each
Guarantor hereby waives any rights and defenses that are or may become
available to such Guarantor by reason of Sections 2787 to 2855, inclusive, 2899
and 3433 of the California Civil Code. 
Each Guarantor further 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.


 


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.


 


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


 


46

















 


(other than inchoate
indemnity obligations and any other obligations which, by their terms, are to
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.


 


4.08         Release and Discharge of
Guaranty.


 


In the event that any Guarantor ceases to be a
Subsidiary as a result of a transaction not prohibited by this Agreement,
including by way of merger, consolidation, liquidation, sale or other
Disposition of the Equity Interests of such Guarantor, such Guarantor shall be
automatically released and discharged from this Guaranty and this Guaranty
shall be automatically terminated and be of no further force or effect with
respect to such Guarantor without further action or instruction (it being
understood and agreed that the sale of one or more Persons that own, directly
or indirectly, all of the Equity Interests of any Guarantor shall be deemed to
be a sale of such Guarantor for the purposes of this Section 4.08).


 


Upon satisfaction of the Guaranty Release
Conditions, the Company may notify the Administrative Agent of such
satisfaction and may request that this Guaranty be released and terminated,
whereupon the Administrative Agent shall release and discharge all Guarantors
from this Guaranty and this Guaranty shall be terminated and be of no further
force or effect with respect to all Guarantors without further action or
instruction.


 


In the event that (a) the Senior Notes have
paid in full, (b) all Subsidiaries’ Guarantees of the Senior Notes have
been released and (c) the Company delivers to the Administrative Agent a
certificate signed by a Responsible Officer of the Company certifying that any
one or more of the Guarantors is then an Immaterial Subsidiary, the Company may
request that this Guaranty be released and terminated with respect to such
Immaterial Subsidiary(ies), whereupon the Administrative Agent shall release
and discharge such Immaterial Subsidiary(ies) from this Guaranty and this
Guaranty shall be terminated and be of no further force or effect with respect
to such Immaterial Subsidiary(ies) without further action or instruction.


 


The Company, at its expense, may request the
Administrative Agent to execute and deliver documents or instruments necessary
to evidence any such release and discharge.


 


ARTICLE V


 


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


5.01         Conditions of Initial Credit Extension.


 


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, in substantially the form of Exhibit 5.01(b) annexed
hereto.


 


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(c)           Financial
Statements.  The Administrative Agent
shall have received consolidated financial statements of the Company and its
Subsidiaries for the fiscal years ended December 31, 2003, December 31,
2004, and December 31, 2005, including balance sheets and income and cash
flow statements, in each case audited by independent public accountants of
recognized national standing and prepared in conformity with GAAP.


 


(d)           No
Material Adverse Change.  There shall
not have occurred a material adverse change since December 31, 2005 in the
business, assets, liabilities, operations or financial condition of the Company
and its Subsidiaries, taken as a whole.


 


(e)           Organization Documents, Resolutions, Etc.  Receipt
by the Administrative Agent of the following, each of which, except as noted
below, shall be originals or facsimiles (followed promptly by originals), in
form and substance reasonably 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 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 reasonably 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 reasonably 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 (except for the Guarantors identified as not being in
good standing on Schedule 6.11).


 


(f)            Closing
Certificate.  Receipt by the
Administrative Agent of a certificate signed by a Responsible Officer of the
Company certifying that the conditions specified in Section 5.01(d) and
Sections 5.02(a) and (b) have been satisfied.


 


(g)           Termination
of Existing Credit Agreement.  All
obligations owing under that certain credit agreement dated as of July 18,
2001 among the Company, the other borrower identified therein, the lenders
party thereto and JPMorgan Chase Bank, N.A., as administrative agent (other
than inchoate indemnity obligations and any other obligations which, by their
terms, are to survive the termination of such agreement), shall have been paid
in full and all commitments thereunder shall have been terminated.


 


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


 


(i)            Attorney
Costs.  Unless waived by the
Administrative Agent, the Company shall have paid all fees, charges and
disbursements of counsel to the Administrative Agent (directly to such counsel
if requested by the Administrative Agent).


 


48

















 


Without
limiting the generality of the provisions 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 Company 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 on the date of, 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 shall have received a
Request for Credit Extension in accordance with the requirements hereof.


 


Each
Request for Credit Extension submitted by a 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.


 


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
of the Company and its Subsidiaries (other than Immaterial Subsidiaries) (a) is
duly organized or formed, validly existing and, as applicable, in good standing
under the Laws of the jurisdiction of its incorporation or organization except
as disclosed on Schedule 6.11, (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, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so would not reasonably be expected to
have a Material Adverse Effect.


 


49

















 


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 with or result in
any breach or contravention of, or the creation of any Lien under, or require
any payment to be made under (i) any contractual obligation to which such
Person is a party or affecting such Person or the properties of such Person or
any of its 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; except where such conflict, breach, contravention or Lien
would not reasonably be expected to have a Material Adverse Effect or (c) violate
any Law.


 


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) those described in Section 7.06(d), all of
which either have been made or will be made within the time periods prescribed
by applicable Law.


 


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 may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally
or by equitable principles relating to enforceability.


 


6.05         Financial Statements; No Material Adverse Effect; No
Internal Control Event.


 


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


 


(b)           The
most recent financial statements delivered pursuant to Section 7.01(b) (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly
present in all material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, 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 known material indebtedness and other liabilities, direct or contingent, of
the Company and its Subsidiaries as of the date thereof, including liabilities
for taxes, material commitments and Indebtedness to the extent required by GAAP.


 


50

















 


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


 


(d)           To
the best knowledge of the Company, no Internal Control Event exists or has
occurred since the date of the Audited Financial Statements that has resulted
in or would reasonably be expected to result in a misstatement in any material
respect, in any material financial information delivered or to be delivered to
the Administrative Agent or the Lenders, of (i) covenant compliance
calculations provided under Section 8.09 or (ii) the assets,
liabilities, financial condition or results of operations of the Company and
its Subsidiaries on a consolidated basis.


 


6.06         Litigation.


 


There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Loan Parties, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or any of its
Subsidiaries or against any of their properties or revenues that are reasonably
expected to have a Material Adverse Effect.


 


6.07         No Default.


 


No
Default has occurred and is continuing.


 


6.08         Environmental Compliance.


 


Neither the Company nor its Subsidiaries has
received any notice of violation, alleged violation, non-compliance or
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of its or its Subsidiaries’ properties or business except as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, nor does the Company have any knowledge that any such
notice will be received or is being threatened.


 


6.09         Taxes.


 


The
Company and its Subsidiaries have filed all United States federal, material
state and other material tax returns and reports required to be filed, and have
paid all United States federal, material state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets that are shown as due on such returns and
reports or pursuant to any assessment received by the Company or any of its
Subsidiaries, 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. 
To the knowledge of the Company and its Subsidiaries, there is no
proposed tax assessment against the Company or any Subsidiary that would, if
made, reasonably be expected to have a Material Adverse Effect.


 


6.10         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 Plan that is intended to qualify under Section 401(a) of
the Internal Revenue Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the best knowledge of the Loan Parties,
nothing has occurred which would prevent, or cause the loss of, such
qualification.  Each Loan Party and each
ERISA Affiliate have made all required contributions to each Plan subject to Section 412
of the Internal Revenue Code, and no application for a funding waiver or


 


51

















 


an extension of any
amortization period pursuant to Section 412 of the Internal Revenue Code
has been made with respect to any Plan.


 


(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 would be 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 would reasonably be expected to result
in a Material Adverse Effect.


 


(c)           Except
to the extent that it, individually or in the aggregate with any other events,
conditions or occurrences specified in this subsection (c), has not or
would not reasonably be expected to result in a Material Adverse Effect:  (i)  no ERISA Event has occurred or is
reasonably expected to occur; (ii) no Pension Plan has any Unfunded
Pension Liability; (iii) no Loan Party or any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) no Loan Party or any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) no Loan Party or any ERISA
Affiliate has engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA.


 


6.11         Subsidiaries.


 


Set
forth on Schedule 6.11 is a complete and accurate list as of the
Closing Date of each Subsidiary, together with (i) jurisdiction of
formation (ii) percentage of outstanding shares of each class owned
(directly or indirectly) by the Company or any Subsidiary and (iii) an
indication if such Subsidiary is an Immaterial Subsidiary.


 


6.12         Margin Regulations; Investment Company Act.


 


(a)           No
part of any Borrowing or drawing under any Letter of Credit will be used to
purchase or carry margin stock (within the meaning of Regulation U issued by
the FRB), or to extend credit to others for that purpose, if to do so would
violate the provisions of Regulation U issued by the FRB.


 


(b)           None
of the Borrowers or any Subsidiary is subject to regulation under the
Investment Company Act of 1940.


 


6.13         Disclosure.


 


No
report, financial statement, certificate or other information furnished (in
writing) 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.


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation


 


52

















 


arising under the Loan
Documents (other than inchoate indemnity obligations and any other obligations
which, by their terms, are to survive the termination of this Agreement) 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, in form and detail reasonably satisfactory to the
Administrative Agent and the Required Lenders:


 


(a)           as
soon as available, but in any event within ninety days after the end of each
fiscal year of the Company, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP (provided that the requirement herein for the furnishing
of annual financial statements may be fulfilled by providing to the
Administrative Agent the report of the Company to the SEC on Form 10-K for
the applicable fiscal year), audited and accompanied by (i) a report and
opinion of a “Big 4” accounting firm or another Registered Public Accounting
Firm 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 applicable Securities Laws 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 or with respect to the
absence of any material misstatement and (ii) an opinion of such
Registered Public Accounting Firm independently assessing the Company’s
internal controls over financial reporting in accordance with Item 308 of SEC
Regulation S-K, PCAOB Auditing Standard No. 2, and Section 404 of
Sarbanes-Oxley expressing a conclusion that contains no statement that there is
a material weakness in such internal controls, except for such material
weaknesses that have not resulted in a misstatement, in any material respect,
in any material financial information or as to which the Required Lenders do
not otherwise object; and


 


(b)           as
soon as available, but in any event within forty-five days after the end of
each of the first three fiscal quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Company’s 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 (provided that the requirement herein for the
furnishing of quarterly financial statements may be fulfilled by providing to
the Administrative Agent the report of the Company to the SEC on Form 10-Q
for the applicable quarterly period) and certified by the chief executive
officer, chief financial officer, chief accounting officer, treasurer or
controller of the Company as fairly presenting, in all material respects, the
financial condition, results of operations, shareholders’ equity and cash flows
of the Company and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.


 


As to
any information contained in materials furnished pursuant to Section 7.02(c),
the Company shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation
of the obligation of the Company to furnish the information and materials
described in clauses (a) and (b) above at the times specified
therein.


 


53

















 


7.02         Certificates; Other Information.


 


Deliver
to the Administrative Agent, 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 the Registered Public Accounting Firm certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default with respect to Section 8.09
or, if any such Default shall exist, stating the nature and status of such event
(which certificate may be limited to the extent required by accounting rules or
guidelines or firm guidelines);


 


(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 the chief
executive officer, chief financial officer, chief accounting officer, treasurer
or controller of the Company;


 


(c)           promptly
after the same are available, 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;


 


(d)           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;


 


(e)           promptly,
and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each material notice or other
material 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; and


 


(f)            promptly,
such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender through the
Administrative Agent may from time to time reasonably request.


 


Documents
required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(c) (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 Company posts such documents, or provides a link thereto on the
Company’s website on the Internet at the website address listed on Schedule 11.02;
or (ii) on which such documents are posted on the Company’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
Company shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Company 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 Company shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail)


 


54

















 


of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in
every instance the Company shall be required to provide paper copies of the
Compliance Certificates required by Section 7.02(b) to the
Administrative Agent.  Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Company with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


 


The
Company hereby acknowledges that (a) the Administrative Agent and/or BAS
will make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Company hereunder (collectively, “Company
Materials”) by posting the Company Materials on IntraLinks or another similar
electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Company or its
securities) (each, a “Public Lender”). 
The Company hereby agrees that so long as the Company is the issuer of
any outstanding debt or equity securities that are registered or issued
pursuant to a private offering or is actively contemplating issuing any such
securities (w) all Company 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 Company Materials “PUBLIC,” the Company shall be deemed to have
authorized the Administrative Agent, BAS and the Lenders to treat such Company
Materials as not containing any material non-public information with respect to
the Company or its securities for purposes of United States federal and state
securities laws (provided, however, that to the extent such
Company Materials constitute Information, they shall be treated as set forth in
Section 11.07); (y) all Company Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated as “Public
Investor;” and (z) the Administrative Agent and BAS shall be entitled to treat
any Company Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not marked as “Public Investor.”  Notwithstanding the foregoing, the Company
shall be under no obligation to mark any Company Materials “PUBLIC.”


 


7.03         Notices.


 


(a)           Promptly
after a Responsible Officer of the Company becoming aware of the existence of
any Default, notify the Administrative Agent of the occurrence of such Default.


 


(b)           Promptly
after a Responsible Officer of the Company becoming aware thereof, notify the
Administrative Agent of (i) the occurrence of any Material Adverse Effect;
(ii) the termination of, breach or non-performance of, or any default
under, a contractual obligation of the Company or any Subsidiary; (iii) any
dispute, litigation, investigation, proceeding or suspension between the
Company or any Subsidiary and any Governmental Authority; or (iv) the
commencement of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary, including pursuant to any applicable
Environmental Laws; to the extent that any such matter described in clauses (ii) through
(iv) has resulted or would reasonably be expected to result in a Material
Adverse Effect.


 


(c)           Promptly
after a Responsible Officer of the Company becoming aware of the existence of
any ERISA Event, notify the Administrative Agent of the occurrence of such
ERISA Event.


 


(d)           Promptly
notify the Administrative Agent of any material change in accounting policies
or financial reporting practices by the Company or any Subsidiary.


 


55

















 


(e)           Promptly
notify the Administrative Agent of the determination by the Registered Public
Accounting Firm providing the opinion required under Section 7.01(a)(ii) (in
connection with its preparation of such opinion) or a Loan Party’s
determination at any time of the occurrence or existence of any Internal
Control Event that has resulted in or would reasonably be expected to result in
a misstatement in any material respect, in any material financial information.


 


(f)            Promptly
after a Responsible Officer of the Company becoming aware of a change to the
Debt Rating, notify the Administrative Agent of such change to the Debt Rating.


 


Each
notice pursuant to this Section 7.03(a) through (e) shall
be accompanied by a statement of a Responsible Officer of the Company setting
forth details of the occurrence referred to therein and stating what action the
Company 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 Taxes.


 


Pay
and discharge, as the same shall become due and payable (a) all material
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 Company or such Subsidiary; and
(b) all lawful claims which, if unpaid, would by law become a Lien upon
any of its property that is not permitted by Section 8.01.


 


7.05         Preservation of Existence.


 


Except
with respect to Immaterial Subsidiaries, preserve,
renew and maintain in full force and effect (a) its legal existence under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 8.04 and (b) its good standing under the
Laws of the jurisdiction of its organization, except to the extent the failure
to do so would not reasonably be expected to have a Material Adverse Effect.


 


7.06         Maintenance of Properties.


 


(a)           Maintain
and preserve 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; provided  that this Section shall not
prevent the Company or any Subsidiary from discontinuing the operation and the
maintenance of any of its properties to the extent not otherwise prohibited by
this Agreement and if such discontinuance is desirable in the conduct of its
business and the Company has concluded that such discontinuance would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


(b)           Take
all reasonable action to maintain all rights, privileges, permits, licenses and
franchises, and television programming agreements (including the Program
License Agreements) necessary in the normal conduct of its business, except to
the extent that the failure to do so would not reasonably be expected to have a
Material Adverse Effect.


 


(c)           Preserve
or renew all of its material registered patents, copyrights, trademarks, trade
names and service marks, the non-preservation of which would reasonably be
expected to have a Material Adverse Effect.


 


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(d)           Maintain
and preserve all Media Licenses, including by filing with the FCC (i) those
of the Loan Documents required to be filed under the FCC’s rules and
regulations within 30 days after the Closing Date, and (ii) all
reports (including Ownership Reports on Form 323) and other documents
required to be filed by the Communications Act in connection with the
transactions contemplated hereby and maintaining public records and files in
accordance with the Communications Act and the rules and regulations of
the FCC, except for such Media Licenses the failure of which to obtain,
maintain or preserve would not reasonably be expected to have a Material
Adverse Effect.


 


7.07         Maintenance of Insurance.


 


Maintain
in full force and effect insurance (including worker’s compensation insurance,
liability insurance and casualty insurance with financially sound and reputable
insurance companies not Affiliates of the Company, in such amounts, with such
deductibles or self insured retentions and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or the applicable Subsidiary
operates.


 


7.08         Compliance with Laws.


 


Comply
with the requirements of all Laws (including Environmental 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 would 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 entries that are full, true and
correct in all material respects shall be made in conformity with GAAP
consistently applied.


 


(b)           Maintain
such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
the Company 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 such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however,
that (a) 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 Company at any time during
normal business hours and without advance notice and (b) if no Event of
Default exists, the foregoing shall be at the expense of the Administrative
Agent and the Lenders.


 


7.11         Additional Guarantors.


 


Within
thirty (30) days after (a) the acquisition or formation of any Subsidiary
other than an Immaterial Subsidiary, if such Subsidiary is a Domestic
Subsidiary, or (b) any Subsidiary that is not already a Guarantor
Guarantees any of the Senior Notes, cause such Person in either case to (i) become
a


 


57

















 


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) to the extent requested by the Administrative Agent, deliver to
the Administrative Agent documents of the types referred to in Sections 5.01(e) and
favorable opinions of counsel to such Person (which shall cover the due
organization and good standing of such Subsidiary, the due authorization,
execution and delivery by such Subsidiary, and the legality, validity, binding
effect, enforceability and no conflicts, of the documentation referred to in
clause (i)), all in form reasonably satisfactory to the Administrative Agent; provided
that no Subsidiary shall be required to become a Guarantor at any time that the
Guaranty Release Conditions are being satisfied.


 


ARTICLE VIII


 


NEGATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation arising under the Loan Documents (other than inchoate indemnity
obligations and any other obligations which, by their terms, are to survive the
termination of this Agreement) shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding:


 


8.01         Liens.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly
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;


 


(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;


 


(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, individually or in the aggregate, do not in any case materially
detract from


 


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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)            licenses,
leases or subleases granted to others not interfering in any material respect
with the business of the Company or any of its Subsidiaries;


 


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


 


(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
on property, plant and equipment existing at the time such assets (or the
Person owning such assets) were acquired by the Company or any Subsidiary in a
transaction not otherwise prohibited by this Agreement; provided, that,
(i) such Liens (and the obligations secured thereby) were not created in
contemplation of such acquisition, (ii) such Liens do not and will not
extend to any additional assets of the Company and its Subsidiaries and (iii) the
obligations secured by such Liens are not recourse to any Person other than the
owner of the assets subject to such Lien;


 


(n)           other
Liens securing Indebtedness of the Company or any of its Subsidiaries in an
aggregate principal amount not to exceed the difference of (i) (A) if
Company’s Debt Rating is BBB- or better by S&P and Baa3 or better by Moody’s,
$250,000,000 and (B) otherwise, $125,000,000 over (ii) the aggregate
principal amount of unsecured Indebtedness of the Subsidiaries of the Company
incurred pursuant to Section 8.03(e) (provided that no Event
of Default shall exist pursuant to this Section 8.01(n) solely by
reason of a change in the Debt Ratings, if such Liens were created in
compliance with this Section 8.01(n) prior to such change in Debt
Ratings); and


 


(o)           any Lien securing the extension, renewal,
refinancing and replacement (in each case, without an increase of the principal
amount thereof) of any Indebtedness secured by any Lien permitted by this Section 8.01
that does not extend to Indebtedness other than that which is being extended,
renewed, refinanced or replaced.


 


8.02         Investments.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly
make any Investments except:


 


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


 


(b)           Investments
in Loan Parties; and


 


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(c)           other
Investments so long as no Default exists at the time of such Investment thereof
or would result therefrom (which in connection with a material acquisition,
shall be determined on a Pro Forma Basis).


 


8.03         Indebtedness.


 


No
Loan Party shall permit any Subsidiary to, directly or indirectly, create,
incur, assume or suffer to exist any Indebtedness, except:


 


(a)           Indebtedness
under the Loan Documents (including Obligations owing by the Subsidiary
Borrower);


 


(b)           intercompany
Indebtedness not prohibited by Section 8.02;


 


(c)           Indebtedness
existing on the Closing Date and set forth on Schedule 8.03;


 


(d)           Indebtedness
secured by Liens permitted by Section 8.01(m);


 


(e)           other
Indebtedness so long as (i) no Default exists at the time of the
incurrence thereof or would result therefrom and (ii) the aggregate
principal amount of all such Indebtedness shall not to exceed the difference of
(A) the greater of (1) if Company’s Debt Rating is BBB- or better by
S&P and Baa3 or better by Moody’s, $250,000,000 and (2) otherwise,
$125,000,000 over (B) the aggregate principal amount of Indebtedness of
the Company secured by Liens (other than Liens permitted by Section 8.01(m))
(provided that no Event of Default shall exist pursuant to this Section 8.03(e) solely
by reason of a change in the Debt Ratings, if such Indebtedness was incurred in
compliance with this Section 8.03(e) prior to such change in
Debt Ratings); and


 


(f)            extensions,
renewals, refinancings and replacements of Indebtedness permitted by this Section 8.03
which do not increase the principal amount of such Indebtedness.


 


8.04         Fundamental Changes.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly
(a) merge, dissolve, liquidate, consolidate with or into another Person, (b) engage
in any material line of business substantially different from business
generally considered to be in the media and communications industry, including
without limitation the ownership and operation of television networks, radio
and television stations, cable networks, cable programming, television
programming and syndication, interactive television, direct broadcast
satellite, pay-per-view television, sports team ownership, sports promotion,
home shopping, print and on-line publishing and broadcasting, billboards and
recorded music and music publishing (or any business related or incidental
thereto or in furtherance thereof) or (c) Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of the
consolidated assets of the Company and its Subsidiaries taken as a whole
(whether now owned or hereafter acquired) to or in favor of any Person; provided
that, notwithstanding the foregoing provisions of this Section 8.04,
(i) the Company may merge or consolidate with any of its Subsidiaries
provided that the Company shall be the continuing or surviving corporation (and
if such Subsidiary is the Subsidiary Borrower, the Company shall have assumed
in writing all Obligations of the Subsidiary Borrower on terms reasonably
satisfactory to the Administrative Agent), (ii) any Guarantor may merge or
consolidate with any other Guarantor and any Subsidiary that is not a Guarantor
may merge or consolidate with any other Subsidiary that is not a Guarantor, (iii) subject
to clause (i) above, a Loan Party may merge with any other Person that is
not a Loan Party so long as such Loan Party is the surviving Person and (iv) any Subsidiary (other than the


 


60

















 


Subsidiary
Borrower) may dissolve, liquidate or wind up its affairs at any time provided
that such dissolution, liquidation or winding up, as applicable, would not
reasonably be expected to have a Material Adverse Effect.


 


Furthermore, no Loan Party shall, nor shall it
permit any Subsidiary to, directly or indirectly, make any material Disposition
of (whether in one transaction or in a series of transactions) assets
constituting less than all or substantially all of the consolidated assets of
the Company and its Subsidiaries taken as a whole (whether now owned or
hereafter acquired) to or in favor of any Person if a Default then exists or
would result therefrom on a Pro Forma Basis.


 


8.05         Restricted Payments.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly
declare or make, directly or indirectly, any Restricted Payment, (other than (a) Restricted
Payments to a Loan Party and (b) Restricted Payments payable solely in
common Equity Interests of such Person), if a Default then exists or would
result therefrom on a Pro Forma Basis.


 


8.06         Transactions with Affiliates.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly
enter into or permit to exist any material transaction or material series of
transactions with any 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) intercompany transactions not otherwise prohibited by this
Agreement, (d) transactions pursuant to the Program License Agreements, (e) Investments
and Restricted Payments not prohibited by Section 8.02 or Section 8.05,
(f) reimbursement arrangements among the Company, Chartwell Services, Inc.,
Chartwell Services New York, Inc. and Chartwell Partners LLC
(collectively, “Chartwell”)  for
compensation and other expenses incurred by Chartwell for individuals who
devote time to the Company activities pursuant to agreements entered into
between the Company and Chartwell and (g) 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
Affiliate.


 


8.07         Burdensome Agreements.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly
enter into, or permit to exist, any contractual obligation that encumbers or
restricts on the ability of any such Person to (a) make Restricted
Payments to Loan Parties, (b) pay any Indebtedness or other obligation
owed to any Loan Party, or (c) make loans or advances to any Loan Party; provided
that the foregoing shall not apply to (i) restrictions and
conditions imposed by law or by this Agreement, (ii) in the case of
clauses (b) and (c), customary restrictions and conditions contained in
agreements relating to the Disposition of property or assets pending such
Disposition, provided such restrictions and conditions apply only to the
property or assets that are to be Disposed of and such Disposition is not
prohibited hereunder and (iii) in the case of clauses (b) and (c),
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness.


 


8.08         Use of Proceeds.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly
use the proceeds of the Credit Extensions (a) to purchase or carry margin
stock (within the meaning of Regulation U issued by the FRB), or to extend
credit to others for that purpose, if to do so would violate Regulation U
issued by the FRB or (b) in contravention of any Law or of any Loan
Document.


 


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8.09         Financial Covenants.


 


No
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:


 


(a)           Consolidated
Leverage Ratio.  Permit the
Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company
to be greater than 4.75 to 1.0 on a Pro Forma Basis.


 


(b)           Consolidated
Interest Coverage Ratio.  Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the
Company to be less than 2.50 to 1.0 on a Pro Forma Basis.


 


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 Company 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 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 7.05
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 after the earlier of the
date on which (a) a Responsible Officer of any Loan Party becomes aware of
such failure or (b) written notice thereof shall have been given to the
Company by the Administrative Agent or any Lender; or


 


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


 


(e)           Cross-Default.  (i) The Company 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 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


 


62

















 


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 Company 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 Company or any Subsidiary is
an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Company 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 (excluding Immaterial 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) The
Company or any Subsidiary (excluding any Immaterial Subsidiary) becomes unable
or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person in excess of the Threshold Amount and is not
released, vacated or fully bonded within thirty days after its issue or levy;
or


 


(h)           Judgments.  There is entered against the Company or any
Subsidiary (excluding any Immaterial Subsidiary) (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all
such judgments or orders) exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage (it being understood that an insurer may assert a reservation
of rights under applicable policies so long as it has paid the amounts
purported to be covered by those policies), 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 and there is a period of 60 consecutive days during
which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect, or (B) there is a period of 60 consecutive
days during which a stay of enforcement of such judgment, by reason of a
pending appeal or otherwise, is not in effect; or


 


(i)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company 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 Company or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace period, any


 


63

















 


installment
payment with respect to its withdrawal liability under Section 4201 of
ERISA under a Multiemployer Plan in an aggregate amount in excess of the
Threshold Amount; or


 


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


 


(k)           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 Company;


 


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


 


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


 


provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to a 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 Borrowers 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.


 


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;


 


64

















 


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 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, 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 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, (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 (other than inchoate indemnity obligations and any other
obligations which, by their terms, are to survive the termination of this
Agreement) have been paid in full, to the Borrowers or as otherwise required by
Law.


 


Subject
to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause 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.


 


ARTICLE X


 


ADMINISTRATIVE AGENT


 


10.01       Appointment and Authority.


 


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


 


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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


 


(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 Company, 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.


 


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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.


 


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 Company. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the consent of the Company (not to be unreasonably
withheld or delayed) so long as no Default exists, 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 Company 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 Company to a successor Administrative


 


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Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Company
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. 
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring L/C Issuer, (b) the
retiring L/C Issuer shall be discharged from all 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 (including issuing
back-to-back Letters of Credit to the retiring L/C Issuer for such outstanding
Letters of Credit) 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.


 


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 proceeding under any Debtor Relief Law or any 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
either 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


 


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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),
2.08 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 2.08 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 the L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any
Lender or the L/C Issuer in any such proceeding.


 


10.10       Guaranty Matters.


 


The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at
its option and in its discretion and without further action or instruction, to
release any Guarantor from its obligations under the Guaranty in the
circumstances contemplated by Section 4.08 or if such Person ceases
to be a Subsidiary as a result of a transaction not prohibited by this
Agreement, including by way of merger, consolidation, liquidation, sale or
other Disposition of the Equity Interests of such Guarantor.  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 Company or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrowers 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


 


69

















 


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 (A) amend
the definition of “Default Rate” or to waive any obligation of the Company to
pay interest or Letter of Credit Fees at the Default Rate or (B) to amend
any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;


 


(iv)          change
Section 2.12 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender directly affected thereby;


 


(v)           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;
or


 


(vi)          release
the Company or the Subsidiary Borrower (unless the Company has assumed in
writing all Obligations of the Subsidiary Borrower) or, except in connection
with a transaction permitted under Section 4.08 or Section 8.04,
all or substantially all of the value of the Guaranty without the written
consent of each Lender whose Obligations are guarantied thereby; or


 


(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; or


 


(c)           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, except that the Commitment of such Lender may not be increased or
extended without the consent of such 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


 


70

















 


cash collateral in the
context of a bankruptcy or insolvency proceeding and such determination shall
be binding on all of the Lenders.


 


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
Company or any other Loan Party, the Administrative Agent or the L/C Issuer, 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.


 


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


 


(b)           Electronic
Communications.  Notices and other
communications to the Lenders and the L/C Issuer hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or
the L/C Issuer pursuant to Article II if such Lender or the L/C
Issuer, as applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic
communication.  The Administrative Agent
or the Company 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 COMPANY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE COMPANY MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR


 


71

















 


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 COMPANY MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent Parties”) have any
liability to the Company, 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 Company’s or the Administrative Agent’s
transmission of Company Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses 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 Company, 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
Borrowers, the Administrative Agent and the L/C Issuer 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 Company, the
Administrative Agent and the L/C Issuer. 
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.


 


(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) 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.


 


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.


 


11.04       Expenses; Indemnity; and Damage Waiver.


 


(a)           Costs
and Expenses.  The Loan Parties shall
pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance,


 


72

















 


amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees
and time charges for attorneys who may be employees of the Administrative
Agent, any Lender or the L/C Issuer, in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


(b)           Indemnification
by the Loan Parties.  Subject to the
provisions of Sections 3.01 and 3.04 (which shall govern
indemnification with respect to Taxes and Other Taxes), 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 Company 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 any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents (excluding
fees, charges and disbursements of counsel to the Lenders in connection with
the execution and delivery by such Indemnitee of the 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
Company or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; 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) result from the gross negligence or
willful misconduct of such Indemnitee or (y) result solely from a claim
brought by the Company 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.


 


(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 2.11(d).


 


73

















 


(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 to such unintended recipients
by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee.


 


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


 


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


 


11.05       Payments Set Aside.


 


To the
extent that any payment by or on behalf of 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 neither the Company nor
the Subsidiary Borrower (unless the Company has assumed in writing all
Obligations of the Subsidiary 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


 


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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) 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 related 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


 


(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 unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Company
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)           Proportionate
Amounts.  Each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s Loans and Commitments, and rights and obligations with respect
thereto, assigned.


 


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


 


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


 


(B)           the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments 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; and


 


(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


 


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the
assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding).


 


(iv)          Assignment
and Assumption.  The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount,
if any, required as set forth in Exhibit 11.06; 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 shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.


 


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


 


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


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment).  Upon request, the
Borrowers (at their 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 Borrowers, 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 Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.  The Register
shall be available for inspection by the Borrowers 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 Company or the Administrative Agent, sell
participations to any Person (other than a natural person or the Company or any
of the Company’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) 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
Borrowers, the Administrative 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


 


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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 (vi) of the Section 11.01(a) that
affects such Participant.  Subject to subsection (f) of
this Section, each 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 2.12 as though it were
a Lender.


 


(e)           Participant
Register.  In the event that any
Lender sells a participation pursuant to subsection (d) of this
Section, such Lender shall maintain with respect to such participation, acting
solely for this purpose as an agent of the Borrowers, a register comparable to
the Register (the “Participant Register”).  Interests in the rights and/or obligations of
a Lender under this Agreement may be participated in whole or in part only by
registration of such participation on such Participant Register.


 


(f)            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 Company’s prior written consent. 
A Participant shall not be entitled to the benefits of Section 3.01
unless the Company is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


(g)           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.


 


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


 


(i)            Resignation
as L/C Issuer after Assignment. 
Notwithstanding anything to the contrary contained herein, if at any
time a Lender acting as the L/C Issuer assigns all of its Commitment and Loans
pursuant to subsection (b) above, such Lender may, upon thirty days’
notice to the Company and the Lenders, resign as L/C Issuer.  In the event of any such resignation as L/C
Issuer, the Company shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no
failure by the Company to appoint any such successor shall affect the
resignation of such Lender as L/C Issuer, as the case may be.  If a Lender 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 issued by it and 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)).  Upon the appointment of a successor L/C
Issuer, (1) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer, 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


 


77

















 


arrangements (including
issuing back-to-back Letters of Credit to the retiring L/C Issuer for such
outstanding Letters of Credit) satisfactory to the resigning L/C Issuer to
effectively assume the obligations of the resigning L/C Issuer with respect to
such Letters of Credit.


 


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) on a need-to-know basis 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 or its Affiliates (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, or (g) with the
consent of the Company; provided that in the case of any request,
subpoena or proposed release or disclosure of Information described in clause (c) above,
the party believing it is obligated to release or disclose shall, subject to
compliance with the applicable law, regulations, subpoena or other legal
process, use commercially reasonable efforts to notify the Company prior to
such release or disclosure.


 


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 (i) is publicly available to the
Administrative Agent, any Lender or the L/C Issuer other than as a result of a
disclosure by the Administrative Agent, any Lender or the L/C Issuer in
violation of this Section 11.07 or (ii) was within the
possession of the Administrative Agent, any Lender or the L/C Issuer prior to
its being furnished pursuant hereto or becomes available to the Administrative
Agent, any Lender or the L/C Issuer on a nonconfidential basis from a source
other than such Loan Party or any Subsidiary or any of their respective agents,
provided that the source of such Information was not known by the Administrative
Agent, such Lender or the L/C Issuer, as applicable, to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to such Loan Party or any other party with
respect to such Information.  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 Company
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 Federal and state securities Laws.


 


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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 Company
or any other Loan Party against any and all of the obligations of the Company
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 Company 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 or obligated on such indebtedness. 
The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have.  Each
Lender and the L/C Issuer agrees to notify the Company 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 Borrowers. 
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
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


 


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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.


 


11.12       Severability.


 


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


 


11.13       Replacement of Lenders.


 


If (i) any
Lender requests compensation under Section 3.04, (ii) a
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,
(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 Company 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
Company shall have paid to the Administrative Agent the assignment fee specified
in Section 11.06(b);


 


(b)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans 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 Borrowers (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


 


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Non-Consenting
Lender’s Commitments and outstanding Loans and participations in L/C
Obligations pursuant to this Section 11.13 shall nevertheless be
effective without the execution by such Non-Consenting Lender of an Assignment
and Assumption.


 


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 Company 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 COMPANY 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
COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(c)           WAIVER
OF VENUE.  THE COMPANY 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.


 


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


 


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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       California Judicial Reference.


 


If any
action or proceeding is filed in a court of the State of California by or
against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, (a) the court
shall, and is hereby directed to, make a general reference pursuant to
California Code of Civil Procedure Section 638 to a referee (who shall be
a single active or retired judge) to hear and determine all of the issues in
such action or proceeding (whether of fact or of law) and to report a statement
of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code
of Civil Procedure Section 1281.8 shall be heard and determined by the
court, and (b) without limiting the generality of Section 11.04, the
Borrower shall be solely responsible to pay all fees and expenses of any
referee appointed in such action or proceeding.


 


11.17       No Advisory or Fiduciary Responsibility.


 


In
connection with all aspects of each transaction contemplated hereby, the Loan
Parties each acknowledge and agree that: (i) the credit facilities
provided for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Loan Parties and their respective
Affiliates, on the one hand, and the Administrative Agent and BAS, on the other
hand, and each of the Loan Parties is capable of evaluating and understanding
and understands and accepts the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with
the process leading to such transaction, the Administrative Agent and BAS each
is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary, for the Loan Parties or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither
the Administrative Agent nor BAS has assumed or will assume an advisory, agency
or fiduciary responsibility in favor of any Loan Party with respect to any of
the transactions contemplated hereby or the process leading thereto, including
with respect to any amendment, waiver or other modification hereof or of any
other Loan Document (irrespective of whether the Administrative Agent or BAS has advised or is currently advising any of the Loan Parties
or any of their respective Affiliates on other matters) and neither the
Administrative Agent nor BAS has any obligation to any of the Loan Parties or
any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; (iv) the Administrative Agent and BAS and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Loan Parties and their
respective Affiliates, and neither the Administrative Agent nor BAS has any
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) the Administrative Agent and BAS have
not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to any of the transactions contemplated hereby (including
any amendment, waiver or other modification hereof or of any other Loan
Document) and each Loan Party has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has


 


82

















 


deemed appropriate.  Each Loan Party hereby waives and releases,
to the fullest extent permitted by law, any claims that it may have against the
Administrative Agent and BAS with respect to any breach or alleged breach of
agency or fiduciary duty.


 


11.18       USA PATRIOT Act Notice.


 


Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers 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
Borrowers, which information includes the name and address of the Borrowers and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the Act.  The Borrowers shall deliver to the Lenders
such documentation as is requested by the Lenders and is necessary to comply
with the Act.


 


11.19       Judgment Currency.


 


If,
for the purposes of obtaining judgment in any court, it is necessary to convert
a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given.  The obligation
of each Borrower in respect of any such sum due from it to the Administrative
Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the “Judgment Currency”)
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the “Agreement Currency”), be
discharged only to the extent that on the Business Day following receipt by the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased
is less than the sum originally due to the Administrative Agent from any
Borrower in the Agreement Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against
such loss.  If the amount of the
Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to
return the amount of any excess to such Borrower (or to any other Person who
may be entitled thereto under applicable law).


 


[SIGNATURE PAGES FOLLOW]


 


83

















 


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


 


	
  BORROWERS:

  	
  UNIVISION
  COMMUNICATIONS INC.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
  Chief Accounting
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNIVISION OF PUERTO RICO INC.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  THE UNIVISION
  NETWORK LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision
  Communications Inc., general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Chief Accounting
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNIVISION EV-HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert V.
  Cahill

  	
   

  
	
   

  	
   

  	
  Robert V. Cahill

  
	
   

  	
   

  	
  President, CEO & Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HPN NUMBERS, INC.

  
	
   

  	
  GALAVISION, INC.

  
	
   

  	
  TELEFUTURA NETWORK

  
	
   

  	
  TELEFUTURA OF
  SAN FRANCISCO, INC.

  
	
   

  	
  TELEFUTURA
  ORLANDO, INC.

  
	
   

  	
  TELEFUTURA TELEVISION
  GROUP, INC.

  
	
   

  	
  UNIVISION
  INVESTMENTS, INC.

  
					



 

















 


	
   

  	
  UNIVISION
  MANAGEMENT CO.

  
	
   

  	
  UNIVISION MUSIC,
  INC.

  
	
   

  	
  UNIVISION OF
  ATLANTA INC.

  
	
   

  	
  UNIVISION OF NEW
  JERSEY INC.

  
	
   

  	
  UNIVISION OF
  RALEIGH, INC.

  
	
   

  	
  UNIVISION
  TELEVISION GROUP, INC.

  
	
   

  	
  KCYT-FM LICENSE
  CORP.

  
	
   

  	
  KECS-FM LICENSE
  CORP.

  
	
   

  	
  KESS-AM LICENSE
  CORP.

  
	
   

  	
  KESS-TV LICENSE
  CORP.

  
	
   

  	
  KHCK-FM LICENSE
  CORP.

  
	
   

  	
  KICI-AM LICENSE
  CORP.

  
	
   

  	
  KICI-FM LICENSE
  CORP.

  
	
   

  	
  KLSQ-AM LICENSE
  CORP.

  
	
   

  	
  KLVE-FM LICENSE
  CORP.

  
	
   

  	
  KMRT-AM LICENSE
  CORP.

  
	
   

  	
  KTNQ-AM LICENSE
  CORP.

  
	
   

  	
  LICENSE CORP.
  NO. 1

  
	
   

  	
  LICENSE CORP. NO. 2

  
	
   

  	
  MI CASA PUBLICATIONS, INC.

  
	
   

  	
  SERVICIO DE INFORMACION PROGRAMATIVA, INC.

  
	
   

  	
  SPANISH
  COAST-TO-COAST LTD.

  
	
   

  	
  TC TELEVISION,
  INC.

  
	
   

  	
  TICHENOR LICENSE
  CORP.

  
	
   

  	
  UNIVISION RADIO
  SAN FRANCISCO, INC.

  
	
   

  	
  TMS LICENSE
  CALIFORNIA, INC.

  
	
   

  	
  WADO-AM LICENSE
  CORP.

  
	
   

  	
  WADO RADIO, INC.

  
	
   

  	
  WLXX-AM LICENSE
  CORP.

  
	
   

  	
  WPAT-AM LICENSE
  CORP.

  
	
   

  	
  WQBA-AM LICENSE
  CORP.

  
	
   

  	
  WQBA-FM LICENSE
  CORP.

  
	
   

  	
  FONOHITS MUSIC
  PUBLISHING, INC.

  
	
   

  	
  FONOMUSIC, INC.

  
	
   

  	
  FONOVISA, INC.

  
	
   

  	
  PTI HOLDINGS,
  INC.

  
	
   

  	
  SUNSHINE
  ACQUISITION CORP.

  
	
   

  	
  UNIVISION
  ONLINE, INC.

  
	
   

  	
  EL TRATO, INC.

  
	
   

  	
  UNIVISION HOME
  ENTERTAINMENT, INC.

  
	
   

  	
  WURZBURG, INC.

  
	
   

  	
  UNIVISION PUERTO RICO STATION ACQUISITION COMPANY

  
	
   

  	
  UNIVISION PUERTO RICO STATION OPERATING COMPANY

  



 

















 


	
   

  	
  UNIVISION PUERTO RICO STATION PRODUCTION COMPANY

  
	
   

  	
  UNIVISION RADIO
  CORPORATE SALES, INC.

  
	
   

  	
  UNIVISION RADIO
  FRESNO, INC.

  
	
   

  	
  UNIVISION RADIO
  GP, INC.

  
	
   

  	
  UNIVISION RADIO
  HOUSTON LICENSE CORPORATION

  
	
   

  	
  UNIVISION RADIO
  ILLINOIS, INC.

  
	
   

  	
  UNIVISION RADIO
  INVESTMENTS, INC.

  
	
   

  	
  UNIVISION RADIO
  LAS VEGAS, INC.

  
	
   

  	
  UNIVISION RADIO
  LICENSE CORPORATION

  
	
   

  	
  UNIVISION RADIO
  LOS ANGELES, INC.

  
	
   

  	
  UNIVISION RADIO
  MANAGEMENT COMPANY, INC.

  
	
   

  	
  UNIVISION RADIO
  NEW MEXICO, INC.

  
	
   

  	
  UNIVISION RADIO
  NEW YORK, INC.

  
	
   

  	
  UNIVISION RADIO
  PHOENIX, INC.

  
	
   

  	
  UNIVISION RADIO
  PUERTO RICO, INC.

  
	
   

  	
  UNIVISION RADIO
  SACRAMENTO, INC.

  
	
   

  	
  UNIVISION
  RADIO SAN DIEGO, INC.

  
	
   

  	
  UNIVISION RADIO
  TOWER COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNIVISION RADIO,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Gerow

  	
   

  
	
   

  	
   

  	
  David Gerow

  
	
   

  	
   

  	
  Controller

  



 

















 


	
   

  	
  HBCi, LLC

  
	
   

  	
  UNIVISION RADIO FLORIDA, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision Radio, Inc.,
  manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David Gerow

  	
   

  
	
   

  	
   

  	
   

  	
  David Gerow

  
	
   

  	
   

  	
   

  	
  Controller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELEFUTURA SAN
  FRANCISCO LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Telefutura of
  San Francisco, Inc., member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNIVISION NEW
  YORK LLC

  
	
   

  	
  UNIVISION
  PHILADELPHIA LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision of New
  Jersey Inc., member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  



 

















 


	
   

  	
  STATION WORKS,
  LLC

  
	
   

  	
  TELEFUTURA
  ALBUQUERQUE LLC

  
	
   

  	
  TELEFUTURA
  BAKERSFIELD LLC

  
	
   

  	
  TELEFUTURA BOSTON LLC

  
	
   

  	
  TELEFUTURA CHICAGO LLC

  
	
   

  	
  TELEFUTURA D.C. LLC

  
	
   

  	
  TELEFUTURA DALLAS LLC

  
	
   

  	
  TELEFUTURA FRESNO LLC

  
	
   

  	
  TELEFUTURA HOUSTON LLC

  
	
   

  	
  TELEFUTURA LOS ANGELES LLC

  
	
   

  	
  TELEFUTURA MIAMI LLC

  
	
   

  	
  TELEFUTURA SACRAMENTO LLC

  
	
   

  	
  TELEFUTURA SOUTHWEST LLC

  
	
   

  	
  TELEFUTURA TAMPA
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Telefutura
  Television Group, Inc., member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELEFUTURA
  PARTNERSHIP OF DOUGLAS

  
	
   

  	
  TELEFUTURA
  PARTNERSHIP OF FLAGSTAFF

  
	
   

  	
  TELEFUTURA
  PARTNERSHIP OF FLORESVILLE

  
	
   

  	
  TELEFUTURA
  PARTNERSHIP OF PHOENIX

  
	
   

  	
  TELEFUTURA
  PARTNERSHIP OF SAN ANTONIO

  
	
   

  	
  TELEFUTURA
  PARTNERSHIP OF TUCSON

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Telefutura
  Television Group, Inc., general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNIVISION MUSIC
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision Music, Inc.,
  managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  



 

















 


	
   

  	
  UNIVISION
  ATLANTA LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision of
  Atlanta Inc., member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
  WUVC LICENSE
  PARTNERSHIP G.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision of
  Raleigh, Inc., general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
  KAKW LICENSE
  PARTNERSHIP, L.P.

  
	
   

  	
  UVN TEXAS L.P.

  
	
   

  	
  KDTV LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  KFTV LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  KMEX LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  KTVW LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  KUVI LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  KUVN LICENSE
  PARTNERSHIP, L.P.

  
	
   

  	
  KUVS LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  KWEX LICENSE
  PARTNERSHIP, L.P.

  
	
   

  	
  KXLN LICENSE
  PARTNERSHIP, L.P.

  
	
   

  	
  WGBO LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  WLTV LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
  WXTV LICENSE
  PARTNERSHIP, G.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision
  Television Group, Inc., general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
  WLII/WSUR
  LICENSE PARTNERSHIP, G.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision of
  Puerto Rico Inc., general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  



 

















 


	
   

  	
  UNIVISION RADIO
  BROADCASTING PUERTO RICO, L.P.

  
	
   

  	
  UNIVISION RADIO
  BROADCASTING TEXAS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision Radio
  GP, Inc., general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNIVISION
  CLEVELAND LLC

  
	
   

  	
  UNIVISION TEXAS
  STATIONS LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Univision
  Television Group, Inc., member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  
	
   

  	
  UNIVISION NETWORK PUERTO
  RICO PRODUCTION LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  The Univision
  Network Limited Partnership, member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Univision Communications, Inc., general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Peter H.
  Lori

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Peter H. Lori

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Accounting
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNIVISION CONSUMER PRODUCTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew W.
  Hobson

  	
   

  
	
   

  	
   

  	
  Andrew W. Hobson

  
	
   

  	
   

  	
  Executive Vice President, CFO &
  Treasurer

  
						



 

















 


	
  ADMINISTRATIVE
  AGENT:

  	
  BANK OF AMERICA,
  N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maurice E.
  Washington

  	
   

  
	
   

  	
  Name:

  	
  Maurice E.
  Washington

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  



 

















 


	
  LENDERS:

  	
  BANK OF AMERICA,
  N.A.,

  
	
   

  	
  as a Lender and
  L/C Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher
  T. Ray

  	
   

  
	
   

  	
  Name:

  	
  Christopher T.
  Ray

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  CITICORP USA,
  INC.

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Gregory
  Davis

  	
   

  
	
   

  	
  Name:

  	
  J. Gregory Davis

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lee S.
  Buckner

  	
   

  
	
   

  	
  Name:

  	
  Lee S. Buckner

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristine E.
  Lapic

  	
   

  
	
   

  	
  Name:

  	
  Kristine E.
  Lapic

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  UBS LOAN FINANCE
  LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard T.
  Tavrow

  	
   

  
	
   

  	
  Name:

  	
  Richard T.
  Tavrow

  
	
   

  	
  Title:

  	
  Director,
  Banking Products

  
	
   

  	
   

  	
  Services, US

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pamela Oh

  	
   

  
	
   

  	
  Name:

  	
  Pamela Oh

  
	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
  Banking Products
  Services, US

  



 

















 


	
   

  	
  MIZUHO CORPORATE
  BANK, LTD.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Raymond
  Ventura

  	
   

  
	
   

  	
  Name:

  	
  Raymond Ventura

  
	
   

  	
  Title:

  	
  Deputy General
  Manager

  



 

















 


	
   

  	
  UNION BANK OF
  CALIFORNIA, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Vian

  	
   

  
	
   

  	
  Name:

  	
  Richard Vian

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  THE BANK OF NEW
  YORK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John E.
  Foote

  	
   

  
	
   

  	
  Name:

  	
  John E. Foote

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  BANK OF CHINA,

  
	
   

  	
  NEW YORK BRANCH,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Xiaojing Li

  	
   

  
	
   

  	
  Name:

  	
  Xiaojing Li

  
	
   

  	
  Title:

  	
  General Manager

  



 

















 


	
   

  	
  BANCO BILBAO VIZCAYA

  
	
   

  	
  ARGENTARIA S.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Giampaolo
  Consigliere

  	
   

  
	
   

  	
  Name:

  	
  Giampaolo
  Consigliere

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
  Global Trade
  Finance

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hector O.
  Villegas

  	
   

  
	
   

  	
  Name:

  	
  Hector O.
  Villegas

  
	
   

  	
  Title:

  	
  Global Corporate
  Banking

  



 

















 


	
   

  	
  SUMITOMO MITSUI
  BANKING

  CORPORATION, NEW YORK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Yoshihiro
  Hyakutome

  	
   

  
	
   

  	
  Name:

  	
  Yoshihiro
  Hyakutome

  
	
   

  	
  Title:

  	
  Joint General
  Manager

  
					



 

















 


	
   

  	
  CHANG HWA
  COMMERCIAL BANK, LTD.,

  
	
   

  	
  NEW YORK BRANCH,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jim C.Y.
  Chon

  	
   

  
	
   

  	
  Name:

  	
  Jim C.Y. Chon

  
	
   

  	
  Title:

  	
  Vice President
  and General Manager

  



 

















 


	
   

  	
  E. SUN
  COMMERCIAL BANK LTD.,

  
	
   

  	
  LOS ANGELES
  BRANCH,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Benjamin Lin

  	
   

  
	
   

  	
  Name:

  	
  Benjamin Lin

  
	
   

  	
  Title:

  	
  EVP and General
  Manager

  



 

















 


	
   

  	
  BANK OF
  COMMUNICATIONS,

  
	
   

  	
  NEW YORK BRANCH,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shelley He

  	
   

  
	
   

  	
  Name:

  	
  Shelley He

  
	
   

  	
  Title:

  	
  Deputy General
  Manager