exv4w5






Exhibit 4.5




      




CREDIT AGREEMENT




Dated as of July 2, 2008




among




LENDER PROCESSING SERVICES, INC.,



as Borrower,




The LENDERS Party Hereto,




and




JPMORGAN CHASE BANK, N.A.,



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




 






J.P. MORGAN SECURITIES INC.,

BANC OF AMERICA SECURITIES LLC,

and

WACHOVIA CAPITAL MARKETS, LLC, as

Joint Lead Arrangers and Joint Book Running Managers,




BANK OF AMERICA, N.A.



and



WACHOVIA BANK, NATIONAL ASSOCIATION, as



Syndication Agents




and




SUNTRUST BANK,



WELLS FARGO BANK, NATIONAL ASSOCIATION

RBS CITIZENS, N.A. and

ING CAPITAL LLC, as

Documentation Agents




      














 





       TABLE OF CONTENTS       




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

	Definitions and Accounting Terms

	 
	 	 	 	 
	Section 1.01. Defined Terms
	 	 	1	 
	Section 1.02. Other Interpretive Provisions
	 	 	36	 
	Section 1.03. Accounting Terms
	 	 	37	 
	Section 1.04. Rounding
	 	 	37	 
	Section 1.05. References to Agreements and Laws
	 	 	37	 
	Section 1.06. Times of Day
	 	 	37	 
	Section 1.07. Timing of Payment or Performance
	 	 	38	 
	Section 1.08. Foreign Currency Denominated Debt
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 2

	The Commitments and Credit Extensions

	 
	 	 	 	 
	Section 2.01. The Committed Loans
	 	 	38	 
	Section 2.02. Borrowings, Conversions and Continuations of Committed Loans
	 	 	39	 
	Section 2.03. Letters of Credit
	 	 	41	 
	Section 2.04. Swing Line Loans
	 	 	49	 
	Section 2.05. Prepayments
	 	 	51	 
	Section 2.06. Termination or Reduction of Commitments
	 	 	55	 
	Section 2.07. Repayment of Loans
	 	 	55	 
	Section 2.08. Interest
	 	 	57	 
	Section 2.09. Fees
	 	 	58	 
	Section 2.10. Computation of Interest and Fees
	 	 	58	 
	Section 2.11. Evidence of Indebtedness
	 	 	58	 
	Section 2.12. Payments Generally
	 	 	59	 
	Section 2.13. Sharing of Payments
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 3

	Taxes, Increased Costs and Illegality

	 
	 	 	 	 
	Section 3.01. Taxes
	 	 	62	 
	Section 3.02. Illegality
	 	 	64	 
	Section 3.03. Inability to Determine Rates
	 	 	64	 
	Section 3.04. Increased Cost and Reduced Return
	 	 	64	 
	Section 3.05. Capital Adequacy
	 	 	65	 
	Section 3.06. Reserves on Eurodollar Rate Loans
	 	 	65	 
	Section 3.07. Funding Losses
	 	 	65	 
	Section 3.08. Matters Applicable to All Requests for Compensation
	 	 	66	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Section 3.09. Replacement of Lenders Under Certain Circumstances
	 	 	67	 
	Section 3.10. Survival
	 	 	69	 
	 
	 	 	 	 
	ARTICLE 4

	Conditions Precedent to Credit Extensions

	 
	 	 	 	 
	Section 4.01. Conditions of Initial Credit Extension
	 	 	69	 
	Section 4.02. Conditions to All Credit Extensions
	 	 	71	 
	 
	 	 	 	 
	ARTICLE 5

	Representations and Warranties

	 
	 	 	 	 
	Section 5.01. Existence, Qualification and Power; Compliance with Laws
	 	 	72	 
	Section 5.02. Authorization; No Contravention
	 	 	72	 
	Section 5.03. Governmental Authorization; Other Consents
	 	 	73	 
	Section 5.04. Binding Effect
	 	 	73	 
	Section 5.05. Financial Statements; No Material Adverse Effect
	 	 	73	 
	Section 5.06. Litigation and Environmental Matters
	 	 	74	 
	Section 5.07. Ownership of Property; Liens
	 	 	75	 
	Section 5.08. Transaction Documents
	 	 	75	 
	Section 5.09. Taxes
	 	 	75	 
	Section 5.10. ERISA Compliance
	 	 	75	 
	Section 5.11. Subsidiaries; Equity Interests
	 	 	76	 
	Section 5.12. Margin Regulations; Investment Company Act
	 	 	76	 
	Section 5.13. Disclosure
	 	 	76	 
	Section 5.14. Intellectual Property; Licenses, etc.
	 	 	77	 
	Section 5.15. Solvency
	 	 	77	 
	Section 5.16. Perfection, Etc.
	 	 	77	 
	 
	 	 	 	 
	ARTICLE 6

	Affirmative Covenants

	 
	 	 	 	 
	Section 6.01. Financial Statements
	 	 	78	 
	Section 6.02. Certificates; Other Information
	 	 	79	 
	Section 6.03. Notices
	 	 	80	 
	Section 6.04. Payment of Obligations
	 	 	81	 
	Section 6.05. Preservation of Existence, Etc.
	 	 	81	 
	Section 6.06. Maintenance of Properties
	 	 	81	 
	Section 6.07. Maintenance of Insurance
	 	 	81	 
	Section 6.08. Compliance with Laws
	 	 	82	 
	Section 6.09. Books and Records
	 	 	82	 
	Section 6.10. Inspection Rights
	 	 	82	 
	Section 6.11. Use of Proceeds
	 	 	82	 
	Section 6.12. Covenant to Guarantee Guaranteed Obligations and Give Security
	 	 	82	 
	Section 6.13. Further Assurances
	 	 	85	 
	Section 6.14. Designation of Subsidiaries
	 	 	86	 
	Section 6.15. Interest Rate Protection
	 	 	86	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 7

	Negative Covenants

	 
	 	 	 	 
	Section 7.01. Liens
	 	 	87	 
	Section 7.02. Investments
	 	 	90	 
	Section 7.03. Indebtedness
	 	 	93	 
	Section 7.04. Fundamental Changes
	 	 	95	 
	Section 7.05. Dispositions
	 	 	96	 
	Section 7.06. Restricted Payments
	 	 	97	 
	Section 7.07. Transactions with Affiliates
	 	 	99	 
	Section 7.08. Burdensome Agreements
	 	 	99	 
	Section 7.09. Financial Covenants
	 	 	100	 
	Section 7.10. Prepayments, Etc. of Indebtedness
	 	 	101	 
	 
	 	 	 	 
	ARTICLE 8

	Events of Default and Remedies

	 
	 	 	 	 
	Section 8.01. Events of Default
	 	 	102	 
	Section 8.02. Remedies Upon Event of Default
	 	 	104	 
	Section 8.03. Application of Funds
	 	 	105	 
	 
	 	 	 	 
	ARTICLE 9

	Administrative Agent and Other Agents

	 
	 	 	 	 
	Section 9.01. Appointment and Authorization of Agents
	 	 	106	 
	Section 9.02. Delegation of Duties
	 	 	106	 
	Section 9.03. Liability of Agents
	 	 	107	 
	Section 9.04. Reliance by Agents
	 	 	107	 
	Section 9.05. Notice of Default
	 	 	108	 
	Section 9.06. Credit Decision; Disclosure of Information by Agents
	 	 	108	 
	Section 9.07. Indemnification of Agents
	 	 	108	 
	Section 9.08. Agents in their Individual Capacities
	 	 	109	 
	Section 9.09. Successor Agents
	 	 	109	 
	Section 9.10. Administrative Agent May File Proofs of Claim
	 	 	110	 
	Section 9.11. Collateral and Guaranty Matters
	 	 	111	 
	Section 9.12. Other Agents; Arrangers and Managers
	 	 	111	 
	Section 9.13. Appointment of Supplemental Administrative Agents
	 	 	112	 
	 
	 	 	 	 
	ARTICLE 10

	Miscellaneous

	 
	 	 	 	 
	Section 10.01. Amendments, Etc.
	 	 	113	 
	Section 10.02. Notices and Other Communications; Facsimile Copies
	 	 	115	 
	Section 10.03. No Waiver; Cumulative Remedies
	 	 	116	 
	Section 10.04. Attorney Costs, Expenses and Taxes
	 	 	117	 
	Section 10.05. Indemnification by the Borrower
	 	 	117	 
	Section 10.06. Payments Set Aside
	 	 	118	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 10.07. Assigns
	 	 	119	 
	Section 10.08. Successors
	 	 	122	 
	Section 10.09. Confidentiality
	 	 	123	 
	Section 10.10. Set-off
	 	 	123	 
	Section 10.11. Interest Rate Limitation
	 	 	124	 
	Section 10.12. Counterparts
	 	 	124	 
	Section 10.13. Integration
	 	 	124	 
	Section 10.14. Survival of Representations and Warranties
	 	 	125	 
	Section 10.15. Severability
	 	 	125	 
	Section 10.16. Tax Forms
	 	 	125	 
	Section 10.17. Governing Law
	 	 	128	 
	Section 10.18. Waiver of Right to Trial by Jury
	 	 	128	 
	Section 10.19. Binding Effect
	 	 	129	 
	Section 10.20. No Implied Duties
	 	 	129	 
	Section 10.21. USA Patriot Act Notice
	 	 	129	 
	Section 10.22. Subordination Provisions Applicable Prior to the Spin-Off
	 	 	129	 






iv









 






	 	 	 
	SCHEDULES
	 	 	 

	1.01A	 	Closing Date Subsidiary Guarantors

	1.01B	 	Unrestricted Subsidiaries

	2.01	 	Commitments

	5.06	 	Litigation

	5.11	 	Subsidiaries

	7.01	 	Existing Liens

	7.02	 	Existing Investments

	7.03	 	Existing Indebtedness

	7.07	 	Transactions with Affiliates

	7.08	 	Existing Restrictions

	10.02	 	Administrative Agent’s Office; Certain Addresses for Notices

	 	 	 

	EXHIBITS
	 	 	 

	 	 	Form of

	 	 
	A	 	Committed Loan Notice

	B	 	Swing Line Loan Notice

	C	-1	Term A Note

	C	-2	Term B Note

	C	-3	Revolving Credit Note

	D	 	Compliance Certificate

	E	 	Assignment and Assumption

	F	 	Subsidiary Guaranty

	G	 	Security Agreement

	H	 	Subordination Terms

	I	 	Perfection Certificate

	J	 	Opinions of Counsel

	K	 	Mortgage

















 






CREDIT AGREEMENT




     This CREDIT AGREEMENT ( “Agreement” ) is entered into as of July 2, 2008, among LENDER
PROCESSING SERVICES, INC., a Delaware corporation (the “Borrower” ), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender” ) and JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer.



Recitals




     In connection with the Contribution, the Exchange and the Spin-Off, the Borrower has requested
that the Lenders and the L/C Issuer extend credit to it in the form of (a) a $140,000,000 revolving
credit facility (with a $25,000,000 sub-facility for Letters of Credit) and (b) Term A Loans in an
aggregate principal amount of $700,000,000 and (c) Term B Loans in an aggregate principal amount of
$510,000,000. The Term A Loans, the Term B Loans and the Senior Notes described herein
(collectively, the “Exchange Debt” ) made or purchased by FNIS on the Closing Date (prior to the
Exchange and the Spin-Off) will be made or purchased through the contribution by FNIS to the
Borrower of the Acquired Business. In connection with the Spin-Off, FNIS shall exchange such
Exchange Debt for all of the Existing Tranche B Loans held by the Existing Tranche B Lenders
through a debt-for-debt exchange.



     The Lenders have indicated their willingness to extend such credit and the L/C Issuer has
indicated its willingness to so issue Letters of Credit, in each case, on the terms and subject to
the conditions set forth herein.



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



ARTICLE 1

Definitions and Accounting Terms




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



     “1934 Act” means the Securities Exchange Act of 1934.



     “Acquired Business” means the Lender Processing Services segment of FNIS (which provides
mortgage-related processing services) and other assets that are transferred to the Borrower
pursuant to the Distribution Agreement.



     “Administrative Agent” means JPMCB 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 10.02, or such other address or account as the Administrative
Agent may from time to time notify the Borrower and the Lenders.



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



     “Affiliate” means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified. “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. For the avoidance of doubt, Fidelity National Financial, Inc. and, from and
after the Spin-Off, FNIS, and each of their respective Subsidiaries shall not be deemed to be
Affiliates of the Borrower or any of its Restricted Subsidiaries solely due to overlapping officers
or directors.



     “Agent-Related Persons” means the Administrative Agent, together with its Affiliates, and the
officers, directors, employees, agents and attorneys-in-fact of such Persons.



     “Agents” means, collectively, the Administrative Agent, the Syndication Agents, the
Documentation Agents and the Supplemental Administrative Agents (if any).



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



     “Aggregate Revolving Credit Commitments” means, at any time, the aggregate amount of the
Revolving Credit Commitments of the Revolving Credit Lenders at such time.



     “Agreement” means this Credit Agreement.



     “Applicable Leverage Ratio” means for any period ending (a) prior to September 30, 2008, 3.50:1
and (b) on or after September 30, 2008 a Leverage Ratio that is 25 basis points less than the
maximum permitted Leverage Ratio for the most recently ended test date at such time that is set
forth in the table in Section 7.09(a).



     “Applicable Margin” means a percentage per annum equal to:




     (a) with respect to any Term B Loan, 2.50% per annum in the case of a Eurodollar Rate
Loan, and 1.50% per annum in the case of a Base Rate Loan; and




     (b) with respect to (i) any Term A Loan, (ii) any Revolving Credit Loan, (iii) the
commitment fee to be paid pursuant to Section 2.09(a) (as used below, the “Commitment Fee” )
and (iv) the Letter of Credit fee (the “L/C Fee” ), (A) until the 6-month anniversary of the
Closing Date, the percentages per annum set forth below for Pricing Level 3 and (B)
thereafter, the following percentages per annum based upon the Leverage Ratio as set forth
below:



2









 





	 	 	 	 	 	 	 	 	 
	Term A Loans and Revolving Credit Facility
	 	 	 	 	Eurodollar Rate/	 	 	 	 
	Pricing Level	 	Leverage Ratio	 	L/C Fee	 	Base Rate	 	Commitment Fee
	1

	 	< 2.00:1
	 	2.00%
	 	1.00%
	 	0.375%  
	2
	 	> 2.00:1 and <2.50:1
	 	2.25%
	 	1.25%
	 	0.50%
	3
	 	>2.50:1 and < 3.25:1
	 	2.50%
	 	1.50%
	 	0.50%
	4
	 	>3.25:1
	 	2.75%
	 	1.75%
	 	0.50%





Any increase or decrease in the Applicable Margin resulting from a change in the Leverage Ratio
shall become effective as of the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(b); provided that at the option of the
Administrative Agent or the Required Lenders, Pricing Level 4 shall apply (1) as of the first
Business Day after the date on which a Compliance Certificate was required to have been delivered
but was not delivered, and shall continue to so apply to and including the date on which such
Compliance Certificate is so delivered (and thereafter the Pricing Level otherwise determined in
accordance with this definition shall apply) and (2) as of the first Business Day after an Event of
Default set forth in Section 8.01(a) or (f) shall have occurred and be continuing, and shall
continue to so apply to but excluding the date on which such Event of Default is cured or waived
(and thereafter the Pricing Level otherwise determined in accordance with this definition shall
apply).




     “Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of
such Class, (b) with respect to the Letter of Credit Sublimit, the L/C Issuer and (c) with respect
to the Swing Line Facility, the Swing Line Lender.



     “Approved Foreign Bank” has the meaning specified in clause (k) of the definition of “Cash Equivalents”.



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



     “Arrangers” means J.P. Morgan Securities Inc., Banc of America Securities LLC and Wachovia
Capital Markets, LLC, each in its capacity as a joint lead arranger and joint book running manager
of the Facilities.



     “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 substantially in the form of
Exhibit E.



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



3









 





     “Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP.



     “Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).



     “Available Amount” means, at any time, the sum of:




     (a) the cumulative amount of Excess Cash Flow of the Borrower and its Subsidiaries for
each fiscal year commencing with the fiscal year ending December 31, 2008 minus the portion
of such Excess Cash Flow that has been (or is required to be) applied to the prepayment of
Term Loans in accordance with Section 2.05(b)(iii); plus




     (b) 100% of the Net Cash Proceeds received by the Borrower following the Closing Date
from the issuance of Qualified Equity Interests (except to the extent such proceeds have
been applied pursuant to Section 7.06(g)); minus




     (c) the aggregate amount of any investments outstanding at such time pursuant to
Section 7.02(s), any Restricted Payments made prior to such time pursuant to Section
7.06(h) or Section 7.06(j) or any payment made prior to such time pursuant to Section
7.10(c) or Section 7.10(d).



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



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



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



     “Borrower” has the meaning specified in the introductory paragraph to this Agreement.



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



     “Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing, a Term A Borrowing or a
Term B Borrowing, as the context may require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted by and between banks in
the London interbank eurodollar market.



4









 





     “Capital Expenditures” means, without duplication, any expenditure for any purchase or other
acquisition of any asset which would be classified as a fixed or capital asset on a consolidated
balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP.



     “Capitalized Leases” means all leases that have been or should be, in accordance with GAAP,
recorded as capitalized leases on a balance sheet of the lessee.



     “Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or
other amounts under any Capital Lease.



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



     “Cash Collateral Account” means a deposit account at the Administrative Agent in the name of the
Administrative Agent and under the sole dominion and control of the Administrative Agent, and
otherwise established in a manner satisfactory to the Administrative Agent.



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



     “Cash Equivalents” means any of the following types of Investments, to the extent owned by the
Borrower or any of its Restricted Subsidiaries:




     (a) operating deposit accounts maintained by the Restricted Companies;




     (b) securities issued or unconditionally guaranteed by the United States government or
any agency or instrumentality thereof having maturities of not more than 12 months from the
date of acquisition thereof or other durations approved by the Administrative Agent
(provided, however, that the limitation on maturity shall not apply to any such securities
held by any Regulated Subsidiary);




     (c) securities issued by any state of the United States or any political subdivision
of any such state or any public instrumentality thereof having maturities of not more than
12 months from the date of acquisition thereof or other durations approved by the
Administrative Agent and, at the time of acquisition, having a rating of at least “A-2” or
“P-2” (or long-term ratings of at least “A3” or “A-”) from either S&P or Moody’s, or, with
respect to municipal bonds, a rating of at least MIG 2 or VMIG 2 from Moody’s (or the
equivalent thereof) (provided, however, that the limitation on maturity shall not apply to
any such securities held by any Regulated Subsidiary);




     (d) commercial paper issued by any Lender that is a commercial bank or any bank
holding company owning any Lender;




     (e) commercial paper maturing not more than 12 months after the date of creation
thereof or other durations approved by the Administrative Agent and, at the time of
acquisition, having a rating of at least A-1 or P-1 from either S&P or Moody’s and
commercial paper maturing not more than 90 days after the creation thereof and, at the time
of acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody’s;



5









 






     (f) domestic and eurodollar certificates of deposit or bankers’ acceptances maturing no
more than one year after the date of acquisition thereof or other durations approved by the
Administrative Agent which are either issued by any Lender or any other banks having
combined capital and surplus of not less than $100,000,000 (or in the case of foreign
banks, the dollar equivalent thereof) or are insured by the Federal Deposit Insurance
Corporation for the full amount thereof;




     (g) repurchase agreements with a term of not more than 30 days for, and secured by,
underlying securities of the type without regard to maturity described in clauses (b), (c)
and (f) above entered into with any bank meeting the qualifications specified in clause (f)
above or securities dealers of recognized national standing;




     (h) shares of investment companies that are registered under the Investment Company
Act of 1940 and invest solely in one or more of the types with regard to maturity of
securities described in clauses (b) through (g) above;




     (i) fixed maturity securities which are rated BBB- and above by S&P or Baa3 and above
by Moody’s; provided that the aggregate amount of Investments by any Person in fixed
maturity securities which are rated BBB+, BBB or BBB- by S&P or Baa1, Baa2 or Baa3 by Moody’s shall not exceed 10% of the aggregate amount of Investments in fixed maturity securities
by such Person; and




     (j) solely with respect to any Foreign Subsidiary, non-Dollar denominated (i)
certificates of deposit of, bankers acceptances of, or time deposits with, any commercial
bank which is organized and existing under the laws of the country in which such Foreign
Subsidiary maintains its chief executive office and principal place of business provided
such country is a member of the Organization for Economic Cooperation and Development, and
whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent thereof
or from Moody’s is at least “P-1” or the equivalent thereof (any such bank being an “Approved
Foreign Bank” ) and maturing within 12 months of the date of acquisition or other durations
approved by the Administrative Agent and (ii) (A) equivalents of demand deposit accounts
which are maintained with an Approved Foreign Bank or (B) other temporary investments (with
maturities less than 12 months or other durations approved by the Administrative Agent) of
a non-speculative nature which are made with preservation of principal as the primary
objective and in each case in accordance with normal investment practices for cash
management of such Foreign Subsidiaries.



     “Cash Management Practices” means the cash, Cash Equivalent and short-term investment management
practices of the Restricted Companies as approved by the board of directors or chief financial
officer of the Borrower from time to time, including any Indebtedness of the Restricted Companies
having a maturity of 92 days or less representing borrowings from any financial institution with
which the Restricted Companies have a depository or other investment relationship in connection
with such practices (or any Affiliate of such financial institution), which borrowings may be
secured by the cash and Cash Equivalents purchased by the relevant Restricted Company with the
proceeds of such borrowings.



6









 





     “Cash on Hand” means, on any day, the sum of the amount of cash, Cash Equivalents (without
giving effect to the proviso in clause (b) or (c) of the definition of “Cash Equivalents”) and other
short-term investments of the Consolidated Companies as set forth on the balance sheet of the
Consolidated Companies on the last day of each calendar month ending during the four fiscal
quarters most recently ended on or prior to such day, divided by twelve (it being understood that
such amount shall exclude in any event any cash and Cash Equivalents identified on such balance
sheet as “restricted” or otherwise subject to a security interest in favor of any other Person (other
than non-consensual Liens permitted under Section 7.01)).



     “Casualty Event” means any event that gives rise to the receipt by the Borrower or Restricted
Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed
assets or real property (including any improvements thereon) to replace or repair such equipment,
fixed assets or real property.



     “Change of Control” means the earliest to occur of:



     (a) a “person” or “group” (as such terms are used in Sections 13(d) and 14(d)(2) of the 1934 Act,
but excluding any employee benefit plan of such person and its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such
plan), shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the 1934
Act), directly or indirectly, of more than 35% of the then outstanding voting stock of the
Borrower;



     (b) during any period of twelve consecutive months, the board of directors of the Borrower
shall cease to consist of a majority of the Continuing Directors; and



     (c) any “Change of Control” (or any comparable term) in any document pertaining to any Permitted
Subordinated Indebtedness with an aggregate outstanding principal amount in excess of the Threshold
Amount.



     “Class” (a) when used with respect to Lenders, refers to whether such Lenders are Revolving
Credit Lenders, Term A Lenders or Term B Lenders, (b) when used with respect to Commitments, refers
to whether such Commitments are Revolving Credit Commitments, Term A Commitments or Term B
Commitments and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans,
or the Loans comprising such Borrowing, are Revolving Credit Loans, Term A Loans or Term B Loans.



     “Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied
or waived in accordance with Section 10.01, which date is July 2, 2008.



     “Closing Date Forecasts” has the meaning specified in Section 5.05(c).



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



     “Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the
other property and assets that are or are required under the terms hereof or of the Collateral



7









 







Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured
Parties.



     “Collateral Agent” means JPMCB in its capacity as collateral agent, or any successor collateral
agent.



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



     “Commitment” means a Term A Commitment, Term B Commitment or Revolving Credit Commitment, as the
context may require.



     “Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same
Type and Class and, in the case of Eurodollar Rate Loans, having the same Interest Period.



     “Committed Loan” means a Term Loan or a Revolving Credit Loan.



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



     “Compensation Period” has the meaning specified in Section 2.12(b)(ii).



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



     “Consolidated Companies” means the Borrower and its Consolidated Subsidiaries.



     “Consolidated EBITDA” means, as of any date for the applicable period ending on such date with
respect to any Person and its Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net
Income, plus (b) an amount which, in the determination of Consolidated Net Income for such period,
has been deducted for, without duplication,




     (i) total interest expense,




     (ii) income, franchise and similar taxes,




     (iii) depreciation and amortization expense (including amortization of intangibles,
goodwill and organization costs),




     (iv) letter of credit fees,



8









 






     (v) non-cash expenses resulting from any employee benefit or management compensation plan or
the grant of stock and stock options to employees of the Borrower or any of its Subsidiaries
pursuant to a written plan or agreement or the treatment of such options under variable plan
accounting,




     (vi) all extraordinary charges,




     (vii) non-cash amortization (or write offs) of financing costs (including debt discount,
debt issuance costs and commissions and other fees associated with Indebtedness, including the
Loans) of such Person and its Subsidiaries,




     (viii) cash expenses incurred in connection with the Transaction or, to the extent permitted
hereunder, any Investment permitted under Section 7.02 (including any Permitted Acquisition),
Equity Issuance or Debt Issuance (in each case, whether or not consummated),




     (ix) any losses realized upon the Disposition of property or assets outside of the
ordinary course of business,




     (x) to the extent actually reimbursed, expenses incurred to the extent covered by
indemnification provisions in any agreement in connection with a Permitted Acquisition,




     (xi) to the extent covered by insurance, expenses with respect to liability or casualty
events or business interruption,




     (xii) any non-cash purchase accounting adjustment and any non-cash write-up, write-down or
write-off with respect to re-valuing assets and liabilities in connection with the Contribution,
the Spin-Off or any Investment permitted under Section 7.02 (including any Permitted Acquisition),




     (xiii) non-cash losses from Joint Ventures and non-cash minority interest reductions,




     (xiv) fees and expenses in connection with exchanges or refinancings permitted by Section
7.10,




     (xv) (A) non-cash, non-recurring charges with respect to employee severance, (B) other
non-cash, non-recurring charges so long as such charges described in this clause (B) do not result
in a cash charge in a future period (except as permitted under clause (C) below) and (C)
non-recurring charges other than those referred to in clauses (A) and (B) so long as such charges
described in this clause (C) do not exceed $10,000,000 during any fiscal year, and




     (xvi) other expenses and charges of such Person and its Subsidiaries reducing Consolidated
Net Income which do not represent a cash item in such period or any future period; minus




9











 





     (c) an amount which, in the determination of Consolidated Net Income, has been included for




     (i) (A) non-cash gains (other than with respect to cash actually received) and (B) all
extraordinary gains, and




     (ii) any gains realized upon the Disposition of property outside of the ordinary
course of business, plus/minus



     (d) unrealized losses/gains in respect of Swap Contracts,


all as determined in accordance with GAAP.




     “Consolidated Interest Charges” means, as of any date for the applicable period ending on such
date with respect to any Person and its Subsidiaries on a consolidated basis, the amount payable
with respect to such period in respect of (a) total interest expense payable in cash plus
pay-in-kind interest in respect of Indebtedness (other than Specified Non-Recourse Indebtedness) of
the type set forth in clause (a) of the definition thereof (including the interest component under
Capitalized Leases, but excluding, to the extent included in interest expense, (i) fees and
expenses associated with the consummation of the Transaction, (ii) annual agency fees paid to the
Administrative Agent, (iii) costs associated with obtaining Swap Contracts, (iv) fees and expenses
associated with any Investment permitted under Section 7.02, Equity Issuance or Debt Issuance
(whether or not consummated) and (v) amortization of deferred financing costs), minus (b) interest
income with respect to Cash on Hand of such Person and its Subsidiaries earned during such period,
in each case as determined in accordance with GAAP.



     “Consolidated Net Income” means, as of any date for the applicable period ending on such date
with respect to any Person and its Subsidiaries on a consolidated basis, net income (excluding,
without duplication, (i) extraordinary items and (ii) any amounts attributable to Investments in
any Joint Venture to the extent that (A) such amounts were not earned by such Joint Venture during
the applicable period, (B) there exists any legal or contractual encumbrance or restriction on the
ability of such Joint Venture to pay dividends or make any other distributions in cash on the
Equity Interests of such Joint Venture held by such Person and its Subsidiaries, but only to the
extent so encumbered or restricted or (C) such Person does not have the right to receive or the
ability to cause to be distributed its pro rata share of all earnings of such Joint Venture) as
determined in accordance with GAAP; provided that Consolidated Net Income for any such period shall
not include (w) the cumulative effect of a change in accounting principles during such period, (x)
any net after-tax income or loss (less all fees and expenses or charges relating thereto)
attributable to the early extinguishment of indebtedness, (y) any non-cash charges resulting from
mark-to-market accounting relating to Equity Interests and (z) any non-cash impairment charges
resulting from the application of Statement of Financial Accounting
Standards No. 142 — Goodwill and
Other Intangibles and No. 144 —  Accounting for the Impairment or Disposal of Long-Lived
Assets and the amortization of intangibles including arising pursuant to Statement of
Financial Accounting Standards No. 141 —  Business
Combinations.



10









 





     “Consolidated Shareholders Equity” means, as of any date of determination, the consolidated
shareholders’ equity of the Borrower and its Subsidiaries that
would be reported as shareholders’ equity on a consolidated balance sheet of the Borrower and its Subsidiaries prepared as of such
date in accordance with GAAP.



     “Consolidated Subsidiaries” means, with respect to any Person at any time, all
Subsidiaries of such Person that would be consolidated in the financial statements of such Person
on such date prepared in accordance with GAAP, but excluding any such consolidated Subsidiary of
such Person that would not be so consolidated but for the effect of FIN 46.



     “Continuing Directors” shall mean the directors of the Borrower on the Closing Date after giving
effect to the Spin-Off, and each other director, if, in each case, such other directors’ nomination
for election to the board of directors of the Borrower is recommended by a majority of the then
Continuing Directors.



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



     “Contribution” means the contribution by FNIS of all of the assets, liabilities and operations
of the Acquired Business in exchange for equity interests in the Borrower and the Exchange Debt
issued by the Borrower to FNIS in accordance with the Distribution Agreement.



     “Control”
has the meaning specified in the definition of “Affiliate.”



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



     “Debt Issuance” means the issuance by any Person and its Subsidiaries of any Indebtedness
for borrowed money.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, general 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 an interest rate equal to (a) the Base Rate plus (b) the Applicable Margin,
if any, applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a
Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Margin) otherwise applicable to such Loan plus 2.0% per annum, in each
case, to the fullest extent permitted by applicable Laws.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Term Loans,
Revolving Credit Loans, participations in L/C Obligations or participations in



11









 







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



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any
property by any Person (including any sale and leaseback transaction and any sale of Equity
Interests, but excluding any issuance by such Person of its own Equity Interests), 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.



     “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of
the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in
cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the Term B Loan Maturity Date.



     “Dissenting Lender” has the meaning specified in Section 10.01(d).



     “Distribution Agreement” means the Contribution and Distribution Agreement dated as of June 13,
2008, between the Borrower and FNIS.



     “Documentation Agents” means SunTrust Bank, Wells Fargo Bank, National Association, RBS
Citizens, N.A. and ING Capital LLC, as documentation agents under this Agreement.



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



     “Domestic Restricted Subsidiary” means any Restricted Subsidiary that is a Domestic Subsidiary.



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



     “Eligible Assignee” means (a) in the case of any assignment of a Term Loan, (i) a Lender, (ii)
an Affiliate of a Lender, (iii) an Approved Fund and (iv) any other Person (other than a natural
person) approved by (A) the Administrative Agent and (B) unless an Event of Default has occurred
and is continuing under Section 8.01(a) or 8.01(f), the Borrower (each such approval not to be
unreasonably withheld or delayed) and (b) in the case of any assignment of a Revolving Credit
Commitment, any Person (other than a natural person) approved by (A) the Administrative Agent, (B)
the L/C Issuer, (C) the Swing Line Lender and (D) unless (x) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund or (y) an Event of Default has occurred and is continuing
under Section 8.01(a) or 8.01(f), the Borrower (each such



12









 







approval not to be unreasonably withheld or delayed); provided that in each case of clauses (a) and
(b), neither the Borrower nor any Affiliate of the Borrower shall be an Eligible Assignee.



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



     “Environmental Liability” means any liability, contingent or otherwise (including any liability
for damages, costs of environmental remediation, fines, penalties or indemnities), of any
Restricted Company 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, interests, rights,
participations or other equivalents (however designated) of capital stock of (or other ownership or
profit interests or units in) such Person and all of the warrants, options or other rights for the
purchase, acquisition or exchange from such Person of any of the foregoing (including through
convertible securities).



     “Equity Issuance” means any issuance for cash by any Person and its Subsidiaries to any other
Person of (a) its Equity Interests, (b) any of its Equity Interests pursuant to the exercise of
options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt
securities to equity or (d) any options or warrants relating to its Equity Interests. A Disposition
shall not be deemed to be an Equity Issuance.



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which



13









 







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 not yet due or premiums due but not
yet delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Rate” means, for any Interest Period with respect to any Eurodollar Rate Loan:




     (a) the rate per annum equal to the rate determined by the Administrative Agent to be
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), for deposits in Dollars (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or




     (b) if the rate referenced in the preceding clause (a) is not available, the rate per
annum determined by the Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in immediately available
funds in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by JPMCB and with a term equivalent to such Interest Period would be offered by
JPMCB’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 first day
of such Interest Period.



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



     “Eurodollar Rate Revolving Credit Loan” means a Eurodollar Rate Loan that is a Revolving Credit Loan.



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



     “Excess Cash Flow” means for any fiscal year of the Borrower, the excess, if any, of:




     (a) the sum, without duplication, of




     (i) Consolidated Net Income for such fiscal year,




     (ii) the amount of all non-cash charges (including depreciation and amortization)
deducted in arriving at such Consolidated Net Income,




     (iii) decreases in Working Capital for such fiscal year, and




     (iv) the aggregate net amount of non-cash loss on the disposition of property by the Borrower and its Subsidiaries during such fiscal year other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income;



14









 





minus





     (b) the sum, without duplication, of




     (i) the amount of all non-cash credits included in arriving at such Consolidated
Net Income,




     (ii) Capital Expenditures and Permitted Acquisitions (including any earnout or other
payments made with respect to such Permitted Acquisitions) made in cash to the extent not
financed with (x) the proceeds of long-term Indebtedness (other than the Obligations) or
(y) the proceeds of asset Dispositions and Casualty Events referred to in clause (b)(vi)
below for such fiscal year or any prior fiscal year,




     (iii) the aggregate amount of all regularly scheduled principal payments of
Indebtedness (including the Term Loans and Capitalized Leases) of the Borrower and its
Subsidiaries made during such fiscal year (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in commitments
thereunder),




     (iv) increases in Working Capital for such fiscal year,




     (v) the aggregate net amount of non-cash gain on the disposition of property by the
Borrower and its Subsidiaries during such fiscal year (other than sales of inventory in
the ordinary course of business), to the extent included in arriving at such Consolidated
Net Income,




     (vi) proceeds of all Dispositions of assets pursuant to Section 7.05(l)(ii), Section
7.05(q) or Section 7.05(t) and proceeds of all Casualty Events, in each case received in
such fiscal year and to the extent included in arriving at such Consolidated Net Income,




     (vii) proceeds received by the Restricted Companies from insurance claims
(including, without limitation, with respect to casualty events, business interruption
or product recalls) which reimburse prior business expenses, to the extent included in
arriving at such Consolidated Net Income,




     (viii) cash payments made in satisfaction of non-current liabilities (other than (A)
payments in respect of Indebtedness under this Agreement or (B) regularly scheduled
principal payments of any other Indebtedness),




     (ix) cash fees and expenses incurred in connection with any Investment permitted under
Section 7.02, Equity Issuance or Debt Issuance (whether or not consummated),




     (x) cash indemnity payments received pursuant to indemnification provisions in any
agreement in connection with the Contribution, the Spin-Off, any Permitted Acquisition
or any other Investment permitted hereunder; and



15









 






     (xi) increases in the regulatory capital of each Regulated Subsidiary, which
shall be calculated by reference to the increase in the minimum statutory capital
and surplus of such Regulated Subsidiary during such fiscal period times 110%.



     “Exchange” means the exchange by FNIS of 100% of the Exchange Debt for all of the Existing
Tranche B Loans through a debt-for-debt exchange in accordance with the Exchange Agreement.



     “Exchange Agreement” means the Exchange Agreement dated as of June 18, 2008 among FNIS, the
Existing Tranche B Lenders and the Borrower.



     “Exchange Debt” has the meaning specified in the recitals to this Agreement.



     “Existing Tranche B Lenders” means the holders of Existing Tranche B Loans under the Existing
FNIS Credit Agreement immediately prior to the Exchange.



     “Existing FNIS Credit Agreement” means that certain Credit Agreement dated as of January 18,
2007 (as amended by Amendment No. 1 dated as of July 30, 2007 and effective as of September 12,
2007), among FNIS and certain of its Subsidiaries, the lenders party thereto, JPMorgan Chase Bank,
N.A., as administrative agent, swing line lender and L/C issuer, and Bank of America, N.A., as
swing line lender.



     “Existing Tranche B Loans” means the Tranche B Term Loans provided under the Existing FNIS
Credit Agreement.



     “Facility” means the Term A Loans, the Term B Loans, the Revolving Credit Facility, the Swing
Line Sublimit or the Letter of Credit Sublimit, as the context may require.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the immediately
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
JPMCB on such day on such transactions as determined by the Administrative Agent.



     “FNIS” means Fidelity National Information Services, Inc., a Georgia corporation.



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



16









 





     “Foreign Restricted Subsidiary” means any Restricted Subsidiary that is a Foreign Subsidiary.



     “Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower which is not a
Domestic Subsidiary.



     “Form 10” means the Registration Statement of the Borrower on Form 10 (File No. 1-34005), as
amended and as filed with the SEC as of the date of this Agreement.



     “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 engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of credit.



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



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.



     “Granting Lender” has the meaning specified in Section 10.07(i).



     “Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term
“Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary
course of business, or customary and reasonable indemnity obligations



17









 







in effect on the Closing Date or entered into in connection with any acquisition or Disposition of
assets permitted under this Agreement (other than such obligations with respect to Indebtedness).
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.



     “Guaranteed Obligations” means, in respect of the Subsidiary Guaranty of any Subsidiary
Guarantor, (a) all Obligations of the Borrower, (b) all Secured Hedging Obligations of each other
Loan Party and (c) all Secured Cash Management Obligations of each other Loan Party, in each case
of the obligations described above, now or hereafter existing (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing
obligations), whether direct or indirect, absolute or contingent, and whether for principal,
interest, fees, indemnities, contract causes of action, costs, expenses or otherwise.



     “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 as hazardous, toxic, pollutants or contaminants or words of similar meaning or
effect.



     “Historical Financial Statements” has the meaning specified in Section 5.05(a).



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



     “Immaterial Subsidiaries” means, as of any date of determination, those Restricted Subsidiaries
that, individually or collectively, for the four fiscal quarter period ended most recently prior to
such date of determination constituted (i) less than 10% of the Consolidated EBITDA of the
Restricted Companies and (ii) less than 5% of Total Assets of the Restricted Companies.



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




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




     (b) the maximum available amount of all letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and
similar instruments issued or created by or for the account of such Person;



18









 






     (c) net obligations of such Person under Swap Contracts (with the amount of such net
obligations being deemed to be the aggregate Swap Termination Value thereof as of such
date);




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than (i) trade accounts payable in the ordinary course of business, (ii)
any earn-out obligation until such obligation appears in the liabilities section of the
balance sheet of such Person, and (iii) any earn-out obligation that appears in the
liabilities section of the balance sheet of such Person, to the extent (A) such Person is
indemnified for the payment thereof by a solvent Person reasonably acceptable to the
Administrative Agent or (B) amounts to be applied to the payment therefor are in escrow);




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




     (f) all Attributable Indebtedness;




     (g) all obligations of such Person in respect of Disqualified Equity Interests;




     (h) indebtedness or similar financing obligations of such Person under any
Securitization Financing; and




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



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is non-recourse to such Person. The amount of Indebtedness of any Person for purposes
of clause (e) above shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount of
such Indebtedness and (y) the fair market value of the property encumbered thereby as determined by
such Person in good faith.



     “Indemnified Liabilities” has the meaning set forth in Section 10.05.



     “Indemnitees” has the meaning set forth in Section 10.05. 


     “Information”
has the meaning specified in Section 10.09.



     “Initial Term Lender” means FNIS.



     “Intellectual Property Security Agreement” means, collectively, the Copyright Security
Agreement, the Trademark Security Agreement and the Patent Security Agreement, substantially in the
forms attached to the Security Agreement together with each other



19









 







intellectual property security agreement executed and delivered pursuant to Section 6.12 or the
Security Agreement.



     “Interest Coverage Ratio” means, as of the end of any fiscal quarter of the Borrower for the
four fiscal quarter period ending on such date, the ratio of (a) Consolidated EBITDA of the
Borrower and its Subsidiaries for such period to (b) Consolidated Interest Charges of the Borrower
and its Subsidiaries for such period. If any determination of the Consolidated Interest Charges of
the Borrower and its Subsidiaries is required to be made for a period of four fiscal quarters (in
connection with computing the Interest Coverage Ratio) at a time when fewer than four full fiscal
quarters have elapsed since the Closing Date, such determination of the Consolidated Interest
Charges shall be made for the period elapsed from the Closing Date through the most recent fiscal
quarter then ended (annualized on a simple arithmetic basis).



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; provided 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 or any Specified Rate
Loan, the last Business Day of each March, June, September and December and the Maturity Date of
the Facility under which such Loan was made.



     “Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending
on the date that is one month, two months, three months or six months thereafter, or to the extent
available (as determined by each relevant Lender) to all relevant Lenders, one week, two weeks,
nine months or twelve months thereafter, as selected by the Borrower in its Committed Loan Notice
(or such other period, which is less than twelve months, as agreed by the Borrower and all
applicable Lenders); 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 immediately
preceding Business Day;




     (ii) other than with respect to one and two week Interest Periods, 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 of the Facility under
which such Loan was made.



     “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 or debt or
other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity



20









 







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 incurs debt of the type
referred to in clause (h) of the definition of “Indebtedness” set forth in this Section 1.01 in
respect of such Person or (c) the purchase or other acquisition (in one transaction or a series of
transactions) of all or substantially all of the property and assets or business of another Person
or assets constituting a business unit, line of business or division of such Person. For all
purposes of this Agreement, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such Investment. The
amount expended in any Investment, if other than in cash, will be deemed to be the fair market
value of the relevant non-cash assets, as determined in good faith by the board of directors of the
Borrower and evidenced by a board resolution.



     “IP Rights” has the meaning set forth in Section 5.14.



     “IRS” means the United States Internal Revenue Service.



     “Jacksonville Corporate Campus” means any and all real property located in the City of
Jacksonville, Florida which at any time is owned by any Restricted Company, including, without
limitation, that certain real property commonly known as 601 Riverside Avenue, Jacksonville,
Florida.



     “Joint Venture” means (a) any Person which would constitute an “equity method investee” of the
Borrower or any of its Subsidiaries, (b) any other Person designated by the Borrower in writing to
the Administrative Agent (which designation shall be irrevocable) as a “Joint Venture” for purposes
of this Credit Agreement and at least 50% but less than 100% of whose Equity Interests are directly
owned by the Borrower or any of its Subsidiaries, and (c) any Person in whom the Borrower or any of
its Subsidiaries beneficially owns any Equity Interest that is not a Subsidiary.



     “JPMCB” means JPMorgan Chase Bank, N. A. and its successors.



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



     “L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.



     “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 Revolving Credit Borrowing.



21









 





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



     “L/C Issuer” means JPMCB or any other Revolving Lender (or Affiliate thereof) that agrees in
writing with the Borrower and the Administrative Agent to act as an L/C Issuer, in each case in its
capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate undrawn amount of all
outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings.



     “Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the
context requires, includes the L/C Issuer and the Swing Line Lender.



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



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



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



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



     “Letter of Credit Sublimit” means an amount equal to $25,000,000. The Letter of Credit Sublimit
is part of, and not in addition to, the Revolving Credit Facility.



     “Leverage Ratio” means, as of the end of any fiscal quarter of the Borrower for the four fiscal
quarter period ending on such date, the ratio of (a) Total Indebtedness on the last day of such
period to (b) Consolidated EBITDA of the Consolidated Companies for such period; provided that the
amount of Total Indebtedness determined pursuant to clause (a) above at any date shall be reduced
in the case of any such Indebtedness of a Majority-Owned Subsidiary by an amount directly
proportional to the amount (if any) by which Consolidated EBITDA determined pursuant to clause (b)
above for such date was reduced (including through the calculation of Consolidated Net Income) by
the elimination of a minority interest in such Majority-Owned Subsidiary owned by a Person other
than a Consolidated Company.



     “Lien” means any mortgage, pledge, hypothecation, assignment for security, deposit arrangement
for security, encumbrance, lien (statutory or other), charge, or preference, priority or other
security interest or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any easement, right of way or other



22









 







encumbrance on title to real property, and any Capitalized Lease having substantially the same
economic effect as any of the foregoing but excluding operating leases).



     “Like-Kind-Exchange Companies” means Investment Property Exchange Services, Inc. and any other
Restricted Companies that are engaged in like-kind-exchange operations.



     “Loan” means an extension of credit by a Lender to the Borrower under Article 2 in the form of a
Term Loan, a Revolving Credit Loan or a Swing Line Loan.



     “Loan Documents” means, collectively, (a) this Agreement, (b) the Collateral
Documents, (c) the Notes, (d) the Subsidiary Guaranty and (e) each Letter of Credit Application.



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



     “Majority-Owned Subsidiary” means a Consolidated Subsidiary that is not wholly-owned (directly
or indirectly) by the Borrower.



     “Material Adverse Effect” means (a) a material adverse effect on the business, assets,
liabilities, results of operations or financial position of the Borrower and its Restricted
Subsidiaries taken as a whole, (b) a material and adverse effect on the ability of any Loan Party
to perform its obligations under the Loan Documents or (c) a material and adverse effect on the
rights and remedies of the Lenders under the Loan Documents.



     “Material Companies” means the Borrower and all Restricted Subsidiaries (other than Immaterial
Subsidiaries).



     “Material Real Property” means fee owned real property with a value in excess of $5,000,000;
provided, however, that the following are hereby deemed not to constitute Material Real Property:
(i) the Jacksonville Corporate Campus and (ii) any real property obtained or held by any
Consolidated Company in connection with its like-kind exchange services or other services provided
to third parties that involve processing or taking title or other interests in real property.



     “Maturity Date” means (a) with respect to the Revolving Credit Facility and the Swing Line
Facility, the Revolving Credit Maturity Date, (b) with respect to the Term A Loans, the Term A Loan
Maturity Date and (c) with respect to the Term B Loans, the Term B Loan Maturity Date.



     “Maximum Rate” has the meaning specified in Section 10.11.



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



     “Mortgage” means, collectively, each mortgage executed and delivered on or about the Closing
Date and thereafter pursuant to Section 6.12, in each case substantially in the form of Exhibit K.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3)
of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to



23









 







make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Cash Proceeds” means:



     (a) with respect to the Disposition of any asset by any Restricted Company or any Casualty
Event, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with
such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of
deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received and, with respect to any Casualty Event, any insurance proceeds or
condemnation awards in respect of such Casualty Event actually received by or paid to or for the
account of such Restricted Company) over (ii) the sum of (A) the principal amount of any
Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is
repaid in connection with such Disposition or Casualty Event (other than Indebtedness under the
Loan Documents), (B) the out-of-pocket expenses (including
attorneys’ fees, investment banking fees,
underwriting fees, survey costs, title insurance premiums, and related search and recording
charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees) actually incurred by such Restricted Company in connection
with such Disposition or Casualty Event, (C) taxes paid or reasonably estimated to be payable by
such Restricted Company or any of the direct or indirect members thereof and attributable to such
Disposition (including, in respect of any proceeds received in connection with a Disposition or
Casualty Event of any asset of any Foreign Subsidiary, deductions in respect of withholding taxes
that are or would be payable in cash if such funds were repatriated to the United States), (D)
payments required to be made to holders of minority interests in Restricted Subsidiaries as a
result of such Disposition, and (E) any reserve for adjustment in respect of (1) the sale price of
such asset or assets established in accordance with GAAP and (2) any liabilities associated with
such asset or assets and retained by such Restricted Company after such sale or other disposition
thereof, including pension and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with such transaction
and it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents (I)
received upon the Disposition of any non-cash consideration received by such Restricted Company in
any such Disposition and (II) upon the reversal (without the satisfaction of any applicable
liabilities in cash in a corresponding amount) of any reserve described in clause (E) of the
preceding sentence or, if such liabilities have not been satisfied in cash and such reserve not
reversed within 365 days after such Disposition or Casualty Event, the amount of such reserve;
provided that (x) no proceeds realized in a single transaction or series of related transactions
shall constitute Net Cash Proceeds unless such proceeds shall exceed $5,000,000 and (y) no proceeds
shall constitute Net Cash Proceeds under this clause (a) in any fiscal year until the aggregate
amount of all such proceeds in such fiscal year shall exceed $15,000,000 (and thereafter only
proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a));



     (b) with respect to the incurrence or issuance of any Indebtedness by any Restricted Company,
the excess, if any, of (i) the sum of the cash received in connection with such sale over (ii) the
investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket
expenses and other customary expenses,
incurred by such Restricted Company (or, in the case of taxes, any member thereof) in
connection with such incurrence or issuance and, in the




24











 




case of Indebtedness of any Foreign Subsidiary, deductions in respect of withholding taxes that are
or would otherwise be payable in cash if such funds were repatriated to the United States, and




     (c) with respect to the issuance of any Qualified Equity Interest by any Restricted Company,
the excess of (i) the sum of the cash and Cash Equivalents received in connection with such
issuance over (ii) all taxes (including, in respect of any proceeds received in connection with the
issuance of Equity Interests of any Foreign Subsidiary, deductions in respect of withholding taxes
that are or would otherwise be payable in cash if such funds were repatriated to the United States)
and fees (including investment banking fees, underwriting discounts, commissions, costs and other
out-of-pocket expenses and other customary expenses) incurred by such Restricted Company (or, in
the case of taxes, any member thereof) in connection with such issuance.



     “Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).



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



     “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 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. Without limiting the generality of the
foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation
to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, Attorney Costs,
indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any
Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.



     “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-US. 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” has the meaning specified in Section 3.01(c).



     “Outstanding Amount” means (a) with respect to the Term Loans, Revolving Credit Loans and Swing
Line Loans on any date, the principal amount thereof after giving effect to any borrowings and
prepayments or repayments of Term Loans, Revolving Credit Loans (including



25









 




any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Borrowings as a
Revolving Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and
(b) with respect to any L/C Obligations on any date, the aggregate outstanding amount thereof on
such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings
under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions
in the maximum amount available for drawing under Letters of Credit taking effect on such date.




     “Participant” has the meaning specified in Section 10.07(f).



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Permitted Acquisition” has the meaning specified in Section 7.02(h).



     “Permitted Encumbrances” has the meaning specified in the Mortgages.



     “Permitted Refinancing” means, with respect to any Person, any modification, refinancing,
refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal
amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended
except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension and by an amount equal to any existing commitments
unutilized thereunder or as otherwise permitted pursuant to Section 7.03, (b) such modification,
refinancing, refunding, renewal or extension has a final maturity date equal to or later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded,
renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or
extended is subordinated in right of payment to the Obligations, such modification, refinancing,
refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at
least as favorable to the Lenders as those contained in the documentation governing the
Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, (d) the
terms and conditions (including, if applicable, as to collateral) of any such modified, refinanced,
refunded, renewed or extended Indebtedness are not materially less favorable to the Loan Parties or
the Lenders than the terms and conditions of the Indebtedness being modified,
refinanced, refunded, renewed or extended, taken as a whole, (e) such modification,
refinancing, refunding, renewal or extension is incurred by the Person who is the obligor (or
another of the Restricted Companies, at the election of the Borrower, provided



26









 




that if the obligor is a Loan Party, such other Restricted Company must also be a Loan Party) on
the Indebtedness being modified, refinanced, refunded, renewed or extended, and such new or
additional obligors as are or become Loan Parties in accordance with Section 6.12 and with respect
to subordinated Indebtedness the obligations of such obligors shall be subordinated in right of
payment to the Obligations on terms at least as favorable to the Lenders as those contained in
documentation governing the Indebtedness, taken as a whole and (f) at the time thereof, no Event of
Default shall have occurred and be continuing.




     “Permitted Senior Indebtedness” means any unsecured Indebtedness (other than Permitted
Subordinated Indebtedness) that (a) is not scheduled to mature prior to the date that is 91 days
after the Term B Loan Maturity Date, (b) has no scheduled amortization or payments of principal
prior to the Term B Loan Maturity Date and (c) has mandatory prepayment, repurchase or redemption
provisions no more onerous or expansive in scope, taken as a whole, than those contained in this
Agreement for the Term B Loans or are otherwise reasonably acceptable to the Administrative Agent.



     “Permitted Subordinated Indebtedness” means any unsecured Indebtedness that (a) is expressly
subordinated to the prior payment in full in cash of the Obligations on terms not materially less
favorable to the Lenders, taken as a whole, than the terms set forth on Exhibit H hereto or on such
other terms as shall be reasonably acceptable to the Administrative Agent, (b) is not scheduled to
mature prior to the date that is 91 days after the Term B Loan Maturity Date, (c) has no scheduled
amortization or payments of principal prior to the Term B Loan Maturity Date and (d) has mandatory
prepayment, repurchase or redemption provisions no more onerous or expansive in scope, taken as a
whole, than those contained in this Agreement for the Term B Loans or are otherwise reasonably
acceptable to the Administrative Agent.



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



     “Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA) maintained or sponsored by the Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Pledged Debt” has the meaning specified in the Security Agreement.



     “Pledged Equity” has the meaning specified in the Security Agreement.



     “Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, for purposes of calculating
compliance with the Leverage Ratio or each of the financial covenants set forth in Section 7.09 in
respect of a Specified Transaction, that such Specified Transaction and the following transactions
in connection therewith shall be deemed to have occurred as of the first day of the applicable
period of measurement in such covenant: (a) income statement items (whether positive or negative)
attributable to the property or Person subject to such Specified Transaction, in the case of a
Permitted Acquisition or Investment described in the definition of “Specified Transaction”, shall be
included, (b) any retirement of Indebtedness, and



27









 




(c) any Indebtedness incurred or assumed by any Restricted Company in connection with such
Specified Transaction, and 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; provided that the foregoing pro forma adjustments may be applied to
the Leverage Ratio and the financial covenants set forth in Section 7.09 to the extent that such
adjustments are consistent with the definition of Consolidated EBITDA and may take into account
cost savings in an amount not to exceed $15,000,000 in the aggregate for all such cost savings in
any fiscal year for which the necessary steps have been implemented or are reasonably expected to
be implemented within twelve months after the closing of the applicable Permitted Acquisition.




     “Pro Forma Financial Statements” has the meaning specified in Section 5.05(d).



     “Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is the amount of the
Commitments of such Lender under the applicable Facility or Facilities at such time and the
denominator of which is the amount of the Aggregate Commitments under the applicable Facility or
Facilities at such time.



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



     “Qualified Equity Interests” means Equity Interests of the Borrower other than Disqualified
Equity Interests.



     “Register” has the meaning set forth in Section 10.07(e).



     “Regulated Subsidiary” means any Restricted Subsidiary that is subject to regulation as an
insurance company by any Governmental Authority and for which the incurrence of Indebtedness
(including Guarantees) or the granting of Liens with respect to its assets would be prohibited or
restricted or would result in a negative impact on any minimum capital or similar requirement
applicable to it.



     “Regulatory Supervising Organization” means any Governmental Authority or regulatory
organization of which a Regulated Subsidiary is a member or to whose rules it is subject.



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



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



     “Required Lenders” means, as of any date of determination, Lenders having more than 50% of the
sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk



28









 




participation
and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by
such Lender for purposes of this definition), (b) aggregate unused Term Commitments, if any, and
(c) aggregate unused Revolving Credit Commitments, if any; provided that the unused Term
Commitment, unused Revolving Credit Commitment of, and the portion of the Total Outstandings 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, any vice president, chief
financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party (or
any other person duly authorized by a Loan Party to act with respect to the Loan Documents on
behalf of such Loan Party) and, as to any document delivered on the Closing Date, secretary or
assistant secretary. 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 Companies” means the Borrower and its Restricted Subsidiaries, and “Restricted
Company” means any of the foregoing.



     “Restricted Payment” means any dividend or other distribution (whether in cash, securities or
other property) with respect to any Equity Interest of any Restricted Company, or any payment
(whether in cash, securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such Equity Interest, or on account of any return of capital to the Borrower’s
stockholders, partners or members (or the equivalent Persons thereof). The amount expended in any
Restricted Payment, if other than in cash, will be deemed to be the fair market value of the
relevant non-cash
assets, as determined in good faith by the board of directors of the Borrower and evidenced by
a board resolution.



     “Restricted Prepayment” has the meaning specified in Section 7.10.



     “Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted
Subsidiary.



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



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



29









 




$140,000,000 on the Closing Date, as such amount may be adjusted from time to time in accordance
with the terms of this Agreement.




     “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit
Commitments at such time.



     “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment
at such time.



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



     “Revolving Credit Maturity Date” means the fifth anniversary of the Closing Date.



     “Revolving Credit Note” means a promissory note of the Borrower payable to any Revolving Credit
Lender or its registered assigns, in substantially the form of Exhibit C-3 hereto, evidencing the
aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving
Credit Loans made by such Revolving Credit Lender.



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



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



     “Secured Cash Management Obligations” means the obligations of any Loan Party with respect to
any overdraft and related liabilities arising from treasury, depository and cash management
services or any automated clearing house transfer of funds provided by a Person who was a Lender or
an Affiliate thereof at the time the agreements giving rise to such obligations were created, or
who subsequently has become a Lender or an Affiliate thereof.



     “Secured Hedge Agreement” means any Swap Contract permitted under Article 7 that is entered into
by and between the Borrower or any of its Subsidiaries and any Person who was a Lender or an
Affiliate thereof at the time the relevant Swap Contract was executed, or who subsequently has
become a Lender or an Affiliate thereof.



     “Secured Hedge Bank” means any Person that is a Lender or an Affiliate of a Lender, in its
capacity as a party to a Secured Hedge Agreement.



     “Secured Hedging Obligations” means the obligations of any Loan Party under any Secured Hedge
Agreement.



     “Secured Obligations” has the meaning specified in the Security Agreement.



     “Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the
Lenders, the Secured Hedge Banks, the holders of Secured Cash Management Obligations, the
Supplemental Administrative Agent and each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to Section 9.02.



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     “Securitization Assets” means any accounts receivable, royalty or revenue streams, other
financial assets, proceeds and books, records and other related assets incidental to the foregoing
subject to a Securitization Financing.



     “Securitization Financing” has the meaning referred to in Section 7.03(r).



     “Securitization Vehicle” means one or more special purpose vehicles that are, directly or
indirectly, wholly-owned Subsidiaries of the Borrower and are Persons organized for the limited
purpose of entering into a Securitization Financing by purchasing, or receiving by way of capital
contributions, sale or other transfer, assets from the Borrower and its Subsidiaries and obtaining
financing for such assets from third parties, and whose structure is designed to insulate such
vehicle from the credit risk of the Borrower.



     “Security Agreement” means, collectively, the Security Agreement executed by the Loan Parties,
substantially in the form of Exhibit G, together with each other security agreement supplement
executed and delivered pursuant to Section 6.12.



     “Security Agreement Supplement” has the meaning specified in the Security Agreement.



     “Senior Notes” means the Borrower’s senior unsecured notes due 2016 issued on the Closing Date
in the aggregate principal amount of $375,000,000, and includes any “Exchange Notes” (as defined in
the Senior Notes Documents) registered with the SEC and exchanged for unregistered Senior Notes.



     “Senior Notes Documents” means the Senior Notes Indenture and all other instruments, agreements
and other documents evidencing or governing the Senior Notes or providing for any Guarantee or
other right in respect thereof.



     “Senior Notes Indenture” means the Indenture dated as of July 2, 2008 among the Borrower, each
of the guarantors named therein and U.S. Bank Corporate Trust Services, as trustee, in respect of
the Senior Notes.



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



     “SPC” has the meaning specified in Section 10.07(i).



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     “Specified
Debt” has the meaning specified in the last paragraph of Section 7.03.



     “Specified Debt Test” has the meaning specified in the proviso contained in the last paragraph
of Section 7.03.



     “Specified Non-Recourse Indebtedness” has the meaning set forth in Section 7.03(f).



     “Specified Rate Loan” means a loan that bears interest at a rate per annum equal to the Federal
Funds Rate plus the Applicable Margin specified for Eurodollar Rate Revolving Credit Loans.



     “Spin-Off” means the distribution by FNIS of all of the issued and outstanding shares of the
Borrower’s common stock on a pro rata basis to holders of the FNIS common stock in accordance with
the Distribution Agreement.



     “Specified Responsible Officer” means the chief executive officer, president, chief operating
officer, chief financial officer, treasurer, comptroller or general counsel of the Borrower.



     “Specified Transaction” means, any Investment, incurrence of Indebtedness, Restricted Payment or
Restricted Prepayment in respect of which compliance with the financial covenants set forth in
Section 7.09 is by the terms of this Agreement required to be calculated on a Pro Forma Basis.



     “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 securities or other interests
having ordinary voting power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a contingency) are at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified,
all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Borrower.



     “Subsidiary Guarantor” has the meaning specified in Section 6.12(a). Each Subsidiary Guarantor
as of the Closing Date is listed on Schedule 1.01B.



     “Subsidiary Guaranty” means, collectively, the guaranty in respect of the Guaranteed Obligations
made by those Subsidiaries of the Borrower that are Subsidiary Guarantors in favor of the
Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit F,
together with any other guaranty and guaranty supplement delivered pursuant to Section 6.12.



     “Supplemental Administrative Agent” has the meaning specified in Section 9.13 and “Supplemental
Administrative Agents” shall have the corresponding meaning.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward contracts,
futures 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



32









 




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, repurchase agreements, reverse repurchase
agreements, sell buy backs and buy sell back agreements, and securities lending and borrowing
agreements 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 or related schedules, including any such obligations or liabilities arising
therefrom.




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



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



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



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



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



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



     “Swing Line Sublimit” means an amount equal to $20,000,000. The Swing Line Sublimit is part
of, and not in addition to, the Revolving Credit Facility.



     “Syndication Agents” means Bank of America and Wachovia Bank, as syndication agents under this
Agreement.



     “Taxes” has the meaning specified in Section 3.01(a).



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



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     “Term A Commitment” means, as to each Term A Lender, its obligation to make a Term A Loan to the
Borrower pursuant to Section 2.01(a) in an aggregate amount not to exceed the amount set forth
opposite such Term A Lender’s name on Schedule 2.01 under the caption “Term A Commitment” or in the
Assignment and Assumption pursuant to which such Term A Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The
initial aggregate amount of the Term A Commitments is $700,000,000.



     “Term A Lender” means, at any time, any Lender that has a Term A Commitment or Term A Loans at
such time.



     “Term A Loan” means a Loan made pursuant to Section 2.01(a).



     “Term A Loan Maturity Date” means the fifth anniversary of the Closing Date.



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



     “Term B Commitment” means, as to each Term B Lender, its obligation to make a Term B Loan to the
Borrower pursuant to Section 2.01(b) in an aggregate amount not to exceed the amount set forth
opposite such Term B Lender’s name on Schedule 2.01 under
the caption “Term B Commitment” or in the
Assignment and Assumption pursuant to which such Term B Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The
initial aggregate amount of the Term B Commitments is $510,000,000.



     “Term B Lender” means, at any time, any Lender that has a Term B Commitment or Term B Loans at
such time.



     “Term B Loan” means a Loan made pursuant to Section 2.01(b).



     “Term B Loan Maturity Date” means the sixth anniversary of the Closing Date.



     “Term Commitment” means a Term A Commitment or a Term B Commitment and “Term Commitments” means
the Term A Commitments and the Term B Commitments.



     “Term Lender” means, at any time, any Lender that is a Term A Lender or a Term B Lender.



     “Term Loan” means a Term A Loan or a Term B Loan, and “Term Loans” means the Term A Loans and the
Term B Loans.



     “Term Note” means a promissory note of the Borrower payable to any Term Lender or its registered
assigns, in substantially the form of Exhibit C-1 or Exhibit C-2
hereto, evidencing the aggregate indebtedness of the Borrower to such Term Lender resulting
from the Term Loans made by such Term Lender.



34









 





     “Threshold Amount” means $70,000,000.



     “Total Assets” means, at any time with respect to any Person, the total assets appearing on the
most recently prepared consolidated balance sheet of such Person as of the end of the most recent
fiscal quarter of such Person for which such balance sheet is available, prepared in accordance
with GAAP.



     “Total Consolidated Assets” means, at any time, the total assets appearing on the most recently
prepared consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end
of the most recent fiscal quarter of the Borrower and its Consolidated Subsidiaries for which such
balance sheet is available, prepared in accordance with GAAP.



     “Total Indebtedness” means, without duplication, (i) the aggregate Outstanding Amount of all
Loans, the aggregate undrawn amount of all outstanding trade Letters of Credit and all Unreimbursed
Amounts and (ii) all other Indebtedness of the Consolidated Companies of the type referred to in
clauses (a), (b) (but solely in respect of letters of credit and bankers’ acceptances, and solely to
the extent drawn and not yet reimbursed), (d), (e), (f) and (h) of the definition thereof and all
Guarantees of the Borrower and its Subsidiaries in respect of such Indebtedness of any other
Person, in each case other than Specified Non-Recourse Indebtedness.



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



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



     “Transaction” means, collectively, (a) the Contribution, (b) the Spin-Off, (c) the Exchange, (d)
the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to
be a party, the borrowing or issuance of Loans, the use of any proceeds thereof and the issuance of
Letters of Credit hereunder, (e) the execution, delivery and performance of each Loan Party of the
Senior Notes Documents to which it is to be a party and the issuance of the Senior Notes and (f)
the payment of the fees and expenses incurred in connection with any of the foregoing.



     “Transaction Documents” means, collectively, (a) the Distribution Agreement, any other material
contribution and separation agreements and any other material documents relating to the
Contribution or the Spin-Off (including as to the allocation of any material liabilities), (b) the
Exchange Agreement, (c) the Senior Notes Documents and (d) all other material agreements,
instruments and documents relating to the Transaction (other than the Loan Documents).



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



     “U.S. Lender” has the meaning set forth in Section 10.16(b).



     “Uniform Commercial Code” means the Uniform Commercial Code as the same may from time to time be
in effect in the State of New York or the Uniform Commercial Code (or



35









 




similar code or statute) of another jurisdiction, to the extent it may be required to apply to any
item or items of Collateral.




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



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



     “Unrestricted Subsidiary” means (a) each Subsidiary of the Borrower listed on Schedule 1.01B and
(b) any Subsidiary of the Borrower designated by the board of directors of the Borrower as an
Unrestricted Subsidiary pursuant to Section 6.14 subsequent to the Closing Date (and continuing
until such time that such designation may be thereafter revoked by the Borrower).



     “Wachovia Bank” means Wachovia Bank, National Association and its successors.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment; by (b) the then outstanding principal amount of such Indebtedness.



     “Working Capital” means, at any date, the excess of current assets of the Borrower and its
Subsidiaries on such date (excluding cash and Cash Equivalents)
over current liabilities of the
Borrower and its Subsidiaries on such date (excluding current liabilities in respect to
Indebtedness), all determined on a consolidated basis in accordance with GAAP.



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



     (a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



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



     (c) Article, Section, Exhibit and Schedule references are to the Loan Document in which such
reference appears.



     (d) The
term “including” is by way of example and not limitation.



     (e) 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”.



36









 





     (f) 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.



     Section 1.03. Accounting Terms. (a) 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 pursuant to Section 7.09) required to be submitted pursuant
to this Agreement shall be prepared in conformity with, GAAP, as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the Borrower’s independent public
accountants) with the most recent audited consolidated financial statements of the Borrower and its
Subsidiaries delivered to the Lenders pursuant to Section 6.01 or, prior to such delivery, the
Historical Financial Statements for the fiscal year ended December 31, 2007.



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



     (c) Notwithstanding anything to the contrary contained herein, financial ratios and other
financial calculations pursuant to this Agreement shall, following any Specified Transaction, be
calculated on a Pro Forma Basis until the completion of four full fiscal quarters following such
Specified Transaction.



     Section 1.04. Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement (or required to be satisfied in order for a specific
action to be permitted under 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).



     Section 1.05. References to Agreements and Laws. Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are not prohibited by any
Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.



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



37









 





     Section 1.07. Timing of Payment or Performance. When the payment of any obligation or the
performance of any covenant, duty or obligation is stated to be due or performance required on a
day which is not a Business Day, the date of such payment or performance shall extend to the
immediately succeeding Business Day and such extension of time shall be reflected in computing
interest or fees, as the case may be; provided that, with respect to any payment of interest on or
principal of Eurodollar Rate Loans, if such extension would cause any such payment to be made in
the next succeeding calendar month, such payment shall be made on the immediately preceding
Business Day.



     Section 1.08. Foreign Currency Denominated Debt. For purposes of determining compliance with
any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was
incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit
Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate
in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed
not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not
exceed the principal amount of such Indebtedness being refinanced. Notwithstanding anything to the
contrary in this Agreement, the maximum amount of Indebtedness that the Restricted Companies may
incur in compliance with this Agreement shall not be deemed to be exceeded solely as a result of
fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred
to refinance other Indebtedness, if incurred in a different currency from the Indebtedness
being refinanced, shall be calculated based on the currency exchange rate applicable to the
currencies in which such refinancing Indebtedness is denominated that is in effect on the date of
such refinancing.



ARTICLE 2

The Commitments and Credit Extensions




     Section 2.01. The Committed Loans. (a) The Term A Borrowings. Subject to the terms and
conditions set forth in the Distribution Agreement, the Initial Term Lender agrees to make, on the
date of the Contribution, a single loan in Dollars to the Borrower in an amount equal to 100% of
its Term A Commitment; provided that the Initial Term Lender’s obligation to make a Term A Loan to
the Borrower on such date shall be satisfied by its transfer of the Acquired Business to the
Borrower as contemplated by the Distribution Agreement. After the occurrence of the Contribution
and prior to but substantially concurrently with the occurrence of
the Spin-Off, the Existing
Tranche B Lenders shall participate in the exchange by the Initial Term Lender of its Term A Loan
for a like amount of the Existing Tranche B Loans held by the Existing Tranche B Lenders subject to
the terms and conditions set forth in this Agreement and in the Exchange Agreement. Amounts
borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term A Loans may
be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



38









 





     (b) The Term B Borrowings. Subject to the terms and conditions set forth in the Distribution
Agreement, the Initial Term Lender agrees to make, on the date of the Contribution, a single loan
in Dollars to the Borrower in an amount equal to 100% of its Term B Commitment; provided that the
Initial Term Lender’s obligation to make a Term B Loan to the Borrower on such date shall be
satisfied by its transfer of the Acquired Business to the Borrower as contemplated by the
Distribution Agreement. After the occurrence of the Contribution and prior to but substantially
concurrently with the occurrence of the Spin-Off, the Existing Tranche B Lenders shall participate
in the exchange by the Initial Term Lender of its Term B Loan for a like amount of the Existing
Tranche B Loans held by the Existing Tranche B Lenders subject to the terms and conditions set
forth in this Agreement and in the Exchange Agreement. Amounts borrowed under this Section 2.01(b)
and repaid or prepaid may not be reborrowed. Term B Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.



     (c) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein,
each Revolving Credit Lender severally agrees to make loans (each
such loan, a “Revolving Credit Loan ”) to the Borrower from time to time, on any Business Day until the Revolving Credit Maturity
Date, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s
Revolving Credit Commitment; provided that after giving effect to any Revolving Credit Borrowing,
(x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Credit Commitment and (y) the Total Revolving Outstandings shall not
exceed the Aggregate Revolving Credit Commitments. Within the limits of each Lender’s
Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.01(c), prepay under Section 2.05 and reborrow under this Section
2.01(c). Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.



     Section 2.02. Borrowings, Conversions and Continuations of Committed Loans. (a) Each Term A
Borrowing, each Term B Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or
Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative Agent not later than
(i) 1:00 p.m. three Business Days prior to the requested date of any Borrowing of Eurodollar Rate
Loans, continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to Eurodollar
Rate Loans, and (ii) 12:00 p.m. on the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c)(i) and Section
2.04(c)(i), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a Term A Borrowing, a
Term B Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans or Revolving




39











 




Credit 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 Committed Loans to be borrowed, converted or
continued, (iii) the Type of Committed Loans to be borrowed or which existing Term Loans or
Revolving Credit Loans are to be converted and (iv) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan
Notice or fails to give a timely notice requesting a conversion or continuation, then the
applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, a Eurodollar
Rate Loan with an Interest Period of one month (subject to the definition of Interest Period). Any
such automatic conversion to Eurodollar Rate Loans with an Interest Period of one month shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of
Eurodollar Rate Loans in any such Committed 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 Committed Loan Notice, the Administrative Agent shall promptly
notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Class of
Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to
Eurodollar Rate Loans with an Interest Period of one month or continuation described in Section
2.02(a). In the case of each Committed Borrowing, each Appropriate Lender shall make the amount of
its Committed 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 Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the Borrower on the
books of JPMCB with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the Borrower; provided that
if, on the date the Committed Loan Notice with respect to such Borrowing is given by the Borrower,
there are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall
be applied, first, to the payment in full of any such L/C Borrowings, second, to the payment in
full of any such Swing Line Loans, and third, to the 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 an Interest Period for such Eurodollar Rate Loan unless the Borrower pays
the amount due, if any, under Section 3.07 in connection therewith. During the existence of an
Event of Default, the Administrative Agent or the Required Lenders may require that no Loans may be
converted to or continued as Eurodollar Rate Loans.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders
of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate. The determination of the Eurodollar Rate by the Administrative
Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in
JPMCB’s



40









 




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




     (e) After giving effect to all Term A Borrowings, all Term B Borrowings, all Revolving Credit
Borrowings, all conversions of Term Loans or Revolving Credit Loans from one Type to the other, and
all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more
than 20 Interest Periods in effect with respect to Committed Loans.



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



     Section 2.03. Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject to the terms
and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the
other Revolving Credit 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 for the account of the Borrower and to amend or renew Letters of Credit
previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the
Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters
of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender
shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit
Extension or after giving effect thereto, (x) the Total Revolving Outstandings would exceed the
Aggregate Revolving Credit Commitments, (y) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
would exceed such Lender’s Revolving Credit Commitment or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject
to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.



          (ii) The L/C Issuer shall be under no 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



41









 






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, in each case,
the L/C Issuer in good faith deems material to it;




     (B) 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
renewal, unless the Revolving Credit Lenders (other than any Revolving Credit
Lender that is a Defaulting Lender) have approved such expiry date;




     (C) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Revolving Credit Lenders (other
than any Revolving Credit Lender that is a Defaulting Lender) have approved such
expiry date; or




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




     (iii) 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.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of
Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request
of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form
of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 1:00 p.m. at least two Business Days prior to the proposed
issuance date or date of amendment, as the case may be, or such later date and time as the L/C
Issuer may agree in a particular instance in its sole discretion. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail
reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the
L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of
amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and
(4) such other matters as the L/C Issuer may reasonably request. In the event that any Letter of
Credit Application includes representations and warranties, covenants and/or events of default that
do not contain the materiality qualifiers, exceptions or thresholds that are applicable to the
analogous provisions of this Agreement or other Loan Documents, or are otherwise more restrictive,
the relevant qualifiers, exceptions and thresholds contained herein shall be incorporated therein
or, to the extent more restrictive, shall be deemed



42









 




for purposes of such Letter of Credit Application to be the same as the analogous provisions
herein.





     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt
by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof (such confirmation to be
promptly provided by the Administrative Agent), then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower or enter into the applicable amendment, as the case may be.
Immediately upon the issuance of each Letter of Credit, each Revolving Credit 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 Pro Rata Share times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that
any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any such
renewal 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 “Nonrenewal Notice Date”) in each such twelve month period to be agreed upon at the
time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the L/C Issuer for any
such renewal. Once an Auto-Renewal 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 renewal of
such Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided that the L/C Issuer shall not permit any such renewal if (A) the
L/C Issuer has determined that it would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of
Section 2.03(a)(ii) 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 Nonrenewal Notice
Date from the Administrative Agent, any Revolving Credit Lender or the Borrower that one or
more of the applicable conditions specified in Section 4.02 is not then satisfied.




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



     (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 3:00



43









 




p.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor Date”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing; provided that if notice of such drawing is not provided
to the Borrower prior to 1:00 p.m. on the Honor Date, then the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the
next succeeding Business Day and such extension of time shall be reflected in computing fees in
respect of any such Letter of Credit. If the Borrower fails to so reimburse the L/C Issuer by such
time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor
Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Revolving Credit Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to
have requested a Revolving Credit 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(a) for the principal amount of Base Rate Loans but subject to the amount of the
unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.





     (ii) Each Revolving Credit Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available
to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each
Revolving Credit Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each Revolving Credit
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 Revolving Credit Lender funds its Revolving Credit 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 Pro Rata Share of such amount shall
be solely for the account of the L/C Issuer.




     (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of



44









 






Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the L/C Issuer, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default; or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided that each Revolving Credit Lender’s obligation to make
Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set
forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice ). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving Credit 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 Federal Funds Rate and a rate determined by the L/C Issuer in accordance
with banking industry rules on interbank compensation. If such Lender pays such amount
(with interest as aforesaid), the amount so paid shall constitute such Lender’s Committed
Loan included in the relevant Committed 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
Revolving Credit Lender (through the Administrative Agent) with respect to any amounts
owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations. (i) If, at any time after the L/C Issuer has made a payment
under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s L/C
Advance in respect of such payment in accordance with Section 2.03(c), the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof and in the same funds as those received by the
Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any settlement entered into
by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share 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.



45









 





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




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




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower 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 exchange, release or nonperfection of any Collateral, or any release or
amendment or waiver of or consent to departure from the Subsidiary Guaranty or any other
guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of
Credit; or




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


provided that the foregoing shall not excuse the L/C Issuer from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in respect of which are
waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are
caused by the L/C Issuer’s gross negligence or willful misconduct. The Borrower shall promptly
examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in
the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will promptly notify the L/C Issuer. The Borrower shall be conclusively deemed to have
waived any such claim against the L/C Issuer and its correspondents unless such notice is given as
aforesaid.





46









 








     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a
Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document. None of the L/C Issuer, any Agent-Related Person
nor any of the respective correspondents, participants or assignees 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 Letter of Credit Application. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the Borrower from
pursuing such rights and remedies as it may have against the beneficiary or transferee at Law or
under this Agreement or any other agreement. None of the L/C Issuer, any Agent-Related Person, nor
any of the respective correspondents, participants or assignees of the L/C Issuer, shall be liable
or responsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e);
provided that anything in such clauses to the contrary notwithstanding, the Borrower may have a
claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by
the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross
negligence or the L/C Issuer’s willful or grossly negligent failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or information to the
contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing and the conditions set forth in Section 4.02 to a Revolving Credit
Borrowing cannot then be met, or (ii) if, as of the Letter of Credit Expiration Date, any Letter of
Credit may for any reason remain outstanding and partially or wholly undrawn, the Borrower shall,
within three Business Days, Cash Collateralize the then Outstanding Amount of all L/C Obligations
(in an amount equal to such Outstanding Amount determined as of the date of such L/C Borrowing or
the Letter of Credit Expiration Date, as the case may be) or, in the case of clause (ii), provide a
back-to-back letter of credit in a face amount at least equal to the then undrawn amount of such
Letter of Credit from an issuer and in form and substance reasonably satisfactory to the L/C
Issuer. For purposes hereof, “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 (“Cash Collateral” ) 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



47









 




Lenders). Derivatives of such term have corresponding meanings. Cash Collateral shall be maintained
in a Cash Collateral Account. If at any time the Administrative Agent
determines that any funds held as Cash Collateral are subject to any right or claim of any Person
other than rights or claims of the Administrative Agent and claims of the Collateral Agent arising
by operation of law or that the total amount of such funds is less than the aggregate Outstanding
Amount of all L/C Obligations, the Borrower will, forthwith upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the Cash
Collateral Account, an amount equal to the excess of (A) such aggregate Outstanding Amount over (B)
the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent
determines to be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the
extent permitted under applicable Law, to reimburse the L/C Issuer. To the extent the amount of any
Cash Collateral exceeds the aggregate Outstanding Amount of all L/C Obligations and so long as no
Event of Default has occurred and is continuing, the excess shall be refunded to the Borrower.




     (h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C Issuer and
the Borrower when a Letter of Credit is issued, (i) the rules of the “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) shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account
of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit fee for
each Letter of Credit issued for the account of the Borrower equal to the Applicable Margin times
the daily maximum amount then available to be drawn under such Letter of Credit (whether or not
such maximum amount is then in effect under such Letter of Credit if such maximum amount increases
periodically pursuant to the terms of such Letter of Credit). Such letter of credit fees shall be
computed on a quarterly basis in arrears. Such letter of credit fees shall be 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 Margin during
any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by
the Applicable Margin separately for each period during such quarter that such Applicable Margin
was in effect.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower
shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter
of Credit issued for the account of the Borrower equal to 0.125% per annum (or, in the case of any
L/C Issuer, any lesser percentage that may be agreed by the Borrower and such L/C Issuer) of the
daily maximum amount then available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit if such maximum amount increases
periodically pursuant to the terms of such Letter of Credit). Such fronting fees shall be
computed on a quarterly basis in arrears. Such fronting fees shall be due and payable on the first
Business Day after the end of each March, June, September and



48









 




December, commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. In addition, the Borrower shall
pay directly to the L/C Issuer for its own account 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 within five Business Days of demand and are nonrefundable.




     (k) Conflict with Letter of Credit Application. In the event of any conflict between the
terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



     Section 2.04. Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees to make loans (each such loan, a “Swing Line Loan”) to
the Borrower from time to time on any Business Day until the Revolving Credit Maturity Date in an
aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided that after
giving effect to any Swing Line Loan, (x) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Credit Commitments and (y) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Revolving Credit Commitment; provided further that the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.04, prepay under Section 2.05 and reborrow under this Section 2.04.
Each Swing Line Loan shall be a Specified Rate Loan. Immediately upon the making of a Swing Line
Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender’s Pro Rata Share times the amount of such Swing Line
Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 3:00 p.m. on the requested borrowing date or such later time on the requested
borrowing date as may be approved by the Swing Line Lender in its sole discretion, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line



49









 




Lender has received notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Revolving Credit Lender) prior to 3:30 p.m. on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the provisos to the first sentence of Section 2.04(a), or (B) that one
or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject
to the terms and conditions hereof, the Swing Line Lender will, not later than 4:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Borrower.




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




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




     (iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the
time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the applicable Federal Funds Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with
the foregoing. If such Lender pays such amount (with interest and fees



50









 






as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in
the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan,
as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.




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



     (d) Repayment of Participations. (i) At any time after any Revolving Credit Lender has
purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such
Lender its Pro Rata Share of such payment in the same funds as those received by the Swing Line
Lender.




     (ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by the Swing
Line Lender under any of the circumstances described in Section 10.06 (including pursuant
to any settlement entered into by the Swing Line Lender in its discretion), each Revolving
Credit Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned, at a rate per annum equal to the applicable Federal Funds Rate.
The Administrative Agent will make such demand upon the request of the Swing Line Lender.



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



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



     Section 2.05. Prepayments. (a) Optional. (i) Subject to Section 2.05(a)(iv), the Borrower may,
upon notice to the Administrative Agent, at any time or from time to time, voluntarily prepay the
Term Loans and Revolving Credit Loans in whole or in part without premium or



51









 




penalty; provided that (A) such notice must be received by the Administrative Agent not later than
11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2)
on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be
in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and
(C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and
the Class(es) and Type(s) of Committed Loans to be prepaid. The Administrative Agent will promptly
notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be due and payable on
the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant to Section 3.07.
Each prepayment of the Loans pursuant to this Section 2.05(a) shall be applied among the Facilities
in such amounts as the Borrower may direct in its sole discretion, provided that any such
prepayment of any Class of Term Loans shall be applied against the then remaining scheduled
amortization payments under such Class of Term Loans in order of their maturities. Each prepayment
in respect of a particular Facility shall be paid to the Appropriate Lenders in accordance with
their respective Pro Rata Shares.





     (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line
Loans in whole or in part without premium or penalty; provided that (A) such notice must be
received by the Swing Line Lender and the Administrative Agent not later than 3:00 p.m. on
the date of the prepayment and (B) any such prepayment shall be in a minimum principal
amount of the lesser of $100,000 and the total principal amount of the Swing Line Loans
then outstanding. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.




     (iii) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower may rescind any notice of prepayment under Section 2.05(a)(i) or Section
2.05(a)(ii) if such prepayment would have resulted from a refinancing of all of the
Facilities, which refinancing shall not be consummated or shall otherwise be delayed.




     (iv) Notwithstanding anything herein to the contrary, all optional prepayments of the
Term B Loans effected on or prior to the first anniversary of the Closing Date with the
proceeds of a substantially concurrent issuance or incurrence of new term loans under this
Agreement, as amended, amended and restated, supplemented, waived or otherwise modified
from time to time (excluding a refinancing of all the facilities outstanding under this
Agreement in connection with another transaction not permitted by this Agreement (as
determined prior to giving effect to any amendment or waiver of this Agreement being
adopted in connection with such transaction)) shall be accompanied by a prepayment fee
equal to 1% of the aggregate principal amount of such prepayments if the Applicable Margin
(or similar interest rate spread) applicable to such new term loans is or,



52









 




upon the satisfaction of certain conditions, could be less than the Applicable Margin
applicable to the Term B Loans on the Closing Date.




(b) Mandatory.




     (i) (A) If (1) any Restricted Company Disposes of any property or assets pursuant to Section
7.05(f)(i) (solely to the extent the fair market value of all such Dispositions of Collateral
pursuant to Section 7.05(f)(i) from and after the Closing Date exceed $25,000,000), Section
7.05(l)(ii), Section 7.05(q) or Section 7.05(t), or (2) any Casualty Event occurs, which in the
aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in
excess of $1,000,000 in any fiscal year, the Borrower shall cause to be prepaid on or prior to the
date which is ten Business Days after the date of the realization or receipt of such Net Cash
Proceeds an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash
Proceeds
received; provided that no such prepayment shall be required pursuant to this Section
2.05(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the
Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds in
accordance with Section 2.05(b)(i)(B) (which election may only be made if no Event of Default has
occurred and is then continuing);




     (B) With respect to any Net Cash Proceeds realized or received with respect to any
Disposition or any Casualty Event required to be applied in accordance with Section
2.05(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall
have occurred and be continuing, the Borrower may reinvest all or any portion of such Net
Cash Proceeds in the acquisition, improvement or maintenance of assets useful in the
operations of the Restricted Companies (1) in the case of any Net Cash Proceeds received
with respect to any Disposition, within (x) 12 months following receipt of such Net Cash
Proceeds or (y) if the Borrower enters into a contract to reinvest such Net Cash Proceeds
within such 12 month period following receipt thereof, 18 months following receipt of such
Net Cash Proceeds and (2) in the case of any Net Cash Proceeds received with respect to
any Casualty Event, within (x) 24 months following receipt of such Net Cash Proceeds or
(y) if the Borrower enters into a contract to reinvest such Net Cash Proceeds within such
24 month period following receipt thereof, 30 months following receipt of such Net Cash
Proceeds; provided that if any Net Cash Proceeds are no longer intended to be so
reinvested at any time after delivery of a notice of reinvestment election or are not so
reinvested during (I) in the case of any such Disposition, such 12 month period or 18
month period, as applicable and (II) in the case of any such Casualty Event, such 24 month
period or 30 month period, as applicable, an amount equal to any such Net Cash Proceeds
shall be immediately applied to the prepayment of the Term Loans as set forth in this
Section 2.05.



     (ii) If any Restricted Company incurs or issues (A) any Indebtedness not expressly permitted
to be incurred or issued pursuant to Section 7.03 or (B) any Indebtedness incurred pursuant to
Section 7.03(r), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans
in an amount equal to 100% of all Net



53









 






Cash Proceeds received therefrom on or prior to the date which is five Business Days after
the receipt of such Net Cash Proceeds.




     (iii) Within ten Business Days after financial statements have been delivered pursuant
to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to
Section 6.02(b), the Borrower shall cause to be prepaid an aggregate principal amount of
Term Loans in an amount equal to (A) 50% of Excess Cash Flow, if any, for the fiscal year
covered by such financial statements (commencing with the first full fiscal year ended
after the Closing Date) minus (B) the sum of (1) the amount of any prepayments of the Term
Loans made pursuant to Section 2.05(a) during the fiscal year covered by such financial
statements and (2) solely to the extent the Revolving Credit Commitments are
reduced pursuant to Section 2.06(a) in connection therewith (and solely to the extent
of the amount of such reduction), the amount of any prepayments of the Revolving Credit
Loans made pursuant to Section 2.05(a) during the fiscal year covered by such financial
statements; provided that such percentage shall be reduced to (x) 25% if the Leverage Ratio
as of the last day of the immediately preceding four fiscal quarters was less than 2.25:1
or (y) 0% if (I) the Leverage Ratio as of the last day of the immediately preceding four
fiscal quarters was less than 2.00:1 or (II) the Excess Cash Flow for such year was less
than $10,000,000.




     (iv) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied
ratably to each of the Term A Loans and the Term B Loans and in direct order of maturities
to the principal repayment installments of the Term Loans that are due after the date of
such prepayment. Each such prepayment shall be paid to the Term Lenders in accordance with
their respective Pro Rata Shares.




     (v) The Borrower shall notify the Administrative Agent in writing of any mandatory
prepayment of Term Loans required to be made pursuant to clauses (i), (ii) and (iii) of
this Section 2.05(b) at least (A) in the case of the prepayment of Term Loans which are
Base Rate Loans, three Business Days and (B) in the case of prepayments of Term Loans which
are Eurodollar Rate Loans, five Business Days, in each case prior to the date of such
prepayment. Each such notice shall specify the date of such prepayment and provide a
reasonably detailed calculation of the amount of such prepayment. The Administrative Agent
will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment
notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.



     (c) Funding Losses, Etc. All prepayments under this Section 2.05 shall be made together with,
in the case of any such prepayment of a Eurodollar Rate Loan on a date other than the last day of
an Interest Period therefor, any amounts owing in respect of such Eurodollar Rate Loan pursuant to
Section 3.07. Notwithstanding any of the other provisions of Section 2.05(b), so long as no Event
of Default shall have occurred and be continuing, if any prepayment of Eurodollar Rate Loans is
required to be made under Section 2.05(b), other than on the last day of the Interest Period
therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment
otherwise required to be made thereunder into a Cash Collateral Account until the last day of such
Interest Period, at which time the Administrative Agent shall be authorized (without any further
action by or notice to or from the Borrower or any other Loan Party) to




54











 




apply such amount to the prepayment of such Loans in accordance with Section 2.05(b). Upon the
occurrence and during the continuance of any Event of Default, the Administrative Agent shall also
be authorized (without any further action by or notice to or from the Borrower or any other Loan
Party) to apply such amount to the prepayment of the outstanding Loans in accordance with Section
2.05(b).




     Section 2.06. Termination or Reduction of Commitments. (a) Optional. The Borrower may, upon
written notice to the Administrative Agent, terminate the Aggregate Revolving Credit Commitments or
from time to time permanently reduce the Revolving Credit Commitments; provided that (i) any such
notice shall be received by the Administrative Agent one Business Day prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of
$500,000 or any whole multiple of $100,000 in excess thereof or equal to the Aggregate Revolving
Credit Commitments at such time and (iii) if, after giving effect to any reduction of the Revolving
Credit Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
the Aggregate Revolving Credit Commitments, such sublimit shall be automatically reduced by the
amount of such excess. Notwithstanding the foregoing, the Borrower may rescind or postpone any
notice of termination of the Aggregate Revolving Credit Commitments if such termination would have
resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or
otherwise shall be delayed.



     (b) Mandatory. The Term Commitment of each Term Lender shall be automatically and permanently
reduced to $0 on the Closing Date upon the making of the Term Loans in accordance with Section
2.01. The Revolving Credit Commitments shall be automatically and permanently reduced to $0 on the
Revolving Credit Maturity Date.



     (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will
promptly notify the Lenders of any termination or reduction of unused portions of the Letter of
Credit Sublimit or the Swing Line Sublimit or the unused Commitments of any Class under this
Section 2.06. Upon any reduction of unused Commitments of any Class, the
Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the
amount by which such Commitments are reduced (other than the termination of the Commitment of any
Lender as provided in Section 3.09). All commitment fees accrued until the effective date of any
termination of the Revolving Credit Commitments shall be paid on the effective date of such
termination.



     Section 2.07. Repayment of Loans. (a) Term A Loans. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term A Lenders the aggregate principal amount
of all Term A Loans outstanding in quarterly installments as follows (which installments shall be
reduced as a result of the application of prepayments in accordance with the order of priority set
forth in Section 2.05(b)(iv)), each such payment to be made on or prior to the date specified
below:



	 	 	 	 	 
	 	 	Aggregate Term A Loan Principal
	Payment Date	 	Amortization Payment
	December 31, 2008
	 	$	35,000,000	 
	March 31, 2009
	 	$	35,000,000	 
	June 30, 2009
	 	$	35,000,000	 






55









 






	 	 	 	 	 
	 	 	Aggregate Term A Loan Principal
	Payment Date	 	Amortization Payment
	September 30, 2009
	 	$	35,000,000	 
	December 31, 2009
	 	$	35,000,000	 
	March 31, 2010
	 	$	35,000,000	 
	June 30, 2010
	 	$	35,000,000	 
	September 30, 2010
	 	$	35,000,000	 
	December 31, 2010
	 	$	35,000,000	 
	March 31, 2011
	 	$	35,000,000	 
	June 30, 2011
	 	$	35,000,000	 
	September 30, 2011
	 	$	35,000,000	 
	December 31, 2011
	 	$	35,000,000	 
	March 31, 2012
	 	$	35,000,000	 
	June 30, 2012
	 	$	35,000,000	 
	September 30, 2012
	 	$	35,000,000	 
	December 31, 2012
	 	$	35,000,000	 
	March 31, 2013
	 	$	35,000,000	 
	Term A Loan Maturity Date
	 	All remaining outstanding principal amounts of the Tranche A Loans





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




     (b) Term B Loans. The Borrower shall repay to the Administrative Agent for the ratable account
of the Term B Lenders the aggregate principal amount of all Term B Loans outstanding in quarterly
installments as follows (which installments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.05(b)(iv)), each such
payment to be made on or prior to the date specified below:



	 	 	 	 	 
	 	 	Aggregate Term B Loan Principal
	Payment Date	 	Amortization Payment
	September 30, 2008
	 	$	1,275,000	 
	December 31, 2008
	 	$	1,275,000	 
	March 31, 2009
	 	$	1,275,000	 
	June 30, 2009
	 	$	1,275,000	 
	September 30, 2009
	 	$	1,275,000	 
	December 31, 2009
	 	$	1,275,000	 
	March 31, 2010
	 	$	1,275,000	 
	June 30, 2010
	 	$	1,275,000	 
	September 30, 2010
	 	$	1,275,000	 
	December 31, 2010
	 	$	1,275,000	 
	March 31, 2011
	 	$	1,275,000	 
	June 30, 2011
	 	$	1,275,000	 
	September 30, 2011
	 	$	1,275,000	 






56









 






	 	 	 	 	 
	 	 	Aggregate Term B Loan Principal
	Payment Date	 	Amortization Payment
	December 31, 2011
	 	$	1,275,000	 
	March 31, 2012
	 	$	1,275,000	 
	June 30, 2012
	 	$	1,275,000	 
	September 30, 2012
	 	$	1,275,000	 
	December 31, 2012
	 	$	1,275,000	 
	March 31, 2013
	 	$	1,275,000	 
	June 30, 2013
	 	$	1,275,000	 
	September 30, 2013
	 	$	1,275,000	 
	December 31, 2013
	 	$	1,275,000	 
	March 31, 2014
	 	$	1,275,000	 
	Term B Loan Maturity Date
	 	All remaining outstanding principal amounts of the Tranche B Loans





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




     (c) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for the
ratable account of the applicable Revolving Credit Lenders on the Revolving Credit Maturity Date
the aggregate principal amount of all of its Revolving Credit Loans outstanding on such date.



     (d) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur of
(i) the date that is ten (10) Business Days after such Loan is made and (ii) the Revolving Credit
Maturity Date.



     Section 2.08. Interest. (a) Subject to the provisions of Section 2.08(b), (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 Eurodollar Rate for such Interest
Period plus the Applicable
Margin, (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Margin and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable
borrowing date at a rate per annum equal to the Federal Funds Rate plus the Applicable Margin
for Revolving Credit Loans, or at such other rate as may be agreed between the Borrower and the
Swing Line Lender.



     (b) While any Event of Default set forth in Section 8.01(a) or (f) exists (but, in the case of
any Event of Default set forth in Section 8.01(a), only upon the election of the Administrative
Agent or the Required Lenders), the Borrower shall pay interest on all overdue Obligations
hereunder (regarding which all applicable grace periods set forth in Section 8.01 have expired) at
a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest
on past due interest) shall be due and payable upon demand.



57









 





     (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.



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



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee equal to the
Applicable Margin times the actual daily amount by which the aggregate Revolving Credit Commitments
exceed the sum of (i) the Outstanding Amount of Revolving Credit Loans, (ii) the Outstanding Amount
of L/C Obligations and (iii) the Outstanding Amount of Swing Line Loans. The commitment fee shall
accrue at all times from the date hereof until the date on which the Aggregate Revolving Credit
Commitments have terminated, the Outstanding Amounts on all Committed Loans and Swing Line Loans
have been paid and the Outstanding Amounts on all L/C Obligations have been paid or Cash
Collateralized (the “Termination Date”), including at any time during which one or more of the
conditions in Article 4 is not met, and shall be due and payable quarterly in arrears on the first
Business Day after the end of each March, June, September and December, commencing with October 1,
2008, and on the Termination Date. The commitment fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Margin during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Margin separately for each period during such quarter
that such Applicable Margin was in effect.



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



     Section 2.10. Computation of Interest and Fees. All computations of interest for Base Rate
Loans when the Base Rate is determined by JPMCB’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 2.12(a), bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



     Section 2.11. Evidence of Indebtedness. (a) The Credit Extensions made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more
entries in the Register maintained by the Administrative Agent, acting solely for purposes of
Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each Lender
shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrower and the interest and payments thereon. Any



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failure to so record or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a Note payable to such
Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each
Lender may attach schedules to a 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 Section 2.11(a), each Lender and
the Administrative Agent shall maintain in accordance with its usual practice accounts or records
and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and
sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of
any conflict between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.



     (c) Entries made in good faith by the Administrative Agent in the Register pursuant to Section
2.11(a) and (b), and by each Lender in its account or accounts pursuant to Section 2.11(a) and (b),
shall be prima facie evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of
such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent
manifest error;
provided that the failure of the Administrative Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.



     Section 2.12. Payments Generally. (a) All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed, at
the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00
p.m. (or, in the case of Section 2.05(a)(ii), 3:00 p.m.) on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Pro Rata Share (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.
(or, in the case of Section 2.05(a)(ii), 3:00 p.m.) shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue. If any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment shall be made on
the next following Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.



     (b) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date
any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower
or such Lender, as the case may be, will not make such payment, the Administrative



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Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available a corresponding
amount to the Person entitled thereto. If and to the extent that such payment was not in fact made
to the Administrative Agent in immediately available funds, then:





     (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand repay
to the Administrative Agent the portion of such assumed payment that was made available to such
Lender in immediately available funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative Agent to such Lender to
the date such amount is repaid to the Administrative Agent in immediately available funds at the
applicable Federal Funds Rate from time to time in effect; and




     (ii) if any Lender failed to make such payment with respect to any Committed Borrowing, such
Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately
available funds together with interest thereon for the period from the date such amount was made
available by the Administrative Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable
Federal Funds Rate
from time to time in effect. When such Lender makes payment to the
Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of
any interest which may have accrued and been paid in respect of such late payment) shall
constitute such Lender’s Committed Loan included in the applicable Committed Borrowing. If such
Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such
amount to the Administrative Agent, together with interest thereon for the Compensation Period at
a rate per annum equal to the rate of interest applicable to the applicable Committed Borrowing.
Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment
or to prejudice any rights which the Administrative Agent or the Borrower may have against any
Lender as a result of any default by such Lender hereunder.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this Section 2.12(b) shall be conclusive, absent manifest error.



     (c) 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 2, and such funds are not made
available to the Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article 4 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) The obligations of the Lenders hereunder to make Committed Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of
any Lender to make any Committed Loan or to fund any such participation on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,



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and no Lender shall be responsible for the failure of any other Lender to so make its Committed
Loan or purchase its participation.




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



     (f) Whenever any payment received by the Administrative Agent under this
Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and
payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the
other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and
applied by the Administrative Agent and the Lenders in the order of priority set forth in Section
8.03. If the Administrative Agent receives funds
for application to the Obligations of the Loan Parties under or in respect of the Loan Documents
under circumstances for which the Loan Documents do not specify the manner in which such funds are
to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute
such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (i)
the Outstanding Amount of all Loans outstanding at such time and (ii) the Outstanding Amount of all
L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding
Loans or other Obligations then owing to such Lender.



     Section 2.13. Sharing of Payments. If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the Committed Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through
the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent
of such fact, and (b) purchase from the other Lenders such participations in the Committed Loans
made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line
Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to
share the excess payment in respect of such Committed Loans or such participations, as the case may
be, pro rata with each of them; provided that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the circumstances described in Section
10.06 (including pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount equal to such
paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of the total amount so
recovered, without further interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff, but subject to Section 10.10) with respect to
such participation as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation. The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under this Section 2.13
and will in each case notify the Lenders following any such purchases or repayments. Each Lender
that purchases a participation pursuant to this Section 2.13 shall from and after such purchase
have the right to give all notices,



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requests, demands, directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing Lender were the
original owner of the Obligations purchased.




ARTICLE 3

Taxes, Increased Costs and
Illegality




     Section 3.01. Taxes. (a) Except as provided in this Section 3.01, any and all payments by the
Borrower to or for the account of any Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all liabilities
(including additions to tax, penalties and interest) with respect thereto, excluding, in the case
of each Agent and each Lender, taxes imposed on or measured by its net income or overall gross
income (including branch profits), and franchise (and similar) taxes imposed on it in lieu of net
income taxes, by the jurisdiction (or any political subdivision thereof) under the Laws of which
such Agent or such Lender, as the case may be, is organized, is (or was, during the relevant
period) doing business or maintains a Lending Office, and all liabilities (including additions to
tax, penalties and interest) with respect thereto (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being
hereinafter referred to as “Taxes”).



     (b) If the Borrower shall be required by any Laws to deduct any Taxes from or in respect of
any sum payable under any Loan Document to any Agent or any Lender, (i) except to the extent
provided in Sections 3.01(e) and 3.01(f) below, 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 3.01), each of such Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and (iv) within 30 days after the
date of such payment, the Borrower shall furnish to such Agent or Lender (as the case may be) the
original or a certified copy of a receipt evidencing payment thereof to the extent such a receipt
is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to
the Administrative Agent.



     (c) The Borrower also agrees to pay any and all present or future stamp, court or documentary
taxes and any other excise, property, intangible or mortgage recording taxes or charges or similar
levies which arise from any payment made under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, any Loan Document
(hereinafter referred to as “Other Taxes”).



     (d) The Borrower agrees to indemnify each Agent and each Lender for (i) the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any jurisdiction
on amounts payable under this Section 3.01) paid by such Agent and such Lender, and (ii) any
liability (including additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided such



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Agent or Lender, as the case may be, provides the Borrower with a written statement
thereof setting forth in reasonable detail the basis and calculation of such amounts. Payment under
this Section 3.01(d) shall be made within 30 days after the date such Lender or such Agent makes a
demand therefor.




     (e) The Borrower shall not be required pursuant to this Section 3.01 to pay any additional
amount to, or to indemnify, any Lender or Agent, as the case may be, to the extent that such Lender
or such Agent becomes subject to Taxes subsequent to the Closing Date (or, if later, the date such
Lender or Agent becomes a party to this Agreement) as a result of a change in the place of
organization of such Lender or Agent or a change in the Lending Office of such Lender, except to
the extent that any such change is requested or required in writing by the Borrower (and provided
that nothing in this clause (e) shall be construed as relieving the Borrower from any obligation to
make such payments or indemnification in the event of a change in Lending Office or place of
organization that precedes a change in Law to the extent such Taxes result from a change in Law).



     (f) If a Lender or an Agent is subject to United States withholding tax at a rate in excess of
zero percent at the time such Lender or such Agent, as the case may be, first becomes a party to
this Agreement, withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender or Agent, as the case may be, provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such forms; provided that, if at the date of the
Assignment and Assumption pursuant to which a Lender becomes a party to this Agreement, the Lender
assignor was entitled to payments under clause (a) of this Section 3.01 in respect of United States
withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the future or other amounts
otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to
the Lender assignee on such date.



     (g) If any Lender or Agent shall become aware that it is entitled to receive a refund in
respect of amounts paid by the Borrower pursuant to this Section 3.01, which refund in the good
faith judgment of such Lender or Agent is allocable to such payment, it shall promptly notify
Borrower of the availability of such refund and shall, within 30 days after the receipt of a
request by the Borrower, apply for such refund; provided that in the sole reasonable judgment of
the Lender or Agent, applying for such refund would not be disadvantageous to it.



     (h) If any Lender or Agent receives a refund in respect of any Taxes or Other Taxes as to
which indemnification or additional amounts have been paid to it by the Borrower pursuant to this
Section 3.01, it shall promptly remit such refund (including any interest included in such refund)
to the Borrower (to the extent that it determines that it can do so without prejudice to the
retention of the refund), net of all out-of-pocket expenses of the Lender or Agent, as the case may
be; provided that the Borrower, upon the request of the Lender or Agent, as the case may be, agrees
promptly to return such refund to such party in the event such party is required to repay such
refund to the
relevant taxing authority. Such Lender or Agent, as the case may be, shall, at the Borrower’s
request, provide the Borrower with a copy of any notice of assessment or other evidence of the
requirement to repay such refund received from the relevant taxing authority;



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provided that such Lender or Agent may delete any information therein that such Lender or Agent
deems confidential.




     (i) Nothing in this Section 3.01 shall interfere with the right of a Lender or Agent to
arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent to claim
any tax refund or to disclose any information relating to its tax affairs or any computations in
respect thereof or require any Lender or Agent to do anything that would prejudice its ability to
benefit from any other refunds, credits, reliefs, remissions or repayments to which it may be
entitled.



     Section 3.02. Illegality. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest
rates based upon the Eurodollar Rate, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate
Loans or to convert Base Rate Committed Loans to Eurodollar Rate Loans, shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise
to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate
Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.



     Section 3.03. Inability to Determine Rates. If the Required Lenders determine that for any
reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar
Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, or that deposits are
not being offered to banks in the London interbank market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.



     Section 3.04. Increased Cost and Reduced Return. If any Lender determines that as a result of
the introduction of or any change in or in the interpretation of any Law, in each case after the
date hereof, or such Lender’s compliance therewith, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as the case
may be) issuing or participating in Letters of Credit, or a reduction in the



64









 




amount received or receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this Section 3.04 any such increased costs or reduction in amount resulting from (i)
Taxes or Other Taxes (as to which Section 3.01 and Section 10.16 shall govern), (ii) changes in the
basis of taxation of overall net income or overall gross income (including branch profits), and
franchise (and similar) taxes imposed in lieu of net income taxes, by the United States or any
foreign jurisdiction or any political subdivision of either thereof under the Laws of which such
Lender is organized, is doing business or maintains a Lending Office and (iii) reserve requirements
contemplated by Section 3.06, then from time to time within 30 days following written demand of
such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to
the Administrative Agent given in accordance with Section 3.08), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such increased cost or reduction.




     Section 3.05. Capital Adequacy. If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation thereof, in each case
after the date hereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any Person controlling such
Lender as a consequence of such Lender’s obligations hereunder (taking into consideration such
Lender’s policies with respect to capital adequacy and desired return on capital), then from time
to time within 30 days following written demand of such Lender setting forth in reasonable detail
the charge and the calculation of such reduced rate of return (with a copy of such demand to the
Administrative Agent given in accordance with Section 3.08), the Borrower shall pay to such Lender
such additional amounts as will compensate such Lender for such reduction.



     Section 3.06. Reserves on Eurodollar Rate Loans. (a) If any Lender is required to maintain
reserves with respect to liabilities or assets consisting of or including Eurodollar funds or
deposits (currently known as “Eurocurrency liabilities”), the Borrower shall pay to such Lender
additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive in the absence of manifest error).



     (b) If any Lender is required to comply with any reserve ratio requirement or analogous
requirement of any other Governmental Authority imposed in respect of the
maintenance of the Commitments or the funding of the Eurodollar Rate Loans, the Borrower shall
pay such additional costs (expressed as a percentage per annum and rounded upwards, if necessary,
to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan
by such Lender (as determined by such Lender in good faith, which determination shall be conclusive
absent manifest error) which in each case shall be due and payable on each date on which interest
is payable on such Loan. Any Lender requesting payment from the Borrower under Section 3.06(a) or
(b) shall give the Borrower at least fifteen days’ prior notice (with a copy to the Administrative
Agent). If a Lender fails to give notice fifteen days prior to the relevant Interest Payment Date,
such additional interest or cost shall be due and payable fifteen days from receipt of such notice.



     Section 3.07. Funding Losses. Upon demand of any Lender (with a copy to the
Administrative Agent), the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:



65









 






     (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); or




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


including any loss or expense arising from the liquidation or reemployment of funds obtained by
such Lender to maintain such Loan, or from fees payable to terminate the deposits from which such
funds were obtained.



For purposes of calculating amounts payable by the Borrower to any Lender under this Section 3.07,
such Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate
Loan was in fact so funded.




     Section 3.08. Matters Applicable to All Requests for Compensation. (a) Any Agent or any Lender
claiming compensation under this Article 3 shall deliver a certificate to the Borrower
contemporaneously with the demand for payment setting forth in reasonable detail a calculation of
the additional amount or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Agent or such Lender may use any
reasonable averaging and attribution methods.



     (b) With respect to any Lender’s claim for compensation under any of Sections 3.01 through
Section 3.07, the Borrower shall not be required to compensate such Lender
for any amount incurred more than 180 days prior to the date that such Lender notifies the
Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise
to such increased cost or reduction is retroactive, then such 180-day period referred to above
shall be extended to include the period of retroactive effect thereof. If any Lender requests
compensation from the Borrower under any of Sections 3.04 through 3.06, the Borrower may, by notice
to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to
make or continue from one Interest Period to another Eurodollar Rate Loans, or to convert Base Rate
Loans into Eurodollar Rate Loans, until the event or condition giving rise to such request ceases
to be in effect (in which case the provisions of Section 3.08(c) shall be applicable); provided
that such suspension shall not affect the right of such Lender to receive the compensation so
requested.



     (c) If the obligation of any Lender to make or continue from one Interest Period to another
any Eurodollar Rate Loan (or to convert Base Rate Loans into Eurodollar Rate Loans) shall be
suspended pursuant to Section 3.08(b) hereof, such Lender’s Eurodollar Rate Loans shall be
automatically converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for such Eurodollar Rate Loans (or, in the case of an immediate conversion required by
Section 3.02, on such earlier date as required by Law) and, unless and until such



66









 




Lender gives notice as provided below that the circumstances specified in Sections 3.01 through
3.06 hereof that gave rise to such conversion no longer exist:





     (i) to the extent that such Lender’s Eurodollar Rate Loans have been so converted, all
payments and prepayments of principal that would otherwise be applied to such Lender’s Eurodollar
Rate Loans shall be applied instead to its Base Rate Loans; and




     (ii) all Loans that would otherwise be made or continued from one Interest Period to another
by such Lender as Eurodollar Rate Loans shall be made or continued instead as Base Rate Loans, and
all Base Rate Loans of such Lender that would otherwise be converted into Eurodollar Rate Loans
shall remain as Base Rate Loans.



     (d) If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that
the circumstances specified in any of Sections 3.01 through 3.06 that gave rise to the conversion
of such Lender’s Eurodollar Rate Loans pursuant to this Section 3.08 no longer exist (which such
Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar
Rate Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be
automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such
outstanding Eurodollar Rate Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Lenders holding Eurodollar Rate Loans and by such Lender are held pro rata
(as to principal amounts, interest rate basis, and Interest Periods) in accordance with their
respective Commitments.



     (e) Each Lender agrees that (i) upon the occurrence of any event giving rise to the
operation of Section 3.01(b) or (d) with respect to such Lender it will, if requested by the
Borrower, use commercially reasonable efforts (subject to such Lender’s internal policies and any
legal or regulatory restrictions) to avoid the consequences of such event, including to designate
another Lending Office for any Loan or Letter of Credit affected by such event and (ii) if any
Lender (A) requests compensation under any of Sections 3.04 through 3.06, or (B) notifies the
Borrower that it has determined that it is unlawful for its applicable Lending Office to make,
maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then such Lender will, if requested by the Borrower, use commercially reasonable
efforts to designate another Lending Office for any Loan or Letter of Credit affected by such
event; provided that in each case, such efforts are made on terms that, in the reasonable judgment
of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal
or regulatory disadvantage, and provided further that nothing in this Section 3.08(e) shall affect
or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section
3.01(b) or (d), 3.02 or 3.04 through 3.06.



     Section 3.09. Replacement of Lenders Under Certain Circumstances. (a) If at any time:




     (i) the Borrower becomes obligated to pay additional amounts or indemnity payments described
in Section 3.01 or Sections 3.04 through 3.06, as a result of any condition described in such
Sections or any Lender ceases to make Eurodollar Rate Loans as a result of any condition described
in Section 3.02 or Sections 3.04 through 3.06 or



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     (ii) any Lender becomes a Defaulting Lender,


then the Borrower may, on ten Business Days’ prior written notice to the Administrative Agent and
such Lender, either:





     (A) replace such Lender by causing such Lender to (and such Lender shall be obligated
to) assign 100% of its relevant Commitments and the principal of its relevant outstanding
Loans plus any accrued and unpaid interest pursuant to Section 10.07(d) (with the
assignment fee to be paid by the Borrower unless waived by the Administrative Agent in
such instance) all of its relevant rights and obligations under this Agreement to one or
more Eligible Assignees; provided that neither the Administrative Agent nor any Lender
shall have any obligation to the Borrower to find a replacement Lender or other such
Person; or




     (B) terminate the Commitment of such Lender and repay all obligations of the
Borrower owing to such Lender relating to the Loans and participations held by such
Lender as of such termination date.



     (b) Any Lender being replaced pursuant to Section 3.09(a) above shall (i) execute and deliver
an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans, and (ii) deliver any Notes evidencing such
Loans to the Borrower or the Administrative
Agent.



     (c) Pursuant to an Assignment and Assumption arising by operation of Section 3.09(b), (i) the
assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s
Commitment and outstanding Loans and participations in L/C Obligations and Swing Line Loans, (ii)
all obligations of the Borrower owing to the assigning Lender relating to the Loans and
participations so assigned shall be paid in full by the assignee Lender to such assigning Lender
concurrently with the execution of such Assignment and Assumption and (iii) upon such payment and,
if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Note or
Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the
assigning Lender shall cease to be a Lender hereunder with respect to such assigned Loans,
Commitments and participations, except with respect to indemnification provisions under this
Agreement, which shall survive as to such assigning Lender.



     (d) Notwithstanding anything to the contrary, (i) any Lender that acts as L/C Issuer may not
be replaced by operation of this Section 3.09 at any time that it has any Letter of Credit
outstanding unless arrangements reasonably satisfactory to such L/C Issuer (including the
furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer
reasonably satisfactory to such L/C Issuer or the depositing of cash collateral into a Cash
Collateral Account in amounts and pursuant to arrangements reasonably satisfactory to such L/C
Issuer) have been made with respect to such outstanding Letter of Credit and (ii) any Lender that
acts as Administrative Agent may not be replaced by operation of this Section 3.09 except in
accordance with the terms of Section 9.09.



     (e) The Borrower shall also be entitled to replace a Dissenting Lender in accordance with
Section 10.01(d).



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     Section 3.10. Survival. All of the Borrower’s obligations under this Article 3 shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE 4

Conditions Precedent to Credit
Extensions




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



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals, or
electronic copies or facsimiles followed promptly by originals (unless otherwise specified), each
properly executed by a Responsible Officer of the signing Loan Party (as applicable), each in form
and substance reasonably satisfactory to the Administrative Agent and its legal counsel:




     (i) executed counterparts of this Agreement and the Subsidiary Guaranty;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least
two Business Days prior to the Closing Date;




     (iii) executed counterparts of the Security Agreement together with the following (all of
which are to be held in escrow until the consummation of the Exchange and the Spin-Off):




     (A) certificates representing any certificated Pledged Equity referred to therein
accompanied by undated stock powers executed in blank and instruments evidencing the
Pledged Debt endorsed in blank;




     (B) a completed Perfection Certificate, substantially in the form of Exhibit I,
dated the Closing Date and executed by a Responsible Officer of each Loan Party (or such
other form as may be reasonably acceptable to the Administrative Agent);




     (C) copies of all necessary searches with respect to the Collateral, and all proper
financing statements, duly prepared for filing under the Uniform Commercial Code in all
jurisdictions that the Administrative Agent may reasonably deem necessary in order to
perfect and protect the Liens created under the Security Agreement, covering the
Collateral described in the Security Agreement;




     (D) evidence reasonably satisfactory to the Administrative Agent that the Liens (if
any) indicated on a lien search with respect to each Loan Party in the jurisdiction where
such Loan Party is located (within the meaning of Section 9-307 of the Uniform Commercial
Code as in effect in the State of New York) or




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any other relevant jurisdiction are either discharged or permitted by Section 7.01; and




     (E) evidence that all other actions, recordings and filings of or with respect to
the Security Agreement that the Administrative Agent may reasonably deem necessary in
order to perfect and protect the Liens created thereby shall have been taken, completed
or otherwise provided for in a manner reasonably satisfactory to the Administrative
Agent;




     (iv) the Intellectual Property Security Agreement, duly executed by each Loan Party, together
with evidence that all action that the Administrative Agent in its reasonable judgment may
reasonably deem necessary in order to perfect and protect the Liens created under the Intellectual
Property Security Agreement has been taken (all of which are to be held in escrow until the
consummation of the Exchange and the Spin-Off);




     (v) 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;




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




     (vii) opinions of Nelson Mullins Riley & Scarborough LLP (and any other relevant counsel
to the Loan Parties), providing legal opinions substantially similar to those set forth on
Exhibit J (with standard exceptions and qualifications reasonably acceptable to the
Administrative Agent) and in each case, addressed to each Agent and each Lender;




     (viii) a certificate signed by a Responsible Officer of the Borrower certifying as to the
satisfaction of the conditions set forth in Section 4.02(a) and Section 4.02(b);




     (ix) a certificate attesting to the Solvency of the Loan Parties and the
Restricted Subsidiaries (taken as a whole) after giving effect to the Contribution, from the chief
financial officer of the Borrower;




     (x) evidence that all insurance required to be maintained pursuant to the Loan Documents has
been obtained and is in effect and that the Administrative Agent has been named as loss payee or
additional insured, as appropriate, under each insurance policy with respect to casualty and
liability insurance as to which the Administrative Agent shall have requested to be so named; and




     (xi) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to
the initial Credit Extension.



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     (b) All fees and expenses required to be paid by (or on behalf of) the Borrower to the Agents
and the Lenders on or before the Closing Date shall have been paid in full in cash.



     (c) All governmental and third party consents and approvals necessary in connection with the
Loan Documents and the transactions contemplated thereby (including the granting of the Liens on
the Collateral) shall have been obtained.



     (d) The Administrative Agent and the Lenders shall have received the Historical Financial
Statements, the Closing Date Forecasts and the Pro Forma Financial Statements.



     (e) The Arrangers shall be reasonably satisfied with the terms and conditions of the
Distribution Agreement and the other Transaction Documents (it being understood that the Arrangers
are satisfied with the Distribution Agreement and all other Transaction Documents delivered to the
Arrangers and the Arrangers’ counsel on or prior to the date of this Agreement). Copies of the
Distribution Agreement and the other Transaction Documents and all material certificates, opinions
and other documents delivered thereunder shall have been made available to the Administrative
Agent, and the Administrative Agent shall have received a copy of the Distribution Agreement
certified by a financial officer or other executive officer of the Borrower as complete and
correct. The final terms and conditions of each aspect of the Transactions, including without
limitation, all tax aspects thereof, shall be consistent in all material respects with the terms
set forth in the Distribution Agreement and the information set forth in the Form 10.



     (f) The Transaction Documents shall not have been altered, amended or otherwise changed or
supplemented from the documents or drafts delivered to the Arrangers and the Arrangers’ counsel on
or prior to the date of this Agreement or any condition therein waived, in each case in a manner
that is materially adverse to the interests of the Lenders, without the prior written consent of
the Arrangers. The Contribution shall have been consummated and the Arrangers shall be reasonably
satisfied that the Exchange and the Spin-Off will be consummated substantially contemporaneously
with each other and with the initial funding or issuance of the Loans on the Closing Date, in each
case substantially in accordance with the terms of the applicable Transaction Documents and
applicable law and regulatory approvals.



     (g) The Senior Notes shall have been (or substantially contemporaneously with the making of
the Term Loans shall be) issued to FNIS in an aggregate principal amount that together with the
aggregate principal amount of the Term Loans shall equal to $1,585,000,000.



     (h) There has not occurred since December 31, 2007 any event, occurrence, change, state of
circumstances or condition which, individually or in the aggregate has had or could reasonably be
expected to have a Material Adverse Effect.



     Section 4.02. Conditions to All Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the
following conditions precedent:



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     (a) The representations and warranties of each Loan Party contained in Article 5 or any other
Loan Document shall be true and correct in all material respects on and as of the date of such
Credit Extension, except (i) 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 (ii) that for purposes of this Section 4.02(a), the representations and
warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial
statements furnished pursuant to Section 6.01(a) and Section 6.01(b) and, in the case of the
financial statements furnished pursuant to Section 6.01(b), the representations contained in
Section 5.05(a), as modified by this clause (ii), shall be qualified by the statement that such
financial statements are subject to the absence of footnotes and year-end audit adjustments.



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



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



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



ARTICLE 5

 Representations and Warranties




     The Borrower represents and warrants to the Agents and the Lenders that:



     Section 5.01. Existence, Qualification and Power; Compliance with Laws. Each Restricted
Company (a) is a Person, validly existing and in good standing under the Laws of the jurisdiction
of its organization, (b) has all requisite power and authority 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, (c) is duly qualified and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the conduct of its business
requires such qualification, (d) is in compliance with all Laws (including, without limitation,
Environmental Laws), orders, writs and injunctions, and (e) has all requisite governmental
licenses, authorizations, consents and approvals to operate its business as currently conducted;
except in each case referred to in clauses (a) (other than with respect to the Borrower), (c), (d)
or (e), to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.



     Section 5.02. Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is a party, and, as of the Closing Date, the
consummation of the various steps in the Transaction, are (a) within such Loan



72









 







Party’s corporate or other powers, (b) have been duly authorized by all necessary corporate,
shareholder or other organizational action, and (c) do not and will not (i) contravene the terms of
any of such Person’s Organization Documents, (ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or
require any payment to be made under, (A) any documentation governing any Permitted Subordinated
Indebtedness, (B) any other 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 (C) any order,
injunction, writ or decree, of or with any Governmental Authority or any arbitral award to which
such Person or its property is subject or (iii) violate, in any material respect, any Law; except
with respect to any conflict, breach or contravention or payment (but not creation of Liens)
referred to in clause (ii) to the extent that such conflict, breach, contravention or payment could
not reasonably be expected to have a Material Adverse Effect.



     Section 5.03. Governmental Authorization; Other Consents. No material 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 to be made or obtained by any Loan Party in
connection with (a) the execution, delivery or performance by any Loan Party of this Agreement or
any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral
Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any
Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the
Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals,
consents, exemptions, authorizations, actions, notices and filings which have been duly obtained,
taken, given or made and are in full force, (iii) those approvals, consents, exemptions,
authorizations, actions, notices or filings described in the Security Agreement and (iv) those
approvals, consents, exemptions, authorizations, actions, notices or filings, the failure of which
to obtain or make could not reasonably be expected to have a Material Adverse Effect.



     Section 5.04. Binding Effect. This Agreement and each other Loan Document has been duly
executed and delivered by each Loan Party that is party thereto. This Agreement and each other Loan
Document constitutes a legal, valid and binding obligation of each Loan Party that is a party
thereto, enforceable against such Loan Party in accordance with its terms, except as such
enforceability may be limited by bankruptcy insolvency, reorganization, receivership, moratorium or
other Laws affecting creditors’ rights generally and by general principles of equity.



     Section 5.05. Financial Statements; No Material Adverse Effect. (a) The (i) audited
consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2007, and the related consolidated statements of income, shareholders’ equity and cash flows for
such fiscal year of the Borrower and its Subsidiaries, including the notes thereto and (ii)
unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated March 31, 2008, and
the related consolidated statements of income, shareholders’ equity and cash flows for the fiscal
quarter period ended on such date (collectively, the “Historical Financial Statements” ) fairly
present in all material respects the financial condition of the Borrower and its Subsidiaries as of
the date thereof and their results of operations and cash flows for the period



73









 







covered thereby in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein (and, with respect to unaudited financial statements,
the absence of footnotes and subject to such adjustments as would be made in connection with the
audit of financial statements for the relevant period).



     (b) Since December 31, 2007, there has been no change, effect, event or, occurrence that has
had or would reasonably be expected to have a Material Adverse Effect.



     (c) The forecasts prepared by management of the Borrower of consolidated balance sheets,
income statements and cash flow statements (i) for each quarter commencing with the fiscal quarter
ending on September 30, 2008 through the fiscal quarter ending on December 31, 2010 and (ii) for
each year commencing with the fiscal year ending on December 31, 2011 through the fiscal year
ending on December 31, 2014 (the “Closing Date Forecasts” ), copies of which have been furnished to
the Administrative Agent and the Lenders prior to the Closing Date, have been prepared in good
faith based upon assumptions believed in good faith by the Borrower to be reasonable in light of
conditions existing at the time of preparation, it being understood that (x) such forecasts, as to
future events, are not to be viewed as facts, that actual results during the period or periods
covered by any such forecasts may differ significantly from the forecasted results and that such
differences may be material and that such forecasts are not a guarantee of financial performance
and (y) no representation is made with respect to information of a general economic or general
industry nature.



     (d) The pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of March
31, 2008 and the pro forma consolidated statements of income, shareholders’ equity and cash flows
for the fiscal quarter ending on March 31, 2008 (collectively, the “Pro Forma Financial Statements” )
have been prepared giving effect to the Transaction as if it had occurred on such date or at the
beginning of such period, as the case may be. The Pro Forma Financial Statements (i) have been
prepared in good faith based on assumptions believed by the Borrower to be reasonable, (ii)
accurately reflect all adjustments reasonably believed by the Borrower to be necessary to give
effect to the Transaction and (iii) fairly present in all material respects, on a pro forma basis
giving effect to the Transaction, the financial condition of the Borrower and its Subsidiaries as
of such date and their results of operations and cash flows for the period covered thereby.



     Section 5.06. Litigation and Environmental Matters. (a) Except as disclosed in Schedule
5.06, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental
Authority or Regulatory Supervising Organization, by or against the Borrower or against any of its
Restricted Subsidiaries or against any of their properties or revenues that either individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect.



     (b) Except for matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any Restricted Subsidiary
(i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, or (iii) has received notice of any claim with respect to any
Environmental Liability.



74









 





     (c) The Material Real Properties do not contain any Hazardous Materials in amounts or
concentrations which (i) constitute a violation of, (ii) require remedial action under or (iii)
could result in any Loan Party or any of its Restricted Subsidiaries or any Lender incurring
liability under, Environmental Laws, which violations, remedial actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.



     Section 5.07. Ownership of Property; Liens. Each Loan Party and each of its Restricted
Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests
in, or easements or other limited property interests in, all real property necessary in the
ordinary conduct of its business, free and clear of all Liens except for minor defects in title
that do not materially interfere with its ability to conduct its business or to utilize such assets
for their intended purposes and Liens permitted by Section 7.01 and except where the failure to
have such title or the existence of such Lien could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



     Section 5.08. Transaction Documents. As of the Closing Date, each of the Transaction
Documents has been duly authorized, executed and delivered by the Borrower, and to the knowledge of
the Borrower, each of the other parties thereto and constitutes a legal, valid and binding
obligation of the Borrower, and to the knowledge of the Borrower, each other party thereto,
enforceable in accordance with its terms, except as such enforceability may be limited by
bankruptcy insolvency, reorganization, receivership, moratorium or other Laws affecting creditors’
rights generally and by general principles of equity. As of the Closing Date, a true, correct and
complete copy (including any amendments and waivers) of each Transaction Document has been
furnished to the Administrative Agent, together with all material certificates, opinions and other
documents delivered thereunder.



     Section 5.09. Taxes. The Borrower and its Subsidiaries have filed all Federal and material
state and other tax returns and reports required to be filed, and have paid all Federal and
material state and other taxes, assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or assets otherwise due and payable, except those (a) which
are not overdue by more than 30 days, (b) which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been provided in accordance
with GAAP or (c) with respect to which the failure to make such filing or payment could not
reasonably be expected to have a Material Adverse Effect.



     Section 5.10. ERISA Compliance. (a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA and the Code except to the extent that non-compliance could not
reasonably be expected to have a Material Adverse Effect. In the preceding five years, each Loan
Party and each ERISA Affiliate have made all required contributions to each Pension Plan subject to
Section 412 of the Code, and in the preceding five years, no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan, except to the extent a failure to make such contributions or application, as the case
may be, could not reasonably be expected to have a Material Adverse Effect.



     (b) There are no pending or, to the knowledge of the Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that



75









 







would 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) (i) No ERISA Event
has occurred or is reasonably expected to occur; (ii) no Pension Plan
has an “accumulated funding deficiency” (as defined in Section 412 of the Code), whether or not
waived, and no application for a waiver of the minimum funding standard has been filed with respect
to any Pension Plan; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums not yet due or premiums due and not yet delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to
each of the foregoing clauses of this Section 5.10(c), as could not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.



     Section 5.11. Subsidiaries; Equity Interests. As of the Closing Date, (a) the Equity Interests
of each Restricted Subsidiary that are owned directly or indirectly by the Borrower are owned free
and clear of all Liens except for any Lien permitted under Section 7.01 and (b) Schedule 5.11 (i)
sets forth the name and jurisdiction of organization of each Subsidiary (other than Subsidiaries
that in the aggregate represent less than the greater of (x) 5% of the Total Consolidated Assets
and (y) 5% of the Consolidated EBITDA of the Borrower and its Consolidated Subsidiaries) and (ii)
sets forth the ownership interest of the Borrower and any other Subsidiary in each such Subsidiary,
including the percentage of such ownership and identifies each Subsidiary that is a Regulated
Subsidiary, if any.



     Section 5.12. Margin Regulations; Investment Company Act. (a) No proceeds of any Borrowings or
drawings under any Letter of Credit will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock in violation of
Regulation U issued by the FRB.



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



     Section 5.13. Disclosure. No report, financial statement, certificate or other written
information furnished by or on behalf of any Loan Party to any Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered
hereunder or any other Loan Document (as modified or supplemented by other information so
furnished) when taken as a whole (and considered together with all information publicly disclosed
by the Consolidated Companies) 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 and
at the time which they were made, not materially misleading; provided that, with respect to
financial estimates,
projected or forecasted financial information and other forward-looking information, Borrower
represents and warrants only that such information was



76









 







prepared in good faith based upon assumptions believed by the Borrower to be reasonable in light of
conditions existing at the time of preparation; it being understood that (A) such projections and
forecasts, as to future events, are not to be viewed as facts, that actual results during the
period or periods covered by any such projections or forecasts may differ significantly from the
projected or forecasted results and that such differences may be material and that such projections
and forecasts are not a guarantee of financial performance and (B) no representation is made with
respect to information of a general economic or general industry nature.



     Section 5.14. Intellectual Property; Licenses, etc. Each Loan Party and its Restricted
Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses, database rights and design rights and
other intellectual property rights (collectively, “IP Rights” ) that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of any other Person,
except to the extent such failure to own or possess the right to use or such conflicts, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Borrower, no slogan or other advertising device, product, process,
method, substance, part or other material now employed by any Loan Party or any Restricted
Subsidiary infringes upon any rights held by any other Person except for such infringements,
individually or in the aggregate, which could not reasonably be expected to have a Material Adverse
Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of
the Borrower, threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.



     Section 5.15. Solvency. On the Closing Date after giving effect to the steps of the
Transaction that have been completed as of such date, the Loan Parties, on a consolidated basis,
are Solvent.



     Section 5.16. Perfection, Etc. All filings and other actions necessary to perfect and protect
the Liens in the Collateral created under and in the manner contemplated by the Collateral
Documents have been duly made or taken or otherwise provided for in the manner reasonably requested
by the Administrative Agent and are in full force and effect, and the Collateral Documents create
in favor of the Collateral Agent for the benefit of the Secured Parties a valid and, together with
such filings and other actions, perfected first priority Lien in the Collateral, securing the
payment of the Secured Obligations, subject to Liens permitted by Section 7.01. The Loan Parties
are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the
Liens created or permitted under the Loan Documents.



ARTICLE 6

Affirmative Covenants




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding or not otherwise provided for in full in a manner reasonably satisfactory
to the L/C Issuer, the Borrower shall, and shall (except in the case of the covenants set forth in
Section 6.01, Section 6.02, Section 6.03 and Section 6.14) cause each Restricted Subsidiary to:



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     Section 6.01. Financial Statements. Deliver to the Administrative Agent for further
distribution to each Lender:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower beginning with the fiscal year ending on December 31, 2008, a consolidated balance
sheet of the Borrower 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, and audited and accompanied by a report
and opinion of KPMG LLP or any other independent certified public accountant of nationally
recognized standing, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit; provided that if the
independent auditor provides an attestation and a report with respect to management’s report on
internal control over financial reporting and its own evaluation of internal control over financial
reporting, then such report may include a qualification or limitation due to the exclusion of any
acquired business from such report to the extent such exclusion is permitted under rules or
regulations promulgated by the SEC or the Public Company Accounting Oversight Board;



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower beginning with the fiscal quarter ending
on June 30, 2008, a consolidated balance sheet of the Borrower 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 fiscal year
then ended, setting forth, in each case, in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly
presenting in all material respects the financial condition, results of operations, shareholders’
equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes;



     (c) as soon as available, but in any event no later than 90 days after the end of each fiscal
year, forecasts prepared by management of the Borrower, in form reasonably satisfactory to the
Administrative Agent of consolidated balance sheets, income statements and cash flow statements of
the Borrower and its Subsidiaries for the fiscal year following such fiscal year then ended, which
shall be prepared in good faith upon reasonable assumptions at the time of preparation and which
shall state therein all the material assumptions on the basis of which such forecasts were
prepared), it being understood that actual results may vary from such forecasts and that such
variations may be material; and



     (d) if there are any Unrestricted Subsidiaries as of the last day of any fiscal quarter,
simultaneously with the delivery of each set of consolidated financial statements referred to in
Section 6.01(a) and Section 6.01(b) above, the related consolidating financial statements
reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from
such consolidated financial statements.



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     Section 6.02. Certificates; Other Information. Deliver to the Administrative Agent for further
distribution to each Lender:



     (a) no later than five Business Days after the delivery of each set of consolidated financial
statements referred to in Section 6.01(a), a certificate of the Borrower’s independent certified
public accountants certifying such financial statements and stating that in making the examination
necessary therefor no knowledge was obtained of any Event of Default under Section 7.09 or, if any
such Event of Default shall exist, stating the nature and status of such event;



     (b) no later than five Business Days after the delivery of each set of consolidated financial
statements referred to in Section 6.01(a) and 6.01(b) (commencing with the first fiscal quarter
ending September 30, 2008), a duly completed Compliance Certificate signed by a Responsible Officer
of the Borrower;



     (c) promptly after the same are publicly available, copies of each annual report, proxy or
financial statement sent to the stockholders of the Borrower, and copies of all annual, regular,
periodic and special reports and registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) which the Borrower files, copies of any
report, filing or communication with the SEC under Section 13 or 15(d) of the 1934 Act, or with any
Governmental Authority that may be substituted therefor, or with any national securities exchange,
and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;



     (d) promptly after the furnishing thereof, copies of any notices of default or acceleration
received by any Loan Party or notices of default or acceleration furnished by any Loan Party to any
holder of debt securities of any of the Restricted Companies pursuant to the terms of any
documentation governing any Indebtedness (other than Indebtedness hereunder and Indebtedness owed
by one Restricted Company to another Restricted Company) in a principal amount greater than the
Threshold Amount and not otherwise required to be furnished to the Lenders;



     (e) promptly after the receipt thereof by a Specified Responsible Officer of the Borrower,
copies of each notice or other correspondence received from any Governmental Authority concerning
any material investigation or other material inquiry regarding any material violation of applicable
Law by any Restricted Company which would reasonably be expected to have a Material Adverse Effect;



     (f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(b), (i)
a report identifying all Material Real Property disposed of by any Loan Party or any of its
Restricted Subsidiaries since the delivery of the last supplements and a list and description of
all Material Real Property acquired since the delivery of the last supplements (including the
street address (if available), county or other relevant jurisdiction, state and the record owner),
(ii) a description of each event, condition or circumstance during the last fiscal quarter covered
by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) and (iii) a
list of each Subsidiary that is a Regulated Subsidiary as of the date of delivery of such



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Compliance Certificate that was not identified as such either in Schedule 5.11 to this Agreement or
in any Compliance Certificate previously delivered pursuant to this clause (f); and



     (g) promptly after any request therefor, such additional information regarding the business,
legal, financial or corporate affairs of any Restricted Company, 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 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provides a link thereto on the Borrower’s website on
the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are
posted on the Borrower’s behalf on SyndTrak or other relevant website, to which each Lender and the
Administrative Agent are granted access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that the Borrower shall notify (which may be by
facsimile or electronic mail or by an automated electronic alert of a posting) the Administrative
Agent of the posting of any such documents which notice may be included in the certificate
delivered pursuant to Section 6.02(b). Except for such Compliance Certificates, the Administrative
Agent shall have no obligation to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents. The Borrower hereby acknowledges that (A) the Administrative Agent
and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,“Borrower Materials” )
by posting the Borrower Materials on SyndTrak 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 Borrower or its securities) (each, a
“Public Lender” ). The Borrower hereby agrees that (1) all Borrower Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (2) by marking
Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative
Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as either
publicly available information or not material information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of United States Federal
and state securities laws; (3) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor”; and (4) the Administrative
Agent and the Arrangers shall treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated
“Public Investor”.



     Section 6.03. Notices. Promptly notify the Administrative Agent after a Specified Responsible
Officer obtains knowledge of:



     (a) the occurrence of any Default;



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     (b) any matter that has resulted or would reasonably be expected to result in a Material
Adverse Effect, including any matter arising out of or resulting from (i) breach or non-performance
of, or any default under, a Contractual Obligation of any Loan Party or any Subsidiary, (ii) any
dispute, litigation, investigation, proceeding or suspension between any Loan Party or any
Restricted Subsidiary and any Governmental Authority, (iii) the commencement of, or any material
adverse development in, any litigation, investigation or proceeding affecting any Loan Party or any
Subsidiary or (iv) the occurrence of any ERISA Event; and



     (c) the occurrence of any Casualty Event with respect to any Material Real Property having a
cost of restoration reasonably estimated by the Borrower to exceed $500,000.



     Each notice pursuant to this Section 6.03 shall be accompanied by a written statement of a
Responsible Officer of the Borrower (x) that such notice is being delivered pursuant to Section
6.03(a), (b) or (c) (as applicable) and (y) setting forth details of the occurrence referred to
therein and, in the case of a notice delivered pursuant to Section 6.03(a) or (b), stating what
action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity to the extent known any and all provisions of
this Agreement and any other Loan Document in respect of which such Default exists.



     Section 6.04. Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall
become due and payable, all of its obligations and liabilities except, in each case, to the extent
the failure to pay or discharge the same could not reasonably be expected to have a Material
Adverse Effect or such obligations or liabilities are being contested in good faith by appropriate
proceedings.



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



     Section 6.06. Maintenance of Properties. Except if the failure to do so could not reasonably
be expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in good working order,
ordinary wear and tear excepted and casualty and condemnation excepted, and (b) make all necessary
renewals, replacements, modifications, improvements, upgrades, extensions and additions to material
properties and equipment in accordance with prudent industry practice.



     Section 6.07. Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies, insurance of such types and in such amounts (after giving effect to any
self-insurance) reasonable and customary for similarly situated Persons engaged in the same or



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similar businesses as the Borrower and the Restricted Subsidiaries) as are customarily carried
under similar circumstances by such other Persons except, in the case of Foreign Subsidiaries, to
the extent that the failure to maintain such insurance with respect to one or more Foreign
Subsidiaries could not reasonably be expected to result in a Material Adverse Effect.



     Section 6.08. Compliance with Laws. Comply in all material respects with the requirements of
all Laws (including, without limitation, Environmental Laws) and all orders, writs, injunctions,
and decrees applicable to it or to its business or property, except if the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect or the necessity of
compliance therewith is being contested in good faith by appropriate proceedings.



     Section 6.09. Books and Records. Maintain proper books of record and account, in a manner to
allow financial statements to be prepared in conformity with GAAP consistently applied shall be
made of all material financial transactions and matters involving the assets and business of the
Borrower or such Restricted Subsidiary, as the case may be.



     Section 6.10. Inspection Rights. With respect to any Loan Party, permit representatives and
independent contractors of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided that, excluding any such visits and inspections
during the continuation of an Event of Default, only the Administrative Agent on behalf of the
Lenders may exercise rights under this Section 6.10 and the Administrative Agent shall not exercise
such rights more often than once during any calendar year absent the existence of an Event of
Default and such inspections shall be conducted at the sole expense of the Administrative Agent
without charge to the Borrower; provided further that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any time during normal
business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall
give the Borrower the opportunity to participate in any discussions with the Borrower’s
accountants.



     Section 6.11. Use of Proceeds. Use the proceeds of the Credit Extensions under the Revolving
Credit Facility (i) to pay fees and expenses incurred in connection with the Transaction and (ii)
to provide ongoing working capital and for other general corporate purposes of the Consolidated
Companies. The Term Loans to be issued to the Initial Term Lender on the Closing Date will be
issued to FNIS in partial consideration for the transfer to the Borrower of the Acquired Business
and to subsequently effectuate the Exchange.



     Section 6.12. Covenant to Guarantee Guaranteed Obligations and Give Security.
 (a) Cause the following Restricted Subsidiaries to guarantee the Guaranteed Obligations (each a
“Subsidiary Guarantor” ): such Restricted Subsidiaries as shall constitute, together with the
Borrower, (x) at least 95% of the Consolidated EBITDA of the
Borrower and its Domestic Subsidiaries (excluding, for the purposes of such calculation, (1) all
Unrestricted Subsidiaries, but including any Subsidiaries that were, at one time, designated as
Unrestricted Subsidiaries, but



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have been redesignated as Restricted Subsidiaries pursuant to Section 6.14 and (2) all Regulated
Subsidiaries) for the four fiscal quarters most recently ended for which financial statements have
been delivered pursuant to Section 6.01 and (y) at least 95% of the Total Assets of the Borrower
and its Domestic Subsidiaries (excluding, for the purposes of such calculation, (1) all
Unrestricted Subsidiaries, but including any Subsidiaries that were, at one time, designated as
Unrestricted Subsidiaries, but have been redesignated as Restricted Subsidiaries pursuant to
Section 6.14 and (2) all Regulated Subsidiaries) as of the last day of the fiscal quarter most
recently ended for which financial statements have been delivered pursuant to Section 6.01.
Notwithstanding the foregoing, (i) any Restricted Subsidiary that is a guarantor of any Permitted
Subordinated Indebtedness shall also be required to be a Subsidiary Guarantor, (ii) no Regulated
Subsidiary shall be required to become a Subsidiary Guarantor and (iii) no Subsidiary shall be
required to be a Subsidiary Guarantor if such Subsidiary is a Foreign Subsidiary or a Domestic
Subsidiary of a Foreign Subsidiary.



     (b) At the end of each fiscal quarter of the Borrower, the Borrower shall determine whether
any Restricted Companies that are not currently Subsidiary Guarantors shall be required, pursuant
to the provisions of Section 6.12(a) to become Subsidiary Guarantors and, within 60 days after the
end of such fiscal quarter (or such longer period as the Administrative Agent may agree in its
reasonable discretion), will at the Borrower’s expense:




     (i) Cause any new Subsidiary Guarantors (each, an “Additional Guarantor” ) to duly
execute and deliver to the Administrative Agent a guaranty substantially in the form of
Exhibit F (either directly or via a guaranty supplement) or such other form of guaranty or
guaranty supplement to guarantee the Guaranteed Obligations in form and substance
reasonably satisfactory to the Administrative Agent and the Borrower, it being understood
and agreed that each Subsidiary that is required to be a Subsidiary Guarantor on the
Closing Date shall duly execute and deliver to the Administrative Agent a Subsidiary
Guaranty on the Closing Date; provided that in connection with any acquisition of any
Restricted Company, if any Subsidiary that is not already a Subsidiary Guarantor shall be
required, pursuant to the provisions of Section 6.12 to become a Subsidiary Guarantor, the
Borrower shall, in each case at the Borrower’s expense and within 30 days of being so
required, cause such Subsidiary to duly execute and deliver to the Administrative Agent a
Subsidiary Guaranty;




     (ii) Cause such Additional Guarantor to furnish to the Administrative Agent a
description of any Material Real Property owned by such Additional Guarantor consisting of
the street address (if available), county or other relevant jurisdiction, state and the
record owner;




     (iii) Cause such Additional Guarantor to duly execute and deliver to the
Administrative Agent Mortgages, Security Agreement Supplements, Intellectual Property
Security Agreements and other security documents, as specified by and in form and substance
reasonably satisfactory to the Administrative Agent (consistent with the Mortgages,
Security Agreement, Intellectual Property Security Agreement and other security documents
in effect on the Closing Date), granting a Lien in substantially all of the Material Real
Property and personal
property of such Restricted Subsidiary to the extent required by the applicable
Collateral Documents, in each case securing the



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Secured Obligations of such Additional Guarantor; provided that (A) no more than 65% of the
voting Equity Interests of any Foreign Subsidiary that are held directly by a Loan Party
shall be required to be pledged to support the Secured Obligations (except to the extent
such Equity Interests are pledged to support obligations under any Permitted Subordinated
Indebtedness); (B) no Equity Interests of any Restricted Subsidiary that is not made a
Subsidiary Guarantor in accordance with Section 6.12(a) which have been pledged to secure
Indebtedness of such Additional Guarantor assumed in connection with a Permitted
Acquisition that is secured by a Lien permitted by Section 7.01(p) shall be required to be
pledged, but only for so long as such Lien is in effect; (C) no Equity Interests of any
Foreign Subsidiary that are held directly by a Foreign Subsidiary shall be required to be
pledged to support the Secured Obligations (except to the extent such Equity Interests are
pledged to support obligations under any Permitted Subordinated Indebtedness); (D) Equity
Interests (or assets) in any Joint Venture which cannot be pledged without the consent of
any third party (and which such consent has not been obtained) shall not be required to be
pledged to support the Secured Obligations to the extent such restriction is enforceable;
(E) no assets of any Regulated Subsidiary (and no Equity Interests issued by such Regulated
Subsidiary) shall be required to be pledged to support the Obligations (except to the
extent such assets or such Equity Interests are pledged to support obligations under any
Permitted Subordinated Indebtedness); and (F) no Restricted Subsidiary shall be required to
pledge assets as to which the Administrative Agent reasonably determines that the costs
(including, without limitation, any mortgage, stamp, intangible or other tax, title
insurance or similar items) of obtaining the security interest in such assets are
unreasonably excessive in relation to the benefit to the Secured Parties of the security to
be afforded thereby.




     (iv) Cause such Additional Guarantor to deliver, to the extent required to be pledged
hereunder or under the Collateral Documents, (A) any and all certificates representing
Equity Interests owned by such Restricted Subsidiary accompanied by undated stock powers or
other appropriate instruments of transfer executed in blank and (B) a counterpart to a
global intercompany note and any other instruments required to be delivered under the
Collateral Documents evidencing any intercompany debt held by such Additional Guarantor
(except in respect of (1) intercompany debt of up to $10,000,000 in the aggregate for all
Loan Parties and (2) intercompany debt with any Regulated Subsidiary), indorsed in blank to
the Administrative Agent; and




     (v) Take and cause such Additional Guarantor to take whatever action (including the
recording of Mortgages with respect to Material Real Property, the filing of Uniform
Commercial Code financing statements, and delivery of stock and membership interest
certificates) as may be necessary in the reasonable opinion of the Administrative Agent to
vest in the Administrative Agent (or in any representative of the Administrative Agent
designated by it) valid and subsisting Liens on the properties purported to be subject to
the Mortgages, Security Agreement Supplements, Intellectual Property Security Agreements
and other security documents delivered pursuant to this Section 6.12, enforceable against
all third parties in accordance with their terms.



     (c) Within 45 days after the reasonable request therefor by the Administrative Agent, or such
longer period as the Administrative Agent may agree in its reasonable discretion, the




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Borrower shall, at the Borrower’s expense, deliver to the Administrative Agent a signed copy of an
opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the
Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in
Section 6.12(b) in respect of foreign Equity Interests or Material Real Property as the
Administrative Agent may reasonably request.




     (d) As promptly as practicable after the request therefor by the Administrative Agent, the
Borrower shall, at the Borrower’s expense, deliver to the Administrative Agent with respect to each
Material Real Property of each Additional Guarantor that is the subject of such request, title
reports in scope, form and substance reasonably satisfactory to the Administrative Agent and, to
the extent existing and available, surveys and environmental assessment reports.



     (e) Upon the acquisition by any Loan Party of any Material Real Property that is not already
subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured
Parties, the Borrower shall give notice thereof to the Administrative Agent and shall, if requested
by the Administrative Agent and required by the applicable Collateral Documents, cause such assets
to be subjected to a Lien securing such Loan Party’s Obligations and will take, or cause the
relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect or record such Lien to the extent required by the
applicable Collateral Documents, including the actions referred to in Section 6.12(b) with respect
to Material Real Property.



     (f) Notwithstanding anything to the contrary in this Agreement, to the extent that the
Borrower shall determine (and demonstrate to the reasonable satisfaction of the Administrative
Agent) at any time that certain Restricted Subsidiaries that are not required to be Subsidiary
Guarantors pursuant to the provisions of Section 6.12(a) above are parties to a Subsidiary Guaranty
and/or a Collateral Document, the Borrower shall be entitled to give notice to that effect to the
Administrative Agent (along with any information reasonably requested by the Administrative Agent
to support such determination) whereupon such Restricted Subsidiaries shall no longer be deemed to
be Subsidiary Guarantors and the Administrative Agent shall promptly release each such Restricted
Subsidiary from its Subsidiary Guaranty and any applicable Collateral Document (and release any
liens granted on any Collateral of such Restricted Subsidiary).



     Section 6.13. Further Assurances. (a) Promptly upon reasonable request by the Administrative
Agent, (i) correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Loan Document or other document or instrument relating
to any Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds, certificates, assurances and other
instruments as the Administrative Agent may reasonably require from time to time in order to carry
out more effectively the purposes of the Loan Documents.



     (b) Concurrently with the delivery of each Compliance Certificate pursuant to Section 6.02(b),
sign and deliver to the Administrative Agent an appropriate Intellectual Property Security
Agreement with respect to all After-Acquired Intellectual Property (as defined in the Security
Agreement) owned by it as of the last day of the period for which such Compliance Certificate is
delivered, to the extent that such After-Acquired Intellectual Property is not



85









 




covered by any previous Intellectual Property Security Agreement so signed and delivered by it;
provided that an Intellectual Property Security Agreement shall not be required to be delivered
with respect to After-Acquired Intellectual Property except as provided in the Security Agreement.
In each case, the Borrower will, and will cause each of the Subsidiary Guarantors to, promptly
cooperate as necessary to enable the Administrative Agent to make any necessary or reasonably
desirable recordations with the U.S. Copyright Office or the U.S. Patent and
Trademark Office, as appropriate.




     Section 6.14. Designation of Subsidiaries. The Borrower may at any time designate any
Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary; provided that (a) other than in the case of the designation of (x) a Joint Venture in
existence on the Closing Date that thereafter becomes a Subsidiary or (y) a Securitization Vehicle
(each, an “Excluded Unrestricted Subsidiary”), immediately before and after such designation, no
Default shall have occurred and be continuing, (b) other than in the case of the designation of an
Excluded Unrestricted Subsidiary, immediately after giving effect to such designation, the Borrower
and its Consolidated Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants
set forth in Section 7.09 (and, as a condition precedent to the effectiveness of any such
designation, the Borrower shall deliver to the Administrative Agent a certificate setting forth in
reasonable detail the calculations demonstrating such compliance), (c) no designation of a
Restricted Subsidiary as an Unrestricted Subsidiary, other than an Excluded Unrestricted
Subsidiary, shall be effective if, immediately after such designation, (i) the Consolidated EBITDA
of the Unrestricted Subsidiaries would exceed 5% of the Consolidated EBITDA of the Consolidated
Companies for the four fiscal quarter period then most recently ended or (ii) the aggregate
Investments made by Restricted Companies in Unrestricted Subsidiaries would exceed the sum of (x)
$50,000,000 plus (y) the aggregate amount of any cash repayment of or return on such Investments
theretofore received by Restricted Companies after the Closing Date, in each case determined
without regard to any Excluded Unrestricted Subsidiary at any time after such Person becomes a
Subsidiary, and (d) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a
“Restricted Subsidiary” for the purpose of any Permitted Subordinated Indebtedness. The designation
of any Subsidiary (other than a
Securitization Vehicle) as an Unrestricted Subsidiary shall constitute an Investment by the
applicable Restricted Companies therein at the date of designation in an amount equal to the net
book value (or, in the case of any guarantee or similar Investment, the amount) of the Restricted
Companies’ Investments therein. If any Person becomes a Restricted Subsidiary on any date after the
Closing Date (including by redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary),
the Indebtedness of such Person outstanding on such date will be deemed to have been incurred by
such Person on such date for purposes of Section 7.03, but will not be considered the sale or
issuance of Equity Interests for purposes of Section 7.05.



     Section 6.15. Interest Rate Protection. No later than 90 days following the Closing Date and
at all times thereafter until the second anniversary of the Closing Date, the Borrower shall obtain
and cause to be maintained protection against fluctuations in interest rates pursuant to one or
more interest rate protection agreements in form and substance reasonably satisfactory to the
Administrative Agent and with parties reasonably acceptable to the Administrative Agent (which may
include any Lender or its Affiliates), in order to ensure that no less than 50% of the aggregate
principal amount of the Term Loans and the Senior Notes (and any Permitted Senior



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Indebtedness that is a Permitted Refinancing thereof) then outstanding is either (i) subject to
such interest rate protection agreements or (ii) Indebtedness that bears interest at a fixed rate.




ARTICLE 7


Negative Covenants




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding or not otherwise provided for in full in a manner reasonably satisfactory
to the L/C Issuer, the Borrower shall not, nor shall it permit any Restricted Subsidiary to,
directly or indirectly:



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



     (a) Liens pursuant to any Loan Document(and, until the Spin-Off occurs, Liens pursuant to the
Existing FNIS Credit Agreement);



     (b) Liens existing on the Closing Date and listed on Schedule 7.01 and any modifications,
replacements, refinancings, renewals or extensions thereof; provided that (i) the Lien does not
extend to any additional property other than (A) after-acquired property that is affixed or
incorporated into the property covered by such Lien or financed by Indebtedness permitted under
Section 7.03, and (B) proceeds and products thereof and (ii) the modification, replacement,
renewal, extension or refinancing of the obligations secured or benefited by such Liens (if such
obligations constitute Indebtedness) is permitted by Section 7.03;



     (c) Liens for taxes, assessments or governmental charges which are not overdue for a period of
more than 30 days, or, if more than 30 days overdue, (i) 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 or (ii) with respect to
which the failure to make payment could not reasonably be expected to have a Material Adverse
Effect;



     (d) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen,
construction contractors or other like Liens arising in the ordinary course of business which
secure amounts not overdue for a period of more than 30 days or, if more than 30 days overdue, (i)
no action has been taken to enforce such Lien, (ii) such Lien is 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 or (iii) with respect to
which the failure to make payment as to all such amounts, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect;



     (e) (i) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation and (ii) Liens incurred
in the ordinary course of business securing insurance premiums or reimbursement obligations under
insurance policies;



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     (f) deposits to secure the performance of bids, trade contracts, governmental contracts and
leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs
and appeal bonds, performance bonds, performance and completion guarantees and other obligations of
a like nature (including those to secure health, safety and environmental obligations) incurred in
the ordinary course of business;



     (g) (i) Permitted Encumbrances and (ii) easements, rights-of-way, restrictions, encroachments,
protrusions and other similar encumbrances and minor title defects affecting real property which,
in the aggregate, do not in any case materially and adversely interfere with the ordinary conduct
of the business of the applicable Person;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h);



     (i) Liens arising in connection with the Cash Management Practices, including Liens securing
borrowings from financial institutions and their Affiliates permitted under Section 7.03(m) to the
extent specified in the definition of “Cash Management Practices”;



     (j) (i) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary
course of business which do not (A) interfere in any material respect with the business of the
Borrower or any of its material Restricted Subsidiaries or (B) secure any Indebtedness (other than
any obligation that is Indebtedness solely as a result of the operation of clause (f) of the
definition thereof) and (ii) the rights reserved or vested in any Person by the terms of any lease,
license, franchise, grant or permit held by any Restricted Company or by a statutory provision to
terminate any such lease, license, franchise, grant or permit or to require periodic payments as a
condition to the continuance thereof;



     (k) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business;



     (l) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection, (ii) attaching to commodity trading accounts or other
brokerage accounts incurred in the ordinary course of business, and (iii) in favor of a banking
institution arising as a matter of law encumbering deposits (including the right of set-off) and
which are within the general parameters customary in the banking industry;



     (m) Liens (i) (A) on advances of cash or Cash Equivalents in favor of the seller of any
property to be acquired in an Investment permitted pursuant to Section 7.02(h) to be applied
against the purchase price for such Investment, or (B) consisting of an agreement to Dispose of any
property in a Disposition permitted under Section 7.05 and (ii) on cash earnest money deposits made
by any Restricted Company in connection with any letter of intent or purchase agreement permitted
hereunder;



     (n) Liens on property of any Foreign Subsidiary securing Indebtedness of such Foreign
Subsidiary to the extent permitted under Section 7.03(g);



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     (o) Liens in favor of any Restricted Company securing Indebtedness permitted under Section
7.03(e) or other obligations other than Indebtedness owed by a Restricted Company to another
Restricted Company;



     (p) Liens existing on property at the time of its acquisition or existing on the property of
any Person at the time such Person becomes a Restricted Subsidiary, in each case after the date
hereof (other than Liens on the Equity Interests of any Person that becomes a Subsidiary Guarantor
in accordance with Section 6.12(a)) and any modifications, replacements, refinancings, renewals or
extensions thereof; provided that (i) in the case of Liens securing purchase money Indebtedness or
Capitalized Leases, (A) such Liens attach concurrently with or within 270 days after the
acquisition, repair, replacement, construction or improvement (as applicable) of the property
subject to such Liens and (B) such Lien does not extend to or cover any other assets or property
(other than the proceeds or products thereof and after-acquired property subjected to a Lien
pursuant to terms existing at the time of such acquisition, it being understood that such
requirement to pledge after-acquired property shall not be permitted to apply to any property to
which such requirement would not have applied but for such acquisition); provided that individual
equipment financings otherwise permitted to be secured hereunder provided by one Person (or its
Affiliates) may be cross-collateralized to other such equipment financings provided by such Person
(or its Affiliates), (ii) in the case of Liens securing Indebtedness other than purchase money
Indebtedness or Capitalized Leases, (A) such Liens do not extend to the property of any Person
other than the Person acquired or formed to make such acquisition and the subsidiaries of such
Person and (B) such Lien was not created in contemplation of such acquisition or such Person
becoming a Restricted Subsidiary and (iii) the Indebtedness secured thereby (or, as applicable, any
modifications, replacements, refinancings, renewals or extensions thereof) is permitted under
Section 7.03(h) or Section 7.03(s)(i), as applicable;



     (q) Liens arising from precautionary UCC financing statement filings (or similar filings under
applicable Law) regarding leases entered into by the Borrower or any of its Restricted Subsidiaries
in the ordinary course of business (and Liens consisting of the interests or title of the
respective lessors thereunder);



     (r) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by any Restricted Company in the ordinary course of
business not prohibited by this Agreement;



     (s) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness (other
than Indebtedness described in clause (e) of the definition thereof), (ii) relating to pooled
deposit or sweep accounts of any Restricted Company to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of such Restricted Company and (iii)
relating to purchase orders and other similar agreements entered into in the ordinary course of
business;



     (t) Liens on the assets of a Securitization Vehicle securing Indebtedness under any
Securitization Financing permitted under Section 7.03(r);



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     (u) Liens securing the Specified Non-Recourse Indebtedness permitted under Section 7.03(f) to
the extent specified therein;



     (v) Liens consisting of pledges or deposits of cash or securities made by a Regulated
Subsidiary as a condition to obtaining or maintaining any licenses issued to it by, or to satisfy
the requirements of, any applicable Regulatory Supervising Organization;



     (w) any pledge of the Capital Stock of an Unrestricted Subsidiary to secure
Indebtedness of such Unrestricted Subsidiary, to the extent such pledge constitutes an Investment
permitted under this Agreement; and



     (x) other Liens securing Indebtedness or other obligations outstanding in an aggregate
principal amount not to exceed $50,000,000.



     Without limitation of the foregoing, in no event shall any Restricted Company create, incur,
assume or suffer to exist any Lien upon the Jacksonville Corporate Campus securing any Indebtedness
for borrowed money (other than Liens, if any, that may be provided in the future under the Loan
Documents).



     Section 7.02. Investments. Make or hold any Investments, except:



     (a) Investments by a Restricted Company in assets that were Cash Equivalents when such
Investment was made, and the holding of cash at any time by a Restricted Company;



     (b) loans or advances to directors, officers, members of management, employees and consultants
of a Restricted Company in an aggregate amount not to exceed $10,000,000 at any time outstanding,
for business related travel, entertainment, relocation and analogous ordinary business purposes or
in connection with such Person’s purchase of Equity Interests of the Borrower;



     (c) Investments (i) by any Loan Party in any other Loan Party, (ii) by the Borrower or any of
its Domestic Restricted Subsidiaries in the Borrower or any of its Domestic Restricted
Subsidiaries, (iii) by any Restricted Subsidiary that is not a Loan Party in any Restricted Company
and (iv) by any Loan Party in any Foreign Restricted Subsidiary (including in connection with the
formation, but not the acquisition, of any Foreign Restricted Subsidiary) in an aggregate amount
for all such Investments under this clause (iv) not to exceed, at the time such Investment is made
and after giving effect to such Investment, the sum of (A) $20,000,000 and (B) the aggregate amount
of any cash repayment of or return on such Investments theretofore received by the Loan Parties.



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and other credits to suppliers in the ordinary course of
business;



     (e) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and
Restricted Payments permitted under Section 7.01, 7.03, 7.04, 7.05 and 7.06, respectively;



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     (f) Investments existing or contemplated on the Closing Date and set forth on Schedule 7.02
and any modification, replacement, renewal or extension thereof; provided that the amount of the
original Investment is not increased except by the terms of such Investment or as otherwise
permitted by this Section 7.02;



     (g) promissory notes and other noncash consideration received in connection with Dispositions
permitted by Section 7.05;



     (h) the purchase or other acquisition of all or substantially all of the property and assets
or business of, any Person or of assets constituting a business unit, a line of business or
division of such Person, or of more than 50% of the Equity Interests in a Person that, upon the
consummation thereof, will be owned directly by the Borrower or one or more of its wholly owned
Subsidiaries (including as a result of a merger or consolidation); provided that, with respect to
each purchase or other acquisition made pursuant to this Section 7.02(h) (each, a
“Permitted Acquisition” ):




     (i) each applicable Loan Party and any such newly created or acquired Subsidiary
shall, or will within the times specified therein, have complied with the requirements of
Section 6.12;




     (ii) any Indebtedness incurred in connection with such acquisition by the Borrower or
any Restricted Subsidiary shall be permitted by Section 7.03;




     (iii) (A) immediately before and immediately after giving Pro Forma Effect to any
such purchase or other acquisition, no Event of Default shall have occurred and be
continuing and (B) immediately after giving effect to such purchase or other acquisition,
the Borrower shall be in Pro Forma Compliance with all of the covenants set forth in
Section 7.09, in each case such compliance to be determined on the basis of the financial
information most recently delivered to the Administrative Agent and the Lenders (either
pursuant to Section 6.01(a) or (b) or in any subsequent delivery of financial information
by the Borrower to the Administrative Agent prior to such purchase or other acquisition) as
though such purchase or other acquisition had been consummated as of the first day of the
fiscal period covered thereby and, with respect to each such purchase or other acquisition
having total consideration in excess of $50,000,000, evidenced by a certificate from the
chief financial officer (or other equivalent officer) of the Borrower demonstrating such
compliance calculation in reasonable detail;




     (iv) if the total consideration of such Permitted Acquisition exceeds $50,000,000, the
Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, no
later than five Business Days after the date on which any such purchase or other
acquisition is consummated, a certificate of a Responsible Officer, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this
Section 7.02(h) have been satisfied or will be satisfied on or prior to the
consummation of such purchase or other acquisition;




     (v) such purchase or other acquisition was approved by the board of the directors (or
other applicable governing body) of the Person being acquired; and



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     (vi) in the case of any Permitted Acquisition of an entity that is not organized under
the laws of the United States, any state thereof or the District of Columbia, the total
consideration for all such Permitted Acquisitions shall not exceed $200,000,000 in the
aggregate.



     (i) Investments (including debt obligations and Equity Interests) received in connection with
the bankruptcy or reorganization of any Person and in settlement of obligations of, or other
disputes with, any Person arising in the ordinary course of business and upon foreclosure with
respect to any secured Investment or other transfer of title with respect to any secured
Investment;



     (j) Investments and transfers of funds among the Restricted Companies that are made in
accordance with the Cash Management Practices;



     (k) advances of payroll payments to employees in the ordinary course of business;



     (l) Guarantees by a Restricted Company of leases (other than Capital Lease Obligations)
entered into in the ordinary course of business;



     (m) Investments in the ordinary course consisting of endorsements for collection or deposit;



     (n) Investments by Restricted Companies in Unrestricted Subsidiaries after the Closing Date
(it being understood and agreed that the book value of the assets of an Unrestricted Subsidiary
other than any Securitization Vehicle at the time of its designation as such pursuant to Section
6.14 shall be deemed to be an Investment made in such Unrestricted Subsidiary in an amount equal to
such book value, but if such Unrestricted Subsidiary is not wholly-owned by the Restricted
Companies, only an amount proportional to such Restricted Companies’ ownership therein shall be
included in this calculation) in an aggregate amount for all such Investments (less an amount equal
to the book value of all Unrestricted Subsidiaries other than any Securitization Vehicle that,
after the Closing Date, are redesignated by the Borrower to be Restricted Subsidiaries, calculated
as of the date of such redesignation) not to exceed for all Unrestricted Subsidiaries (other than
Securitization Vehicles), at the time such Investment is made and after giving effect to such
Investment, the sum of (i) $50,000,000 plus (ii) the aggregate amount of any cash repayment of or
return on such Investments theretofore received by Restricted Companies after the Closing Date;



     (o) Investments consisting of Swap Contracts entered into in the ordinary course of business
and not for speculative purposes;



     (p) Investments of funds held by the Like-Kind-Exchange Companies for the benefit of their
customers in connection with their like-kind-exchange operations;



     (q) any Investment in a Securitization Vehicle or any Investment by a Securitization Vehicle
in any other Person in connection with a Securitization Financing
permitted by Section 7.03(r), including Investments of funds held in accounts permitted or
required by the arrangements governing the Securitization Financing or any related Indebtedness;
provided that



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any Investment in a Securitization Vehicle is in the form of a purchase money note, contribution of
additional Securitization Assets or equity investments;




     (r) so long as immediately after giving effect to any such Investment, no Event of Default has
occurred and is continuing, other Investments in an aggregate amount for all such Investments
(calculated using the actual amount of such Investments as funded by the Restricted Companies) not
to exceed at any time the sum of (i) $100,000,000 and (ii) the aggregate amount of any cash
repayment of or return on such Investments theretofore received by the Restricted Companies;



     (s) so long as no Default has occurred and is continuing, Investments out of the Available
Amount; and



     (t) Investments made in connection with the Spin-Off pursuant to the terms of the Distribution
Agreement or any other document related to the Spin-Off.



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



     (a) Permitted Subordinated Indebtedness;



     (b) Indebtedness of the Loan Parties under the Loan Documents (and, until the Spin-Off occurs,
Indebtedness pursuant to the Existing FNIS Credit Agreement);



     (c) (i) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03 and any
Permitted Refinancing thereof and (ii) Indebtedness in respect of the Senior Notes and any
Permitted Refinancing thereof;



     (d) Guarantees by a Restricted Company in respect of Indebtedness of another Restricted
Company otherwise permitted hereunder; provided that (x) no Guarantee by any Restricted Subsidiary
of any Senior Note or any Permitted Subordinated Indebtedness (or any Permitted Refinancing
thereof) shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee
of the Obligations substantially on the terms set forth in the Subsidiary Guarantee in accordance
with Section 6.12 and (y) if the Indebtedness being Guaranteed is subordinated to the Obligations,
such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as
favorable to the Lenders as those contained in the subordination of such Indebtedness;



     (e) Indebtedness of a Restricted Company that constitutes an Investment permitted by Section
7.02; provided that all such Indebtedness of any Loan Party to any Subsidiary that is not a Loan
Party must be expressly subordinated to the Obligations of such Loan Party, it being understood
that such Loan Party may make payments thereon unless an Event of Default has occurred and is
continuing;



     (f) Indebtedness incurred in the ordinary course of business by the Like-Kind-Exchange
Companies in connection with “1031 exchange” transactions under Section 1031 of the Code (or
regulations promulgated thereunder, including Revenue Procedure 2000-37) that is



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limited in recourse to the properties (real or personal) which are the subject of such “1031
exchange” transactions (collectively, the “Specified Non-Recourse Indebtedness” );




     (g) subject to the Specified Debt Test, Indebtedness of Foreign Restricted Subsidiaries of the
Borrower;



     (h) subject to the Specified Debt Test, Indebtedness of a Restricted Company assumed in
connection with any Permitted Acquisition and not incurred in contemplation thereof, and any
Permitted Refinancing thereof;



     (i) Indebtedness incurred by any Restricted Company representing deferred compensation to
employees of a Restricted Company incurred in the ordinary course of business;



     (j) Indebtedness consisting of promissory notes issued by any Restricted Company to future,
present or former directors, officers, members of management, employees or consultants of the
Borrower or any of its Subsidiaries or their respective estates, heirs, family members, spouses or
former spouses to finance the purchase or redemption of Equity Interests of the Borrower permitted
by Section 7.06(c);



     (k) Indebtedness incurred by a Restricted Company in a Permitted Acquisition or Disposition
constituting indemnification obligations or obligations in respect of purchase price or other
similar adjustments;



     (l) Indebtedness consisting of obligations of any Restricted Company under deferred
compensation or other similar arrangements incurred by such Person in connection with Permitted
Acquisitions;



     (m) Indebtedness (including intercompany Indebtedness among the Restricted Companies) in
respect of the Cash Management Practices;



     (n) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay
obligations of a Restricted Company contained in supply arrangements, in each case, in the ordinary
course of business;



     (o) obligations in respect of bid, performance, stay, customs, appeal and surety bonds and
performance and completion guarantees provided by a Restricted Company, in each case in the
ordinary course of business or consistent with past practice;



     (p) Guarantees by the Borrower of Indebtedness permitted under this Section 7.03;



     (q) Indebtedness in respect of Swap Contracts entered into in the ordinary course of business
and not for speculative purposes;



     (r) Indebtedness incurred in connection with a receivables securitization transaction
involving the Restricted Companies and a Securitization Vehicle (a
“Securitization Financing” ); provided that (i) the Net Cash Proceeds of such Indebtedness are
applied to prepay the Term Loans pursuant to Section 2.05(b), (ii) such Indebtedness when incurred
shall not exceed 100% of the cost or fair market value, whichever is lower, of the property being
acquired



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on the date of acquisition, (iii) such Indebtedness is created and any Lien attaches to such
property concurrently with or within forty-five (45) days of the acquisition thereof, and (iv) such
Lien does not at any time encumber any property other than the property financed by such
Indebtedness;




     (s) (i) Attributable Indebtedness and purchase money obligations (including obligations in
respect of mortgage, industrial revenue bond, industrial development bond and similar financings),
in each case of the Borrower or a Restricted Subsidiary to finance the purchase, repair or
improvement of fixed or capital assets within the limitations set forth in Section 7.01(p) and any
Permitted Refinancing thereof, provided that the aggregate principal amount of all such
Indebtedness under this clause (i) shall not exceed $35,000,000 at any time outstanding and (ii)
Indebtedness secured by Liens permitted under Sections 7.01(e)(ii), 7.01(f) or 7.01(r);



     (t) subject to the Specified Debt Test, other Indebtedness of Restricted Companies in an
aggregate principal amount at any time outstanding not to exceed the greater of $350,000,000 and
15% of Consolidated Shareholders’ Equity; and



     (u) all premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in clauses (a) through (t)
above;


provided that at the time of incurrence or assumption of any Specified Debt described below, after
giving effect to such Specified Debt, the aggregate principal amount of all Specified Debt shall
not exceed the greater of $350,000,000 and 15% of Consolidated Shareholders’ Equity (the test set
forth in this proviso is referred to herein as the “Specified Debt Test”). For purposes hereof,
“Specified Debt” means, without duplication, (A) any Indebtedness of a Restricted Company that is
permitted to exist in reliance on any of Section 7.03(g),
Section 7.03(h) or Section 7.03(t) (the “Included Debt”) and (B) any Guarantee of Included Debt permitted by this Section 7.03.




     Section 7.04. Fundamental Changes.



     (a) The Borrower will not, nor will it permit any Restricted Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing: (i) any Person may merge into the
Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Restricted
Subsidiary may merge into any Person in order to consummate an investment or asset disposition
permitted by Section 7.02 or Section 7.05, (iii) any Restricted Subsidiary may merge into the
Borrower or any other Restricted Subsidiary; provided that when any Restricted Subsidiary that is a
Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or
surviving Person and (iv) any Restricted Subsidiary may liquidate or dissolve (other than in
connection with a merger or a consolidation which shall be governed by the other clauses
of this Section 7.04(a)) if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower.



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     (b) The Borrower will not, nor will it permit any Restricted Subsidiary to, engage to any
material extent in any business other than any of the businesses in which the Borrower and its
Restricted Subsidiaries are engaged on the Closing Date, and any business reasonably related,
incidental, complementary or ancillary thereto or extensions, expansions or developments thereof.



     Section 7.05. Dispositions. Make any Disposition of any of its property except:



     (a) Dispositions of obsolete, used, surplus or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business and Dispositions of property no longer used
or useful in the conduct of the business of the Restricted Companies;



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



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



     (d) Dispositions of property by a Restricted Company to another Restricted Company; provided
that if the transferor of such property is a Loan Party (x) the transferee thereof must either be a
Loan Party or a Domestic Restricted Company or (y) to the extent such transaction constitutes an
Investment in a Foreign Restricted Subsidiary, such transaction is permitted by Section 7.02(c);



     (e) Dispositions permitted by Section 7.02, Section 7.04 (so long as any Disposition pursuant
to a liquidation permitted pursuant to Section 7.04 shall be done on a pro rata basis among the
equity holders of the applicable Subsidiary) and Section 7.06 and Liens permitted by Section 7.01;



     (f) Dispositions by any Restricted Company of property pursuant to sale-leaseback
transactions; provided that (i) if such property so Disposed of constitutes Collateral as of the
Closing Date, the fair market value in excess of $25,000,000 of all such property Disposed of from
and after the Closing Date shall be applied to prepay the Term Loans pursuant to Section 2.05(b),
(ii) if any such sale and leaseback transaction is entered into after the Closing Date to finance
the purchase, repair or improvement of fixed or capital assets, the resulting Capital Lease
Obligation is permitted by Section 7.03 and any Lien made the subject of such Capital Lease
Obligation is permitted by Section 7.01 and (iii) the purchase price for such property shall be
paid to such Restricted Company for not less than 75% cash consideration;



     (g) (i) Dispositions of cash and Cash Equivalents and (ii) Dispositions pursuant to and in
accordance with the Cash Management Practices;



     (h) Dispositions of accounts receivable in connection with the collection or compromise
thereof;



     (i) leases, subleases, licenses or sublicenses of property in the ordinary course of business
and which do not materially interfere with the business of the Restricted Companies;



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     (j) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of
such Casualty Event;



     (k) Dispositions in the ordinary course of business consisting of the abandonment of IP Rights
which, in the reasonable good faith determination of the Borrower, are not material to the conduct
of the business of the Restricted Companies;



     (l) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant
to buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements
and similar binding arrangements (i) in substantially the form as such arrangements are in effect
on the Closing Date or (ii) to the extent that the Net Cash Proceeds of such Disposition are either
reinvested or applied to prepay the Term Loans pursuant to Section 2.05(b);



     (m) Dispositions of property to an Unrestricted Subsidiary; provided that to the extent
constituting an Investment, such Investment must be an Investment permitted by Section 7.02(n);



     (n) Dispositions of real property and related assets in the ordinary course of business in
connection with relocation activities for directors, officers, members of management, employees or
consultants of the Restricted Companies;



     (o) Dispositions of tangible property in the ordinary course of business as part of a
like-kind exchange under Section 1031 of the Code;



     (p) voluntary terminations of Swap Contracts;



     (q) Dispositions of Unrestricted Subsidiaries;



     (r) Dispositions of Securitization Assets (or a fractional undivided interest therein) in a
Securitization Financing permitted under Section 7.03(r);



     (s) Any “fee in lieu” or other disposition of assets to any Governmental Authority that continue
in use by the Borrower or any Restricted Subsidiary, so long as the Borrower or any Restricted
Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee; and



     (t) Dispositions of property by a Restricted Company not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Event of Default shall exist or
would result from such Disposition, (ii) the aggregate book value of all property Disposed of in
reliance on this clause (t) in any fiscal year shall not exceed the greater of (A) 15% of Total
Consolidated Assets and (B) $300,000,000 and (iii) with respect to each Disposition (or any series
of related Dispositions made at substantially the same time) where the consideration to be paid to
such Restricted Company for such Disposition exceeds $25,000,000, at least 75% of such
consideration in excess of $25,000,000 must be cash consideration.



     Section 7.06. Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, except:



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     (a) each Restricted Subsidiary may make Restricted Payments ratably with respect to its Equity
Interests;



     (b) the Borrower may declare and make dividend payments or other distributions payable solely
in the Equity Interests (other than Disqualified Equity Interests) of such Person;



     (c) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for
value of Equity Interests of the Borrower held by any future, present or former director, officer,
member of management, employee or consultant of the Borrower or any of its Subsidiaries (or the
estate, heirs, family members, spouse or former spouse of any of the foregoing); provided that the
aggregate amount of Restricted Payments made under this clause (c) does not exceed in any calendar
year $5,000,000;



     (d) to the extent constituting Restricted Payments permitted by other clauses of this Section
7.06, the Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted
by Section 7.04 , 7.05(e) and 7.07;



     (e) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants
if such Equity Interests represent a portion of the exercise price of such options or warrants;



     (f) the Borrower may make cash payments in lieu of issuing fractional shares in connection
with the exercise of warrants, options or other securities convertible into or exchangeable for
Equity Interests of the Borrower and its Restricted Companies;



     (g) the Borrower may redeem, repurchase or otherwise acquire Qualified Equity Interests with
the proceeds of a substantially contemporaneous offering of Qualified Equity Interests of the
Borrower;



     (h) the Borrower may make Restricted Payments in an aggregate amount not to exceed the
Available Amount; provided that (i) on a Pro Forma Basis the Leverage Ratio as of the Borrower’s
most recently ended full fiscal quarter for which financial statements have been delivered pursuant
to paragraph (a) or (b) of Section 6.01 would not exceed the Applicable Leverage Ratio, (ii) the
Borrower would be in compliance on a Pro Forma Basis with the covenant set forth in Section 7.09(b)
as of the most recent test date for which financial statements have been delivered pursuant to
paragraph (a) or (b) of Section 6.01, (iii) at the time of any such payment, no Event of Default
shall have occurred and be continuing or would result therefrom, and (iv) for Restricted Payments
in excess of $5,000,000 made in any calendar month pursuant to this Section, the Borrower has
delivered to the Administrative Agent a certificate of a Responsible Officer, together with all
relevant financial information reasonably requested by the Administrative Agent, demonstrating the
calculation of such Available Amount;



     (i) so long as no Default has occurred and is continuing or would result therefrom, the
Borrower may make Restricted Payments in an aggregate amount not to exceed
$40,000,000 in any calendar year; provided that the Borrower would be in compliance on a Pro
Forma Basis with the covenants set forth in Section 7.09 (a) and (b) as of the most recent test
date for which financial statements have been delivered pursuant to paragraph (a) or (b) of Section
6.01.



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     (j) the Borrower may make additional Restricted Payments in an aggregate amount (when
aggregated with the amount expended pursuant to Section 7.10(d)) not to exceed $20,000,000 during
the term of this Agreement; provided that (i) the Borrower would be in compliance on a Pro Forma
Basis with the covenants set forth in Section 7.09 (a) and (b) as of the most recent test date for
which financial statements have been delivered pursuant to paragraph (a) or (b) of Section 6.01,
(ii) any such Restricted Payment made under this Section 7.06(j) will reduce the Available Amount
by the amount of such Restricted Payment, and (iii) at the time of any such payment, no Event of
Default shall have occurred and be continuing or would result therefrom.



     Section 7.07. Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Borrower, whether or not in the ordinary course of business, other than (a)
transactions among the Restricted Companies, (b) transactions on fair and reasonable terms
substantially as favorable to a Restricted Company as would be obtainable by such Restricted
Company at the time in a comparable arm’s-length transaction with a Person other than an Affiliate,
(c) the payment of fees and expenses in connection with the consummation of the Transaction, (d)
loans and other transactions by the Borrower and its Restricted Subsidiaries to the extent
permitted under this Article 7, (e) customary fees payable to any directors of the Borrower and
reimbursement of reasonable out of pocket costs of the directors of the Borrower, (f) employment
and severance arrangements between any Restricted Company and their officers and employees in the
ordinary course of business, (g) payments by any Restricted Company pursuant to the tax sharing
agreements among the Borrower and its Subsidiaries on customary terms, (h) the payment of customary
fees and indemnities to directors, officers and employees of the Borrower and its Subsidiaries in
the ordinary course of business, (i) transactions pursuant to agreements in existence on the
Closing Date and set forth on Schedule 7.07 or any amendment thereto to the extent such an
amendment is not adverse to the Lenders in any material respect, (j) Restricted Payments permitted
under Section 7.06, (k) any transaction with a Securitization Vehicle as part of a Securitization
Financing permitted under Section 7.03(r), and (l) transactions engaged in by Restricted Companies
with Unrestricted Subsidiaries in good faith to effect (i) the operations, governance,
administration and corporate overhead of the Consolidated Companies and (ii) the tax management of
the Consolidated Companies. For the purposes of this Section 7.07, each Unrestricted Subsidiary
shall be deemed to be an Affiliate of each Restricted Company.



     Section 7.08. Burdensome Agreements. Enter into or permit to exist any Contractual Obligation
(other than this Agreement, any other Loan Document, the Senior Notes Documents or, until the
Spin-Off occurs, the Existing FNIS Credit Agreement and related loan documents) that limits the
ability of (a) any Restricted Subsidiary to make Restricted Payments to any Loan Party or to
otherwise transfer property to or invest in any Loan Party or (b) any Loan Party to create, incur,
assume or suffer to exist Liens on property of such Person for the benefit of the Agents and the
Lenders with respect to the credit facilities established hereunder and the Obligations under the
Loan Documents; provided that the foregoing shall not apply to Contractual Obligations which (i)
(x) exist
on the Closing Date and (to the extent not otherwise permitted by this Section 7.08) are
listed on Schedule 7.08 hereto and (y) to the extent Contractual Obligations permitted by clause
(x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement
evidencing any permitted renewal, extension or




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refinancing of such Indebtedness so long as such renewal, extension or refinancing does not expand
the scope of such restrictions that are contained in such Contractual Obligation, (ii) are binding
on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted
Subsidiary, so long as such Contractual Obligations were not entered into solely in contemplation
of such Person becoming a Restricted Subsidiary, (iii) arise in connection with any Disposition
permitted by Section 7.05, (iv) are customary provisions in joint venture agreements and other
similar agreements applicable to Joint Ventures permitted under Section 7.02 and applicable solely
to such Joint Venture entered into in the ordinary course of business, (v) are negative pledges and
restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but
solely to the extent any negative pledge relates to the property financed by such Indebtedness (or
proceeds of such financed property) or the subject of such Indebtedness or expressly permits Liens
for the benefit of the Agents and the Lenders with respect to the credit facilities established
hereunder and the Obligations under the Loan Documents on a senior basis and without a requirement
that such holders of such Indebtedness be secured by such Liens equally and ratably or on a junior
basis, (vi) are customary restrictions on leases, subleases, licenses or asset sale agreements
otherwise permitted hereby so long as such restrictions may relate to the assets subject thereto,
(vii) are customary provisions restricting subletting or assignment of any lease governing a
leasehold interest, (viii) are customary provisions restricting assignment or transfer of any
agreement entered into in the ordinary course of business, or (ix) exist under or by reason of
applicable law, rule, regulation or order, or required by any regulatory authority having
jurisdiction over the Borrower or any Restricted Subsidiary or any of their respective businesses.




     Section 7.09. Financial Covenants. (a) Maximum Leverage Ratio. Permit the Leverage Ratio as of
the end of any fiscal quarter of the Borrower (beginning with the fiscal quarter ending September
30, 2008) set forth below to be greater than the ratio set forth below opposite the applicable
period ending date:



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	Period Ending Date	 	Leverage Ratio
	September 30, 2008

	 	3.75:1.00
	December 31, 2008 through June 30, 2009

	 	3.50:1.00
	September 30, 2009 through December 31, 2009

	 	3.25:1.00
	March 31, 2010 through June 30, 2010

	 	3.00:1.00
	September 30, 2010 through December 31, 2010

	 	2.75:1.00
	March 31, 2011 through December 31, 2011

	 	2.50:1.00
	March 31, 2012 and thereafter

	 	2.25:1.00






     (b) Minimum Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the end of any
fiscal quarter of the Borrower (beginning with the fiscal quarter ending September 30, 2008) set
forth below to be less than the ratio set forth below opposite the applicable period ending date:



	 	 	 
	Period Ending Date	 	Interest Coverage Ratio
	September 30, 2008 through December 31, 2008

	 	4.00:1.00
	March 31, 2009 through June 30, 2009

	 	4.25:1.00
	September 30 2009 through December 31, 2009

	 	4.50:1.00
	March 31, 2010 through June 30, 2010

	 	4.75:1.00
	September 30, 2010 through December 31, 2010

	 	5.00:1.00
	March 31, 2011 and thereafter

	 	5.25:1.00






     Section 7.10. Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that
payments of regularly scheduled interest shall be permitted) any Senior Notes (or any Permitted
Senior Indebtedness that is a Permitted Refinancing thereof) or any Permitted Subordinated
Indebtedness or make any payment in violation of any subordination terms of any Permitted
Subordinated Indebtedness (collectively, “Restricted Prepayments” ), except:



     (a) the refinancing thereof with the Net Cash Proceeds of (i) in the case of
Permitted Subordinated Indebtedness, any issuance of Qualified Equity Interests or
other Permitted Subordinated Indebtedness, and (ii) in the case of the Senior Notes (or
any Permitted Senior Indebtedness that is a Permitted Refinancing thereof), any
issuance of Qualified Equity Interests, Permitted Subordinated Indebtedness or other
Permitted Senior Indebtedness;



     (b) the conversion of any Permitted Subordinated Indebtedness or any Senior Notes (or any
Permitted Senior Indebtedness that is a Permitted Refinancing thereof) to Qualified Equity
Interests;



     (c) Restricted Prepayments out of the Available Amount, provided that (i) on a Pro Forma Basis
the Leverage Ratio for the Borrower’s most recently ended four full fiscal quarters for which
financial statements have been delivered pursuant to paragraph (a) or (b) of Section 6.01 would be
less than the Applicable Leverage Ratio, (ii) the Borrower would be in compliance on a Pro Forma
Basis with the covenant set forth in Section 7.09(b) as of the most recent test date for which
financial statements have been delivered pursuant to paragraph (a) or (b) of Section 6.01, (iii) at
the time of any such payment, no Event of Default shall have occurred



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and be continuing or would result therefrom and (iv) the Borrower has delivered to the
Administrative Agent a certificate of a Financial Officer, together with all relevant financial
information reasonably requested by the Administrative Agent, demonstrating the calculation of such
Available Amount; and




     (d) the Borrower may make additional Restricted Prepayments in an aggregate amount (when
aggregated with the amount expended pursuant to Section 7.06(j)) not to
exceed $20,000,000 during the term of this Agreement; provided that (i) the Borrower would be
in compliance on a Pro Forma Basis with the covenants set forth in Section 7.09 (a) and (b) as of
the most recent test date for which financial statements have been delivered pursuant to paragraph
(a) or (b) of Section 6.01, (ii) any such Restricted Prepayment made under this Section 7.10(d)
will reduce the Available Amount by the amount of such Restricted Prepayment, and (iii) at the time
of any such payment, no Event of Default shall have occurred and be continuing or would result
therefrom.



ARTICLE 8


Events of Default and Remedies




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



     (a) Non-Payment. Any Restricted Company fails to pay (i) when due, any amount of principal of
any Loan, or (ii) within five Business Days after the same becomes due, any interest on any Loan or
any other amount payable hereunder or with respect to any other Loan Document; or



     (b) Specific Covenants. Any Restricted Company fails to perform or observe any term, covenant
or agreement contained in any of Section 6.03(a), 6.05(a) (solely with respect to the Borrower) or
Article 7; or



     (c) Other Defaults. Any Restricted Company fails to perform or observe any other term,
covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days after
notice thereof by the Administrative Agent to the Borrower; or



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



     (e) Cross-Default. Any Material Company (i) fails to make any payment after the applicable
grace period with respect thereto, if any, (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness
hereunder and Indebtedness owed by one Restricted Company to another Restricted Company) having an
aggregate outstanding principal amount of not less than the



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Threshold Amount or (ii) fails to observe or perform any other agreement or condition relating to
any such Indebtedness, 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 a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, (x) such Indebtedness to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or (y) a mandatory offer
to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity; provided that this clause (e)(ii) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for
such Indebtedness; or



     (f) Insolvency Proceedings, Etc. Any Material Company 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, administrator, administrative receiver or similar officer
for it or for all or any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer
is appointed without the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order
for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) Any Material Company 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 Material Company in an amount exceeding the Threshold Amount
and is not paid, released, vacated or fully bonded within 60 days after its issue or levy; or



     (h) Judgments. There is entered against any Material Company a final judgment or order for
the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer has been notified of such
judgment or order and does not deny coverage) and there is a period of 60 consecutive days during
which such judgment has not been paid and during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or



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



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



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     (k) Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section
4.01 or Section 6.12 shall for any reason (other than pursuant to the terms thereof including as a
result of a transaction permitted under Section 7.04 or Section 7.05) cease to create a valid and
perfected first priority Lien on and security interest in any material portion of the Collateral,
subject to Liens permitted under Section 7.01, or any Loan Party shall assert in writing such
invalidity or lack of perfection or priority (other than in an informational notice delivered to
the Administrative Agent), except to the extent that any such loss of perfection or priority
results from the failure of the Administrative Agent to maintain possession of certificates or
other possessory collateral actually delivered to it representing securities or other collateral
pledged under the Collateral Documents or to file Uniform Commercial Code financing statements,
continuation statements, filings regarding IP Rights, or equivalent filings and except, as to
Collateral consisting of Material Real Property to the extent that such losses are covered by a
lender’s title insurance policy insured by a solvent insurer and such insurer has not denied or
disclaimed in writing that such losses are covered by such title insurance policy; or



     (l) Subsidiary Guaranty. Any Guarantee purported to be created under any Loan Document shall
cease to be, or shall be asserted by any Loan Party not to be, in full force and effect, except
upon the consummation of any transaction permitted by this Agreement as a result of which the
Subsidiary Guarantor providing such Guarantee ceases to be a Subsidiary or upon the termination of
such Guarantee in accordance with its terms.



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



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



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



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



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


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




104









 








     Section 8.03. Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Secured 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 Attorney Costs payable under Section 10.04 and
amounts payable under Article 3 but excluding principal of, and interest on, any Loan)
payable to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including
Attorney Costs payable under Section 10.05 and amounts payable under Article 3), ratably
among them in proportion to the amounts described in this clause Second payable to them;




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




     Fourth, to payment of (i) that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, (ii) Secured Hedging Obligations and (iii)
Secured Cash Management Obligations, ratably among the Lenders and/or other holders thereof
in proportion to the respective amounts described in this clause Fourth held by them;




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




     Sixth, to the payment of all other Obligations of the Loan Parties that are due and
payable to the Administrative Agent and the other Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the other Secured Parties on such date; and




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


Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above and, if no Obligations remain
outstanding, delivered to the Borrower.




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ARTICLE 9


Administrative Agent and Other Agents




     Section 9.01. Appointment and Authorization of Agents. (a) Each Lender hereby irrevocably
appoints, designates and authorizes the Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall have no duties or responsibilities, except those expressly set forth
herein or therein, nor shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any
Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative relationship between
independent contracting parties.



     (b) Each 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 each L/C Issuer shall have all of the
benefits and immunities (i) provided to the Agents in this Article 9 with respect to any acts taken
or omissions suffered by each L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and the applications and agreements for letters of credit pertaining to
such Letters of Credit as fully as if the term “Agent” as used in this Article 9 and in the
definition of “Agent-Related Person” included such L/C Issuer with respect to such acts or omissions,
and (ii) as additionally provided herein with respect to such L/C Issuer.



     (c) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents,
and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), L/C
Issuer (if applicable) and a potential Secured Hedge Bank) hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of (and
to hold any security interest created by the Collateral Documents for and on behalf of or on
trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together
with such powers and discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent, as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.02 for purposes of holding or enforcing
any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall
be entitled to the benefits of all provisions of this Article 9 (including Section 9.07, as though
such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan
Documents) as if set forth in full herein with respect thereto.



     Section 9.02. Delegation of Duties. The Administrative Agent may execute any of its duties
under this Agreement or any other Loan Document (including for purposes of holding or



106









 




enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents or of exercising any rights and remedies thereunder) by or through agents, employees or
attorneys-in-fact, such sub-agents as shall be deemed necessary by the Administrative Agent and
shall be entitled to advice of counsel and other consultants or experts concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.




     Section 9.03. Liability of Agents. No Agent-Related Person shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement, representation or warranty
made by any Loan Party or any of their Subsidiaries or any officer thereof, contained herein or in
any other Loan Document, or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any
Lien or security interest created or purported to be created under the Collateral Documents, or for
any failure of any Restricted Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any
Lender or participant to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party or any of their Subsidiaries or any Affiliate
thereof.



     Section 9.04. Reliance by Agents. (a) Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any
Loan Party or any of their Subsidiaries), independent accountants and other experts selected by
such Agent. Each Agent shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.



     (b) For purposes of determining compliance with the conditions specified in Section 4.01, each
Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the



107









 





Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.




     Section 9.05. Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received written notice from a
Lender or a Loan Party referring to this Agreement, describing such Default and stating that such
notice is a “notice of default.” The Administrative Agent will notify the Lenders of its receipt of
any such notice. The Administrative Agent shall take such action with respect to any Event of
Default as may be directed by the Required Lenders in accordance with Article 8; provided that
unless and until the Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking such action, with
respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.



     Section 9.06. Credit Decision; Disclosure of Information by Agents. Each Lender acknowledges
that no Agent-Related Person has made any representation or warranty to it, and that no act by any
Agent hereafter taken, including any consent to and acceptance of any assignment or review of the
affairs of any Loan Party or any of their Subsidiaries thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons
have disclosed material information in their possession. Each Lender represents to each Agent
that it has, independently and without reliance upon any Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its own appraisal of and investigation
into the business, prospects, operations, property, financial and other condition and
creditworthiness of each Loan Party, and all applicable bank or other regulatory Laws relating to
the transactions contemplated hereby, and made its own decision to enter into this Agreement and to
extend credit hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of each Loan Party or any of their
Subsidiaries. Except for notices, reports and other documents expressly required to be furnished to
the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any Loan Party or any of their
Subsidiaries which may come into the possession of any Agent-Related Person.



     Section 9.07. Indemnification of Agents. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan
Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to
any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such
Agent-Related Person’s own gross negligence or willful



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misconduct; provided that no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section
9.07; provided further that to the extent an L/C Issuer is entitled to indemnification under this
Section 9.07 solely in connection with its role as an L/C Issuer, only the Revolving Credit Lenders
shall be required to indemnify such L/C Issuer in accordance with this Section 9.07. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this
Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses
by or on behalf of the Borrower. The undertaking in this Section 9.07 shall survive termination of
the
Aggregate Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.




     Section 9.08. Agents in their Individual Capacities. JPMCB and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in
and generally engage in any kind of banking, trust, financial advisory, underwriting or other
business with each Loan Party or any of their Subsidiaries as though JPMCB were not the
Administrative Agent or the L/C Issuer hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, JPMCB or its Affiliates may receive
information regarding any Loan Party or any of their Subsidiaries (including information that may
be subject to confidentiality obligations in favor of such Loan Party or any of their Subsidiaries)
and acknowledge that the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, JPMCB shall have the same rights and powers under
this Agreement as any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or the L/C Issuer, and the terms “Lender” and “Lenders” include JPMCB in its
individual capacity.



     Section 9.09. Successor Agents. The Administrative Agent may resign as the
Administrative Agent upon 30 days’ notice to the Lenders and the Borrower. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the
Borrower at all times other than during the existence of an Event of Default under Section 8.01(f)
(which consent of the Borrower shall not be unreasonably withheld or delayed). If no successor
agent is appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the Borrower, a successor
agent from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder,
the Person acting as such successor agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term “Administrative Agent”, shall mean such successor
administrative agent and/or supplemental administrative agent, as the case may be, and the retiring
Administrative Agent’s appointment, powers and duties as the Administrative Agent shall be
terminated. After the retiring



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Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this
Article 9 and Section 10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Administrative Agent under this Agreement. If no successor agent
has accepted appointment as the Administrative Agent by the date which is 30 days following the
retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s
resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above; provided that in the case of any Collateral held
by the Administrative Agent on behalf of the Lenders or an L/C Issuer under any of the Loan
Documents, the retiring Administrative Agent shall continue to hold such Collateral until
such time as a successor Administrative Agent is appointed. Upon the acceptance of any appointment
as the Administrative Agent hereunder by a successor and upon the execution and filing or recording
of such financing statements, or amendments thereto, and such amendments or supplements to the
Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, the Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this
Article 9 shall continue in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as the Administrative Agent.




     Section 9.10. Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise:



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



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for




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the reasonable compensation, expenses, disbursements and advances of the Agents and their
respective agents and counsel, and any other amounts due the Administrative Agent under Section
2.09 and 10.04.




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



     Section 9.11. Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent:



     (a) to release any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all
Secured Obligations (other than (A) Secured Hedging Obligations, (B) Secured Cash Management
Obligations and (C) contingent indemnification obligations not yet accrued and payable) and the
expiration or termination of all Letters of Credit (or provision therefor in full in a manner
reasonably satisfactory to each L/C Issuer), (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document to any Person other
than a Loan Party, (iii) subject to Section 10.01, if approved, authorized or ratified in writing
by the Required Lenders, or (iv) owned by a Subsidiary Guarantor upon release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guaranty pursuant to clause (b) below; and



     (b) to release any Subsidiary Guarantor from its obligations under any Loan Document to which
it is a party if such Person ceases to be a Restricted Subsidiary as a result of a transaction or
designation permitted hereunder; provided that no such release shall occur if such Subsidiary
Guarantor continues to be a guarantor in respect of any Permitted Subordinated Indebtedness unless
and until such Subsidiary Guarantor is (or is being simultaneously) released from its guarantee
with respect to such Permitted Subordinated Indebtedness.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release its interest in particular types or items
of property, or to release any Subsidiary Guarantor from its obligations under the Loan Documents
pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative
Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the Collateral Documents, or to
release such Subsidiary Guarantor from its obligations under the Loan Documents, in each case in
accordance with the terms of the Loan Documents and this Section 9.11.



     Section 9.12. Other Agents; Arrangers and Managers. None of the Lenders or other Persons
identified on the facing page and/or signature pages of this
Agreement as a “syndication agent,”
“documentation agent,” “joint book-running manager,” or “joint lead arranger” shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other



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than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders
or other Persons so identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders
or other Persons so identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.




     Section 9.13. Appointment of Supplemental Administrative Agents. (a) It is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any Law of any
jurisdiction denying or restricting the right of banking corporations or associations to transact
business as agent or trustee in such jurisdiction. It is recognized that in case of litigation
under this Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason
of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or
remedies granted herein or in any of the other Loan Documents or take any other action which may be
desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to
appoint an additional individual or institution selected by the Administrative Agent in its sole
discretion as a separate trustee, co-trustee, administrative agent, collateral agent,
administrative sub-agent or administrative co-agent (any such additional individual or institution
being referred to herein individually as a “Supplemental Administrative Agent” and collectively as
“Supplemental Administrative Agents” ).



     (b) In the event that the Administrative Agent appoints a Supplemental Administrative Agent
with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or
intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or
conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to
enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with
respect to such Collateral and to perform such duties with respect to such Collateral, and every
covenant and obligation contained in the Loan Documents and necessary to the exercise or
performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by
either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions
of this Article 9 and of Section 9.07 (obligating the Borrower to pay the Administrative Agent’s
expenses and to indemnify the Administrative Agent) that refer to the Administrative Agent shall
inure to the benefit of such Supplemental Administrative Agent and all references therein to the
Administrative Agent shall be deemed to be references to the Administrative Agent and/or such
Supplemental Administrative Agent, as the context may require.



     (c) Should any instrument in writing from any Loan Party be required by any
Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and
certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the
Borrower, shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by the Administrative Agent. In case any Supplemental
Administrative Agent, or a successor thereto, shall die,
become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of
such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be
exercised by the Administrative Agent until the appointment of a new Supplemental Administrative
Agent.



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ARTICLE 10


Miscellaneous




     Section 10.01. Amendments, Etc. (a) No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan
Party, as the case may be, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided that:




     (i) no amendment, waiver or consent shall, without the written consent of each Lender
directly affected thereby:




     (A) extend or increase the Commitment of any Lender (it being understood that
a waiver of any condition precedent set forth in Section 4.01 or 4.02 or the
waiver of any Default, Event of Default or mandatory prepayment shall not
constitute an extension or increase of any Commitment of any Lender);




     (B) postpone any date scheduled for any payment of principal or interest
under Section 2.07 or 2.08 or fees under Section 2.03(i) or 2.09(a), it being
understood that the waiver of any mandatory prepayment of the Term Loans shall not
constitute a postponement of any date scheduled for the payment of principal or
interest; or




     (C) reduce or forgive the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (3) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document, it being understood that any change to the
definition of Leverage Ratio or in the component definitions thereof shall not
constitute a reduction in the rate of interest; provided that only the consent of
the Required Lenders shall be necessary to amend the definition of “Default Rate” or
to waive any obligation of the Borrower to pay interest at the Default Rate;




     (ii) no amendment, waiver or consent shall, without the written consent of each
Lender:




     (A) change any provision of this Section 10.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder; or




     (B) release all or substantially all of the Collateral in any transaction or
series of related transactions, or release all or substantially all of the value
of the Subsidiary Guaranty; and




     (iii) no amendment, waiver or consent shall alter the allocation of payments set forth
in Section 2.05(b)(iv) between the Term Loans without the consent of Lenders



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having more than 50% of the outstanding principal amount of each Class of Term Loans
affected thereby, voting as separate Classes;



provided further that:





     (1) no amendment, waiver or consent shall, unless in writing and
signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any
Letter of Credit Application relating to any Letter of Credit issued or
to be issued by it;




     (2) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under this
Agreement;




     (3) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required
above, affect the rights or duties of, or any fees or other amounts
payable to, the Administrative Agent under this Agreement or any other
Loan Document; and




     (4) Section 10.07(i) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of
whose Loans are being funded by an SPC at the time of such amendment,
waiver or other modification.



     (b) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right
to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender (it being
understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded from a vote of the Lenders hereunder requiring any consent of the Lenders).



     (c) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated)
with the written consent of the Required Lenders, the Administrative Agent
and the Borrower (i) to add one or more additional credit facilities to this Agreement and to
permit the extensions of credit from time to time outstanding thereunder and the accrued interest
and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan
Documents with the Term Loans and the Revolving Credit Facility and the accrued interest and fees
in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in
any determination of the Required Lenders.



     (d) Notwithstanding anything to the contrary contained in this Section 10.01, in the event
that the Borrower requests that this Agreement be modified or amended in a manner that would
require the unanimous consent of all of the Lenders and such modification or amendment is agreed to
by the Required Lenders, then with the consent of the Borrower and the Required




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Lenders and subject to Section 10.01(e), the Borrower and the Required Lenders shall be permitted
to amend this Agreement without the consent of the Lender or Lenders that did not agree to the
modification or amendment requested by the Borrower (such Lender or Lenders, collectively the
“Dissenting Lenders”) to provide (subject to the payment of the Obligations to the Dissenting
Lenders as described in clause (iii) below) for (i) the termination of the Commitment of each of
the Dissenting Lenders, (ii) the addition to this Agreement of one or more other financial
institutions (each of which shall be an Eligible Assignee), or an increase in the Commitment of one
or more of the Required Lenders (with the written consent thereof), so that the total Commitment
after giving effect to such amendment shall be in the same amount as the total Commitment
immediately
before giving effect to such amendment, (iii) if any Loans (including, for the avoidance of doubt,
any L/C Advances and Specified Rate Loans made by any Dissenting Lender) are outstanding at the
time of such amendment, the making of such additional Loans by such new financial institutions or
Required Lender or Lenders, as the case may be, as may be necessary to repay in full in cash, at
par, the outstanding Obligations of the Dissenting Lenders immediately before giving effect to such
amendment and (iv) such other modifications to this Agreement as may be appropriate to effect the
foregoing clauses (i), (ii) and (iii).




     (e) Notwithstanding Section 10.01(d), in the event that this Agreement is amended at any time
on or prior to the date that is one year after the Closing Date and such amendment to this
Agreement reduces or, upon the satisfaction of certain conditions, could have the effect of
reducing, the Applicable Margin applicable to the Term B Loans on the Closing Date, the Borrower
agrees to pay to the Adminsitrative Agent for the benefit of each Term B Lender (whether or not
such Term B Lender consents to such amendment) a fee in an amount equal to 1.00% of such
Lender’s Term B Loans outstanding on the effective date of such amendment. Notwithstanding Section
10.01(a), this Section 10.01(e) shall not be waived, amended or modified without the written
consent of each Term B Lender adversely affected thereby.



     Section 10.02. Notices and Other Communications; Facsimile Copies. (a) Generally. Unless
otherwise expressly provided herein, all notices and other communications provided for under any
Loan Document shall be in writing (including by facsimile transmission and, except as otherwise
specifically provided herein, electronic mail). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to Section 10.02(c)) electronic
mail address, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such party in a
notice to the other parties; and




     (ii) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by
such party in a notice to the Borrower, the Administrative Agent, the L/C Issuer and the
Swing Line Lender.



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All such notices and other communications shall be deemed to be given or made upon the earlier of
(x) actual receipt by the relevant party and (y) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party; (B) if delivered by mail, four Business Days
after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail, when delivered; provided that notices and other communications to the
Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to Article 2 shall not be
effective until actually received by such Person. In no event shall a voice mail message be
effective as a notice, communication or confirmation hereunder.




     (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted
and/or signed by facsimile or other electronic means. The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as manually signed
originals and shall be binding on each Loan Party, each Agent and each Lender. The Administrative
Agent may also require that any such documents and signatures be confirmed by a manually signed
original thereof; provided that the failure to request or deliver the same shall not limit the
effectiveness of any facsimile document or signature.



     (c) Electronic Communications. Notices and other communications to the Lenders and the L/C
Issuer hereunder may be delivered or furnished by electronic communication (including electronic
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 2 if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to particular
notices or communications.



     (d) Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be
entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and
each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross
negligence or willful misconduct.



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



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     Section 10.04. Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, syndication and execution of this Agreement and the
other Loan Documents, and any amendment, waiver, consent or other modification of the provisions
hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and thereby, including all
Attorney Costs of a single firm of attorneys acting as counsel to the Administrative Agent, and (b)
to pay or reimburse the Administrative Agent and each Lender for all reasonable out-of-pocket costs
and expenses incurred in connection with the enforcement of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses incurred during any
legal proceeding, including any proceeding under any Debtor Relief Law), including all Attorney
Costs of counsel to the Administrative Agent. The foregoing costs and expenses shall include all
search, filing, recording, title insurance and appraisal charges relevant to the Collateral and
fees and taxes related thereto, and the related reasonable out-of-pocket expenses incurred by any
Agent; provided, however, that for the provision of any title insurance or title searches, the
Borrower shall have the right to select any nationally recognized title insurance company. All
amounts due under this Section 10.04 shall be paid within ten (10) Business Days after receipt by
the Borrower of an invoice in reasonable detail. The agreements in this Section 10.04 shall survive
the termination of the Aggregate Commitments and repayment of all other Obligations. If any Loan
Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under
any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent
or any Lender, in its sole discretion.



     Section 10.05. Indemnification by the Borrower. Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold harmless each Agent, each Lender and
their respective Affiliates, directors, officers, employees, counsel, agents, attorneys-in-fact,
trustees and advisors (collectively the “Indemnitees”) from and against any and all liabilities,
losses, damages, claims and costs (including Attorney Costs, which shall be limited to one counsel
to the Administrative Agent and the Lenders (exclusive of one local counsel to the Administrative
Agent and the Lenders in each relevant jurisdiction), unless (x) the interests of the
Administrative Agent and the Lenders are sufficiently divergent, in which case one additional
counsel may be appointed and (y) if the interests of any Lender or group of Lenders (other than all
of the Lenders) are distinctly or disproportionately affected, one additional counsel for such
Lender or group of Lenders in the case of clause (a) below) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with:



     (a) the execution, delivery, enforcement, performance or administration of any Loan Document,
any Transaction Document or any other agreement, letter or instrument delivered in connection with
the transactions contemplated thereby or the consummation
of the transactions contemplated thereby;



     (b) any Commitment, 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); or



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     (c) any actual or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by any Restricted Company or any of their Subsidiaries, or
any Environmental Liability related in any way to any Restricted Company or any of their
Subsidiaries; or



     (d) any actual or prospective claim, litigation, investigation or proceeding relating to any
of the foregoing, whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto;


(all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not
caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities,
losses, damages, claims and costs (x) have resulted from the gross negligence or willful misconduct
of such Indemnitee or breach of the Loan Documents by such Indemnitee as determined by the final
non-appealable judgment of a court of competent jurisdiction or (y) arise from claims of any of the
Lenders solely against one or more Lenders that have not resulted from any misrepresentation,
default or the breach of any Loan Document or any actual or alleged performance or non-performance
by the Borrower or one of its Subsidiaries or other Affiliates or any of their respective officers,
directors, stockholders, partners, members, employees, agents, representatives or advisors. No
Indemnitee shall be liable for any damages arising from the use by others of any information or
other materials obtained through SyndTrak or other similar information transmission systems in
connection with this Agreement, except to the extent resulting from the willful misconduct or gross
negligence of such Indemnitee as determined by the final non-appealable judgment of a court of
competent jurisdiction, nor shall any Indemnitee or any Loan Party have any liability for any
special, punitive, indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith (whether before or
after the Closing Date). In the case of an investigation, litigation or other proceeding to which
the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders
or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a
party thereto and whether or not any of the transactions contemplated hereunder or under any of the
other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid
promptly after receipt by the Borrower of an invoice in reasonable detail. The agreements in this
Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge
of all the other Obligations.




     Section 10.06. Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law
or otherwise, then:



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     (a) to the extent of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such payment had not been
made or such setoff had not occurred, and



     (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the applicable Federal
Funds Rate from time to time in effect.



     Section 10.07. Assigns. (a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns permitted hereby.
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in Section 10.07(f) and, to the extent expressly contemplated
hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



     (b) Notwithstanding Section 10.07(a), the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each Lender.



     (c) Notwithstanding Section 10.07(a), no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of Section 10.07(d), (ii) by way of participation in accordance with the provisions of
Section 10.07(f), (iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 10.07(h) and Section 10.07(j) or (iv) to an SPC in accordance with the
provisions of Section 10.07(i) (and any other attempted assignment or transfer by any party hereto
shall be null and void).



     (d) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement; provided that




     (i) except in the case of an assignment of the entire remaining amount of
the assigning Lender’s Commitment and the Loans at the time owing to it or, in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the outstanding
principal balance of the Loan 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 such Trade Date, shall not be less than $5,000,000, in the case of any
assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any
assignment in respect of any Term Loans, unless each of the Administrative Agent and, so
long as no Event of Default in respect of Section 8.01(a) or (f) has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed);



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




     (iii) any assignment of a Term Loan or a Revolving Credit Commitment to an Eligible
Assignee must be approved, if applicable, by the Persons specified for such assignment in
the definition of Eligible Assignee;




     (iv) the parties (other than the Borrower unless its consent to such assignment is
required hereunder) to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500; provided that the Borrower shall have no obligation to pay such fee except as
required in Section 3.09; and




     (v) the assigning Lender shall deliver any Notes evidencing such Loans to the Borrower
or the Administrative Agent (and the Administrative Agent shall deliver such Notes to the
Borrower). Subject to acceptance and recording thereof by the
Administrative Agent pursuant to Section 10.07(e), from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Section 3.01, 3.04, 3.05, 3.07, 10.04 and 10.05 with respect to
facts and circumstances occurring prior to the effective date of such assignment). Upon
request, and the surrender by the assigning Lender of its Note, the Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply
with this clause (d) shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with Section
10.07(f).



     (e) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts (and related interest amounts) of the Loans, L/C
Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts due under Section
2.03 owing to each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, absent manifest error, and the Borrower, each Agent
and each Lender shall 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



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



     (f) Any Lender may at any time, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement;
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, each Agent and each other Lender 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 the other Loan
Documents and to approve any amendment, modification or waiver of any provision of this Agreement
or the other Loan Documents; 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 Section 10.01(a)(ii) that directly affects such Participant. Subject to
Section 10.07(g), each Participant shall be entitled to the benefits of Section 3.01, and Sections
3.04 through 3.07 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 10.07(d). To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.10 as though it were a Lender; provided that such
Participant agrees to be subject to Section 2.13 as though it were a Lender.



     (g) A Participant shall not be entitled to receive any greater payment under Section 3.01 and
Sections 3.04 through 3.07 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent and such Participant complies with
Section 10.16 as if such Participant were a Lender under Section 10.16. A Participant shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 10.16 as though it were a Lender.



     (h) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement 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.



     (i) Notwithstanding anything to the contrary contained herein:




     (i) any Lender (a “Granting Lender”) may grant to a special purpose
funding vehicle (an “SPC”) identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower the option to provide all or any part
of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that



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     (A) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and




     (B) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof.




     (ii) (A) neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Agreement (including its obligations under Section 3.01 or 3.04 through
3.07), (B) no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement for which a Lender would be liable, and (C) the Granting Lender shall for
all purposes, including the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder. The making of a Loan
by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender.




     (iii) any SPC may (A) with notice to, but without prior consent of the Borrower or the
Administrative Agent and with the payment of a processing fee of $3,500, assign all or any
portion of its right to receive payment with respect to any Loan to the Granting Lender and
(B) disclose on a confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee
or credit or liquidity enhancement to such SPC.



     (j) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Loans owing to it and the Note, if any,
held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities; provided that unless and until such trustee actually
becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge
shall release the pledging Lender from any of its obligations under the Loan Documents, (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents
even though such trustee may have acquired ownership rights with respect to the pledged interest
through foreclosure or otherwise (unless such trustee is an Eligible Assignee which has complied
with the requirements of Section 10.07(d)).



     Section 10.08. Successors. Notwithstanding anything to the contrary contained herein, JPMCB
may, upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or Swing Line
Lender; provided that on or prior to the expiration of such
30-day period with respect to JPMCB’s
resignation as L/C Issuer, JPMCB shall have identified a successor L/C Issuer reasonably acceptable
to the Borrower willing to accept its appointment as successor L/C Issuer. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint a
successor L/C Issuer or Swing Line Lender from among the Lenders willing to accept such
appointment; provided that a failure by the Borrower to appoint any such successor shall not affect
the resignation of JPMCB as L/C Issuer or Swing Line Lender, as the case may be, except as provided
above. If JPMCB resigns as L/C Issuer, it shall retain all the



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rights and obligations of the L/C Issuer with respect to all Letters of Credit outstanding as of
the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If JPMCB resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loan pursuant
to Section 2.04(c).




     Section 10.09. Confidentiality. Each Agent and each Lender agrees to maintain the
confidentiality of the Information, except that the Information may be disclosed (a) to its
directors, officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and who have agreed or are otherwise
obligated to keep such Information confidential, and the applicable Agent or Lender shall be
responsible for compliance by such Persons with such obligations); (b) to the extent requested by
any regulatory authority having jurisdiction over the applicable Agent or Lender; (c) to the extent
required by applicable Laws or regulations or by any subpoena or similar legal process; provided
that the Agent or Lender that discloses any Information pursuant to this clause (c) shall provide
the Borrower prompt notice of such disclosure; (d) to any other party to this Agreement; (e)
subject to an agreement containing provisions substantially the same as (or no less restrictive
than) those of this Section 10.09 (or as may otherwise be reasonably acceptable to the Borrower),
(x) to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (y) to any direct,
indirect, actual or prospective counterparty (and its advisor) to any swap, derivative or
securitization transaction related to its obligations under this Agreement; (f) with the written
consent of the Borrower; (g) to the extent such Information becomes publicly available other than
as a result of a breach of this Section 10.09; (h) to any state, Federal or foreign authority or
examiner (including the National Association of Insurance Commissioners or any other similar
organization) regulating any Lender; or (i) to any rating agency when required by it (it being
understood that, prior to any such disclosure, such rating agency shall be informed of the
confidential nature of the Information received by it from such Lender and instructed to preserve
the confidentiality of such Information). In addition, any Agent and any Lender may disclose the
existence of this Agreement and information about this Agreement to market data collectors, similar
service providers to the lending industry, and service providers to any Agent and any Lender in
connection with the administration and management of this Agreement, the other Loan Documents, the
Commitments, and the Credit Extensions. For the purposes of this
Section 10.09, “Information” means
all information received from any Loan Party relating to any Loan Party or its business, other than
any such information that is publicly available to any Agent or any Lender prior to disclosure by
any Loan Party other than as a result of a breach of this Section 10.09.



     Section 10.10. Set-off. In addition to any rights and remedies of each Lender provided by
Law, upon the occurrence and during the continuance of any Event of Default, after obtaining the
prior written consent of the Administrative Agent, each Lender is authorized at any time and from
time to time, without prior notice to any Loan Party, any such notice being waived by the



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Borrower (on its own behalf and on behalf of each other Loan Party) to the fullest extent permitted
by Law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final, but not any deposits held in a custodial, trust or other fiduciary capacity), at any time
held by, and other Indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to such Lender
hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or
not such Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although such Obligations may
be contingent or unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such set off and application made by such Lender; provided that the failure to give
such notice shall not affect the validity of such setoff and application. The rights of the
Administrative Agent and each Lender under this Section 10.10 are in addition to other rights and
remedies (including other rights of setoff) that the Administrative Agent and such Lender may have.




     Section 10.11. Interest Rate Limitation. Notwithstanding anything to the contrary contained
in any Loan Document, the interest paid or agreed to be paid under any Loan Document shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).
If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest contracted for, charged,
or received by an 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.



     Section 10.12. Counterparts. This Agreement and each other Loan Document may be executed in
one or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery by telecopier of an executed counterpart of
a signature page to this Agreement and each other Loan Document shall be effective as delivery of
an original executed counterpart of this Agreement and such other Loan Document. The Agents may
also require that any such documents and signatures delivered by telecopier be confirmed by a
manually signed original thereof; provided that the failure to request or deliver the same shall
not limit the effectiveness of any document or signature delivered by telecopier.



     Section 10.13. Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of any Agent or any Lender in any other Loan Document shall not be deemed a
conflict with this Agreement and subject, in the case of Letter of Credit Applications, to the last
sentence of Section 2.03(b)(i). Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.



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     Section 10.14. Survival of Representations and Warranties. All representations
and warranties made hereunder and in any other Loan Document or other document delivered
pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and
delivery hereof and thereof. Such representations and warranties have been or will be relied upon
by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or
on their behalf and notwithstanding that any 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.



     Section 10.15. Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.



     Section 10.16. Tax Forms. (a) (i) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.




     (ii) Without limiting the generality of the foregoing, in the event that the Borrower
is resident for tax purposes in the United States, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent, on or prior to the date which is ten Business Days
after the Closing Date (or upon accepting an assignment of an interest herein), two duly
signed, properly completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or reduction of,
United States withholding tax on all payments to be made to such Foreign Lender by the
Borrower or any other Loan Party pursuant to this Agreement or any other Loan Document) or
IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower or any other Loan Party pursuant to this Agreement or any
other Loan Document) or such other evidence reasonably satisfactory to the Borrower and the
Administrative Agent that such Foreign Lender is entitled to an exemption from, or
reduction of, United
States withholding tax, including any exemption pursuant to Section 881(c) of the
Code, and in the case of a Foreign Lender claiming such an exemption under Section 881(c)
of the Code, a certificate that establishes in writing to the Borrower and the
Administrative Agent that such Foreign Lender is not (A) a “bank” as defined in Section
881(c)(3)(A) of the Code, (B) a 10-percent shareholder within the meaning of Section
871(h)(3)(B) of the Code, or



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(C) a controlled foreign corporation related to the Borrower within the meaning of Section
864(d) of the Code. Thereafter and from time to time, each such Foreign Lender shall (1)
promptly submit to the Borrower and the Administrative Agent such additional duly and
properly completed and signed copies of one or more of such forms or certificates (or such
successor forms or certificates as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current United States
laws and regulations to avoid, or such evidence as is reasonably satisfactory to the
Borrower and the Administrative Agent of any available exemption from, or reduction of,
United States withholding taxes in respect of all payments to be made to such Foreign
Lender by the Borrower or other Loan Party pursuant to this Agreement, or any other Loan
Document, in each case, (x) on or before the date that any such form, certificate or other
evidence expires or becomes obsolete, (y) after the occurrence of any event requiring a
change in the most recent form, certificate or evidence previously delivered by it to the
Borrower and the Administrative Agent and (z) from time to time thereafter if reasonably
requested by the Borrower or the Administrative Agent, and (2) promptly notify the Borrower
and the Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.




     (iii) Each Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Foreign Lender
under any of the Loan Documents (for example, in the case of a typical participation by
such Foreign Lender), shall deliver to the Borrower and the Administrative Agent on the
date when such Foreign Lender ceases to act for its own account with respect to any portion
of any such sums paid or payable, and at such other times as may be necessary in the
determination of the Borrower or the Administrative Agent (in either case, in the
reasonable exercise of its discretion), (A) two duly signed, properly completed copies of
the forms or statements required to be provided by such Foreign Lender as set forth above,
to establish the portion of any such sums paid or payable with respect to which such
Foreign Lender acts for its own account that is not subject to United States withholding
tax, and (B) two duly signed, properly completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Foreign Lender chooses to transmit
with such form, and any other certificate or statement of exemption required under the
Code, to establish that such Foreign Lender is not acting for its own account with respect
to a portion of any such sums payable to such Foreign Lender.




     (iv) Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender’s status for U.S.
withholding tax purposes, each Lender agrees promptly to deliver to the Administrative
Agent or the Borrower, as the Administrative Agent or the Borrower shall reasonably
request, on or prior to the Closing Date, and in a timely fashion thereafter, such other
documents and forms required by any relevant taxing authorities under the Laws of any other
jurisdiction, duly executed and completed by such Lender, as are required under such Laws
to confirm such Lender’s entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such



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Lender outside of the U.S. by the Borrower pursuant to this Agreement or otherwise to
establish such Lender’s status for withholding tax purposes in such other jurisdiction.
Each Lender shall promptly (i) notify the Administrative Agent of any change in
circumstances which would modify or render invalid any such claimed exemption or reduction,
and (ii) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
such jurisdiction that the Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. Additionally, the Borrower shall promptly deliver to the
Administrative Agent or any Lender, as the Administrative Agent or such Lender shall
reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter,
such documents and forms required by any relevant taxing authorities under the Laws of any
jurisdiction, duly executed and completed by the Borrower, as are required to be furnished
by such Lender or the Administrative Agent under such Laws in connection with any payment
by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.




     (v) The Borrower shall not be required to pay any additional amount or any indemnity
payment under Section 3.01 to (A) any Foreign Lender with respect to any Taxes required to
be deducted or withheld on the basis of the information, certificates or statements of
exemption such Lender transmits pursuant to this Section 10.16(a), (B) any Foreign Lender
if such Foreign Lender shall have failed to satisfy the foregoing provisions of this
Section 10.16(a), or (C) any U.S. Lender if such U.S. Lender shall have failed to satisfy
the provisions of Section 10.16(b); provided that if such Lender shall have satisfied the
requirement of this Section 10.16(a) or Section 10.16(b), as applicable, on the date such
Lender became a Lender or ceased to act for its own account with respect to any payment
under any of the Loan Documents, nothing in this Section 10.16(a) or Section 10.16(b) shall
relieve the Borrower of its obligation to pay any amounts pursuant to Section 3.01 in the
event that, as a result of any change in any applicable Law, treaty or governmental rule,
regulation or order, or any
change in the interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence at a subsequent
date establishing the fact that such Lender or other Person for the account of which such
Lender receives any sums payable under any of the Loan Documents is not subject to
withholding or is subject to withholding at a reduced rate.




     (vi) The Administrative Agent may deduct and withhold any taxes required by any Laws
to be deducted and withheld from any payment under any of the Loan Documents.



     (b) Each Lender and Agent that is a “United States person” within the meaning of Section
7701(a)(30) of the Code (each, a “U.S. Lender”) shall deliver to the Administrative Agent and the
Borrower two duly signed, properly completed copies of IRS Form W-9 on or prior to the Closing Date
(or on or prior to the date it becomes a party to this Agreement), certifying that such U.S. Lender
is entitled to an exemption from United States backup withholding tax, or any successor form. If
such U.S. Lender fails to deliver such forms, then the



127









 




Administrative Agent may withhold from any payment to such U.S. Lender an amount equivalent to the
applicable backup withholding tax imposed by the Code and the Borrower shall not be liable for any
additional amounts with respect to such withholding.




     (c) If any Governmental Authority asserts that the Borrower or the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other amount from payments
made to or for the account of any Foreign Lender or U.S. Lender, such Foreign Lender or U.S. Lender
shall indemnify the Borrower and the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the Borrower and the
Administrative Agent under this Section 10.16, and costs and expenses (including Attorney Costs) of
the Borrower and the Administrative Agent. The obligation of the Foreign Lenders or U.S. Lenders,
severally, under this Section 10.16 shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the Administrative Agent.



     Section 10.17. Governing Law. (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, EACH AGENT
AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT
RELATED THERETO.



     Section 10.18. Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.18 WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.



128









 





     Section 10.19. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Borrower and the Administrative Agent shall have been notified by each Lender, each
Swing Line Lender and the L/C Issuer that each such Lender, Swing Line Lender and the L/C Issuer
has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each
Agent and each Lender and their respective successors and assigns, except that the Borrower shall
not have the right to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.



     Section 10.20. No Implied Duties. The Borrower acknowledges that (a) the sole role of the
Arrangers is to syndicate the Facilities and to arrange for future amendments and other
modifications hereto and (b) no Agent has any duty other than as expressly provided herein.
Without limiting the generality of the foregoing, the Borrower agrees that no Arranger or Agent
shall in any event be subject to any fiduciary or other implied duties. Additionally, the Borrower
acknowledges and agrees that the Arrangers are not advising the Borrower as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Borrower has consulted and
will continue to consult with its own advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the transactions contemplated hereby
(including any amendments or other modifications hereto), and no Arranger or Secured
Party shall have any responsibility or liability to the Borrower with respect thereto. Any
review by any Arranger or Secured Party of the Borrower, the transactions contemplated hereby or
other matters relating to such transactions will be performed solely for the benefit of such
Arranger or Secured Party and shall not be on behalf of the Borrower.



     Section 10.21. USA Patriot Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower and each Subsidiary Guarantor, which information includes
the name and address of the Borrower or such Subsidiary Guarantor and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the Borrower or such
Subsidiary Guarantor in accordance with the Act.



     Section 10.22. Subordination Provisions Applicable Prior to the Spin-Off.
Notwithstanding anything to the contrary in this Agreement or any other Loan Document, until the
occurrence of the Spin-Off: (a) the Obligations, the Guaranteed Obligations and the Secured
Obligations shall be expressly subordinated to the prior payment in full in cash of (i) the
“Obligations” and the “Guaranteed Obligations” (each as defined in the applicable “Loan Documents”
as defined in the Existing FNIS Credit Agreement), all on the terms set forth in Exhibit J to the
Existing FNIS Credit Agreement (with the term “Subordinated Obligations” referred to therein meaning
the Obligations, the Guaranteed Obligations and the Secured
Obligations and the term “Subordinated Lender” referred to therein meaning the Secured Parties) and (ii) the “Obligations” and the
“Liabilities” (each as defined in the applicable “Operative Documents” as defined in that certain
Master Agreement (Florida Property) dated as of December 30, 1999 among Equifax Inc. (predecessor
in interest to FNIS), Prefco VI Limited Partnership, Atlantic Financial Group Ltd., and SunTrust
Bank, as amended, hereinafter, the “FNIS Florida Lease Master Agreement”), all on the terms set
forth in Exhibit J to the FNIS Florida Lease Master Agreement (with the term “Subordinated
Obligations” referred to therein



129









 







meaning the Obligations, the Guaranteed Obligations and the Secured Obligations and the term
“Subordinated Lender” referred to therein meaning the Secured Parties); (b) no amortization payments
shall be payable prior to January 18, 2014 on the Term Loans; (c) no Liens to secure any of the
Obligations, the Guaranteed Obligations or the Secured Obligations shall be deemed to have been
created (or to be required to exist); and (d) if any other term set forth in this Agreement, any
other Loan Document or any other document giving rise to or securing the Secured Obligations shall
cause the Obligations, the Guaranteed Obligations or the Secured Obligations not to qualify as
“Permitted Subordinated Indebtedness” (under and as defined in the Existing FNIS Credit Agreement or
the FNIS Florida Lease Master Agreement) or to violate any provision of any “Loan Document” as
defined in the Existing FNIS Credit Agreement or of any “Operative Document” as defined in the FNIS
Florida Lease Master Agreement, such term shall be deemed not to apply to the Loan Documents or
other documents giving rise to or securing
the Secured Obligations, as applicable, until the Spin-Off has occurred.



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130









 





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



	 	 	 	 	 	 	 
	 	 	LENDER PROCESSING SERVICES,
      INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer F. Alvarado	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jennifer F. Alvarado	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






[Signature Page to the LPS Credit Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as
     Administrative Agent, Swing Line
     Lender and L/C Issuer and as a
     Lender  
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tina L. Ruyter	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: TINA L. RUYTER	 	 
	 

	 	 	 	Title: VICE PRESIDENT	 	 






[Signature Page to the LPS Credit Agreement]




 









 





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

	 	By:
	 	/s/ Kipling Davis	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Kipling Davis

Title: Senior Vice President	 	 






[Signature page to the LPS Credit Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL
     ASSOCIATION, as Syndication
     Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Karin E. Samuel	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Karin E. Samuel	 	 
	 

	 	 	 	Title: Director	 	 






[Signature Page to the LPS Credit Agreement]




 









 




	 	 	 	 	 	 	 
	 	 	 	 	NAME OF LENDER:

RBS Citizens, National Association	 	 
	 	 	 	 	 	 	 
	 	 	By:
	 	/s/ Darcy Salinger	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Darcy Salinger	 	 
	 	 	 	 	Title: Vice President	 	 




[Signature Page to the LPS Credit Agreement]


 








 





	 	 	 	 	 	 	 
	 	 	 	 	NAME OF
LENDER:

ING CAPITAL LLC	 	 
	 	 	 	 	 	 	 
	 	 	By:
	 	/s/ Robert D. Miners	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Robert D. Miners	 	 
	 	 	 	 	Title: Vice President	 	 
	 	 	 	 	 	 	 
	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 




[Signature Page to the LPS Credit Agreement]


 








 





	 	 	 	 	 	 	 
	 	 	 	 	NAME OF
LENDER:

SUNTRUST BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Timothy M. O’Leary	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Timothy M. O’Leary	 	 
	 

	 	 	 	Title: Managing Director	 	 






[Signature Page to the LPS Credit Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	NAME OF LENDER:

WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 	 	 	 	 	 	 




	 	 	 	 	 	 	 
	 	 	By:
	 	/s/ Elizabeth S. Collins	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Elizabeth S. Collins	 	 
	 	 	 	 	Title: Sr. Vice President	 	 



[Signature
Page to the LPS Credit Agreement]


 











 







	 	 	 	 	 
	 	 	NAME OF LENDER:
	 
	 	 
	 	 	National City Bank
	 
	 	 
	 	By:  	/s/ Jon R Hinard
 	 
	 	 	Name:  	Jon R Hinard 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 
	 	 	 	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:



The Bank of Nova Scotia

 	 
	 	By:  	/s/ David Mahmood
 	 
	 	 	Name:  	David Mahmood  	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:



Union Bank of California, N.A.

 	 
	 	By:  	/s/
Christine Davis
 	 
	 	 	Name:  	Christine Davis 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	     /s/ Marissa Petri
 	 
	 	 	Name:  	Marissa Petri 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:



TD Bank, N. A.

 	 
	 	By:  	/s/ Charles A.Walker
 	 
	 	 	Name:  	Charles A. Walker  	 
	 	 	Title:  	Sr Vice President 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	RAYMOND JAMES BANK, FSB:

  
	 
	 
	 	By:  	/s/ Steven F. Paley
 	 
	 	 	Name:  	Steven F. Paley 	 
	 	 	Title:  	Sr. Vice President 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:

The Governor and Company of the

Bank of Ireland

 	 
	 	By:  	/s/ Emer Dalton
 	 
	 	 	Name:  	Emer Dalton 	 
	 	 	Title:  	Senior Manager 	 
	 
	 	 	 
	 	By:  	/s/ Elaine Crowley
 	 
	 	 	Name:  	Elaine Crowley 	 
	 	 	Title:  	Senior Manager 	 
	 



[Signature Page to the LPS Credit Agreement]





 












 





	 	 	 	 	 
	 	NAME OF LENDER:




SUMITOMO MITSUI BANKING CORPORATION

 	 
	 	By:  	/s/ Yoshihiro Hyakutome
 	 
	 	 	Name:  	Yoshihiro Hyakutome 	 
	 	 	Title:  	General Manager 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	NAME OF LENDER:




U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Christopher W. Rupp
 	 
	 	 	Name:  	Christopher W. Rupp 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:




United Overseas Bank Limited,




New York Agency

 	 
	 	By:  	/s/ George Lim
 	 
	 	 	Name:  	George Lim  	 
	 	 	Title:  	SVP & GM 	 
	 
	 	 	 
	 	By:  	                                     /s/ Mario Sheng
 	 
	 	 	Name:  	Mario Sheng  	 
	 	 	Title:  	AVP 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:



RBC Bank (USA)

 	 
	 	By:  	/s/ Richard Davis
 	 
	 	 	Name:  	Richard Davis 	 
	 	 	Title:  	Regional Manager 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	NAME OF LENDER:



ALLIED IRISH BANKS, P.L.C.




As a Lender for the Revolving Credit Only

 	 
	 	By:  	/s/ Roisin O’Connell
 	 
	 	 	Name:  	Roisin O’Connell 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                  /s/ Joseph Augustinl
 	 
	 	 	Name:  	Joseph Augustinl 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:




Chang Hwa Commercial Bank, Ltd.,
New York Branch

 	 
	 	By:  	/s/ Jim C.Y. Chen
 	 
	 	 	Name:  	Jim C.Y. Chen 	 
	 	 	Title:  	VP & General Manager 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	NAME OF LENDER:




CIT BANK




 	 
	 	 	 	By: The CIT Group/Equipment 

Financing, Inc., as
attorney-in-fact

 	 
	 	By:  	/s/ Andrew Giangrave
 	 
	 	 	Name:  	ANDREW GIANGRAVE 	 
	 	 	Title:  	MANAGING DIRECTOR

CIT  GROUP 	 
	 



[Signature Page to the LPS Credit Agreement]





 









 





	 	 	 	 	 
	 	 	 	NAME OF LENDER:



STATE BANK OF INDIA

 	 
	 	By:  	/s/   Prabodh Parikh
 	 
	 	 	Name:  	Prabodh Parikh 	 
	 	 	Title:  	Vice President & Head (Credit) 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature
Page to the LPS Credit Agreement]




 









 








	 	 	 	 	 
	 	NAME OF LENDER:

E.Sun Commercial Bank, Ltd., Los Angeles Branch

 	 
	 	By:  	/s/ Benjamin Lin
 	 
	 	 	Name:  	Benjamin Lin 	 
	 	 	Title:  	EVP & GM 	 
	 



[Signature Page to the LPS Credit Agreement]




 









 








	 	 	 	 	 
	 	 	NAME OF LENDER:




Firstrust Bank	 
	 	 	 	 

	 
	 	By:  	/s/ Ellen Frank
 	 
	 	 	Name:  	Ellen Frank  	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to the LPS Credit Agreement]